Management's Discussion and Analysis

Introduction

This FY 2009 Performance and Accountability Report (PAR) was prepared in accordance with the Reports Consolidation Act of 2000 and the Office of Management and Budget's (OMB) Circular A-136, Financial Reporting Requirements. It presents the results of the U.S. Equal Employment Opportunity Commission's programs and financial performance, along with its management challenges. This section of the PAR summarizes agency efforts in each of these areas. A more detailed discussion can be found in the following sections of the report:

• Performance Results: highlight the progress made in meeting the Commission's performance measures, which are articulated in its modified Strategic Plan for FY 2007 through FY 2012.
• The Inspector General's Statements:present key management challenges identified by the Inspector General, the agency's progress and plans to address them, and a statement of compliance with the Federal Managers' Financial Integrity Act (FMFIA).
• The Consolidated Financial Statements: demonstrate the EEOC's efforts to be good stewards over the funds the agency receives to carry out its mission. Included in this section is an independent auditor's opinion on the agency's financial statements.

This report also satisfies the Commission's obligation to provide Congress with annual reports of the agency's significant accomplishments achieved during the fiscal year. This report is available on the EEOC's website at http://www.eeoc.gov/eeoc/plan/2009par.cfm.

Agency Overview

The Equal Employment Opportunity Commission (EEOC or Commission) is the federal agency responsible for enforcing federal laws prohibiting employment discrimination on the basis of race, color, sex, national origin, religion, age, disability, and (soon) genetic information. The agency began its work in 1965. More than 40 years later, the public continues to rely on the Commission to carry out its responsibility to bring justice and equal opportunity to the workplace.

The Commission receives, investigates, and resolves charges of employment discrimination filed against private sector employers, employment agencies, labor unions, and state and local governments. Where the Commission does not resolve these charges through conciliation or other informal methods, it may also file suit in court against private sector employers, employment agencies and labor unions (and against state and local governments in cases alleging age discrimination or equal pay violations). The EEOC also leads and coordinates equal employment opportunity efforts across the federal government, and conducts administrative hearings and issues appellate decisions on complaints of discrimination filed by federal employees and applicants for federal employment. Finally, the Commission engages in extensive communication and outreach, provides technical assistance, and promulgates regulations and written enforcement guidance to help employers and employees better understand their rights and responsibilities under the laws the EEOC enforces.

A more detailed explanation of the EEOC's structure and the laws it enforces can be found in Appendix A.

Agency Results Under Strategic Plan Performance Measures

This PAR is based on the EEOC's current modified Strategic Plan for FY 2007 through FY 2012. The modified Strategic Plan can be found at: http://www.eeoc.gov/eeoc/plan/strategic_plan_07to12_mod.cfm. Because of the change of Administration and the pending confirmation of a new Chair of the Commission (as of the time of this report), the EEOC intends to issue a new and completely revised Strategic Plan before the end of FY 2010. However, the results reported in this PAR are linked to the performance measures contained in the agency's current modified Strategic Plan which were in effect during FY 2009.

The agency's current strategic plan provides one strategic objective: Justice, Opportunity and Inclusive Workplaces. The plan contains nine performance measures under this Strategic Objective. These measures were used to drive results and accountability throughout the agency. The EEOC achieved or exceeded its targets for six measures and did not meet its targets for two measures. A multi-year measure did not require the agency to collect results data this year.

The agency's nine performance measures are directly related to its three front-line enforcement operations—processing private sector charges, litigating private sector cases, and conducting hearings and appeals of federal sector cases—in order to achieve its strategic objective of ensuring that employment opportunities are not based on impermissible factors and encouraging inclusive workplaces nationwide.

The EEOC's current Strategic Plan incorporated three measures which were new to the Commission in FY 2007: an indicator of the yearly percentage increase in the number of individuals benefiting from agency enforcement activities, beyond the actual people who filed a charge of discrimination; an indicator to measure the efficiency the agency attained based upon the number of individuals receiving benefits, compared to the size of the agency's total workforce; and, finally, a measure of the public's confidence in the agency's enforcement of federal employment discrimination laws.

The first two of these measures seek to identify the degree to which the agency's enforcement programs enhance the workplace for other employees when it obtains relief for the people who originally claimed employment discrimination, as well as how efficient the Commission was in obtaining that broad relief. As noted in the table below and further described in the Performance Section of this report, the agency was extremely successful in achieving results for these two measures, when compared to the established targets. (The Commission did not have to report on the "public confidence" measure this fiscal year.)

Although both of these areas reflect important aspects of the agency's work, the Commission will be reviewing these measures for their efficacy as it develops a new Strategic Plan in FY 2010.

The four remaining measures that the EEOC met or exceeded also reflect key aspects of the agency's enforcement and litigation programs. They involve the agency's success in:

• Completing a high percentage of its federal sector appellate cases within 180 days or less;
• Ensuring that the agency achieves a high level of quality in its investigations of private sector discrimination charges;
• Continuing to ensure that charging parties and respondents who choose to participate in the Commission's alternative dispute resolution (ADR) program are satisfied with the ADR process; and
• Maintaining a high level of success in the Commission's litigation program.

The results for these measures are summarized below and are more fully described in the Performance Section of this report.

EEOC's final two measures involve the resolution of private sector charges and federal sector hearings within 180 days or less. It has become increasingly more difficult over the past years to meet the established targets for these two measures, and the Commission did not meets its targets for the measures in FY 2009. The agency will carefully evaluate these measures as it explores in FY 2010 the focus and approach for its new Strategic Plan.

The results for these measures are summarized below and are more fully described in the Performance Section of this report:

Related Program Results and Activities

Rebuilding Resources

Fiscal Year 2009 was a time for the EEOC to regroup and rebuild. During the previous eight years of flat funding and hiring freezes, the Commission's staff had declined by nearly 25 percent. This severely hindered its ability to carry out its critical enforcement functions. However, this past year, as a result of increased appropriations, the EEOC was able to begin replenishing its depleted ranks. During FY 2009, the agency set out to hire an additional 125 investigators, 22 trial attorneys, 50 support staff, 10 paralegals and five expert statisticians and labor economists to support the agency's systemic enforcement and litigation programs. By the end of FY 2009, the Commission had brought on board 155 net new hires.

In addition, during FY 2009, the agency dedicated $2.5 million to train its investigators, attorneys, program analysts, and other employees. This training initiative was the largest the agency has conducted in at least a decade, and provided EEOC employees with critical skills and knowledge for investigating and litigating cases involving systemic discrimination. The effort also maximized the use of technology to carry out localized, low-cost training where appropriate.

Securing Unprecedented Relief through Administrative Enforcement

The EEOC secured, through its private sector administrative enforcement activities, more than $294.1 million in monetary benefits—the highest level of monetary relief obtained through administrative enforcement in the Commission's history. Overall, the EEOC secured both monetary and non-monetary benefits for more than 17,491 people through charge processing.

In FY 2009, the EEOC received 93,277 private sector charges of discrimination, which was the second highest amount received in the past 20 years (second only to FY 2008). The agency also received 2,728 charges through net transfers from state and local Fair Employment Practices Agencies (FEPAs).

The agency achieved 85,980 resolutions, with a merit factor resolution rate of 20.3 percent. (Merit factor resolutions include mediation and other settlements and cause findings, which, if not successfully conciliated, are considered for litigation.) In comparison, the merit factor resolution rate for FY 2008 was 21.4 percent.

Managing Private Sector Charge Inventory

The near-record number of receipts in FY 2009 left the Commission with a pending inventory at the end of the fiscal year of 85,768 charges, compared with the FY 2008 figure of 73,951 (an increase of 11,817 charges, or a 15.9 percent increase over the number of charges pending at the end of FY 2008). The agency took a number of steps in FY 2009 aimed at reducing this inventory, and these efforts will continue into FY 2010. These measures include aggressive hiring of front-line staff, reinvigorating the Commission's Priority Charge Handling Procedures (including a significant agency-wide training initiative), renewing emphasis on pre-charge counseling, and identifying and implementing best practices in charge handling.

Mediating to Win-Win

In FY 2009, the EEOC's private sector national mediation program secured 8,498 resolutions which, while 3.9 percent less than the 8,840 reported in FY 2008, was the third highest total in the history of the program. The EEOC obtained more than $121.6 million in monetary benefits for complainants from mediation resolutions, which is slightly below the $124 million in monetary benefits in FY 2008.

Litigating High Impact Cases

In FY 2009, EEOC field legal units filed 281 merits lawsuits and 32 subpoena enforcement and other actions. Of these new filings, 170 were individual suits and 111 were class suits. Legal staff resolved 319 merits lawsuits for a total monetary recovery of $80,628,935. Of these resolutions, 249 contained Title VII claims, 40 contained Americans with Disabilities Act claims, 38 contained Age Discrimination in Employment Act claims, and five contained Equal Pay Act claims.

Targeting Systemic Discrimination

In FY 2009, the agency continued its concerted effort to build a strong national systemic enforcement program. At the end of FY 2009, 39 Commissioners' charges were under investigation, compared with only 15 Commissioners' charges in investigation as of March 2006, when the initiative began. Systemic investigations based on charges filed by the public have also increased significantly. Further, in FY 2009, the Commission filed 19 new systemic cases, each of which is expected to benefit substantial numbers of victims of discrimination.

Promoting EEO in the Federal Sector

In FY 2009, the EEOC received a total of 7,277 requests for hearings, which is less than the 8,036 received in FY 2008. Additionally, the Commission's hearings program resolved a total of 6,779 complaints and secured more than $44.5 million in relief for parties in these complaints. During FY 2009, the EEOC received 4,745 requests for appeals of final agency actions in the federal sector. The agency resolved 4,287 appeals—65 percent of which were resolved within 180 days of receipt.

Reaching, Training, and Educating Stakeholders

The agency's outreach programs reached 238,017 persons in FY 2009. EEOC offices participated in 4,240 educational, training, and outreach events (a decrease in the number of events over the same period in FY 2008, when there were 5,360 events). In addition, in FY 2009 the EEOC Training Institute (formerly the Revolving Fund) trained over 20,000 individuals from the private sector, local, state, and federal governments at more than 500 events.

Drafting Regulations, Enforcement Guidance, and Technical Assistance

In FY 2009, the Commission approved a Notice of Proposed Rulemaking and later submitted a final regulation to the Office of Management and Budget under Title II of the Genetic Information Nondiscrimination Act of 2008, which the EEOC will begin enforcing on November 21, 2009. This past fiscal year the EEOC also approved a Notice of Proposed Rulemaking to implement the employment provisions of the Americans with Disabilities Act Amendments Act of 2008. Further, in FY 2009 the agency also issued several important technical assistance documents, which provide plain-language explanations of EEOC policy on discrete issues, including: Best Practices for Workers with Caregiving Responsibilities; a web-based document providing employers with information on ADA-Compliant Employer Preparedness for the H1N1 Flu Virus; and a Questions and Answers document on Understanding Waivers of Discrimination Claims in Employee Severance Agreements.

Increasing Access to the EEOC

While the EEOC has continually initiated activities designed to better serve the public through its 53 field offices, including e-mail access and website enhancements, the agency has also become much more accessible through the establishment of the Intake Information Group (IIG), an in-house customer service operation. The full transition of this function from the former National Contact Center to the IIG began in FY 2008 with the hiring and training of EEOC staff and the acquisition of technology to support this program. The full transition was completed in February 2009.

Enforcing New Laws, Tackling New Challenges

This past fiscal year, the EEOC was given increased statutory authority through the passage of the Americans with Disabilities Act Amendments Act of 2008 and the Lilly Ledbetter Fair Pay Act of 2009, both currently in effect. On November 21, 2009, the Commission will also begin to enforce Title II of the Genetic Information Nondiscrimination Act of 2008. These additional statutory responsibilities likely will cause an increase in the number of charges the EEOC receives (indeed, the agency already has noticed an uptick in the number of charges filed under the Americans with Disabilities Act).

Federal Managers' Financial Integrity Act

The EEOC's management controls and financial management systems were sound during FY 2009, with the exception of 18 findings of financial non-conformances. Four financial non-conformances were carried over from FY 2008. The financial non-conformances were identified in several audit reports prepared by the Office of Inspector General: OIG Report No. 2007-09-FIN, January 16, 2008; OIG Report No. 2008-05-FIN, November 14, 2008; and OIG Report No. 2008-06-FIN, December 11, 2008.

In FY 2009, the agency identified 18 financial non-conformances, including four that carried over from the previous fiscal year. Of the 18 identified, the agency fully corrected eight financial non-conformances in FY 2009, including one that had carried over from FY 2008. Of the 10 remaining financial non-conformances, the agency has implemented corrective action plans to resolve the findings in FY 2010.

Based on the actions taken, and considering the agency's controls environment as a whole, the agency concludes that during FY 2009, its financial and management controls systems were in compliance with the Federal Managers' Financial Integrity Act (FMFIA). Forty-four percent of the identified non-conformances were resolved during the fiscal year, and it has plans in place to resolve the remaining financial non-conformances in FY 2010. The controls systems were effective; agency resources were used consistent with the agency's mission; the resources were used in compliance with laws and regulations; and, there was minimal potential for waste, fraud, and mismanagement of the resources.

Financial Highlights

The Office of Management and Budget (OMB) Circular Number A-136 Revised dated June 10, 2009, was used as guidance for the preparation of the accompanying financial statements. EEOC prepares four financial statements: Consolidated Balance Sheets, Consolidated Statements of Net Cost, Consolidated Statement of Changes in Net Position, and Combined Statements of Budgetary Resources.

Consolidated Balance Sheets

The Consolidated Balance Sheets present amounts that are owned or managed by EEOC (assets); amounts owed (liabilities); and the net position of the agency divided between the cumulative results of operations and unexpended appropriations.

Image

EEOC's balance sheets show total assets of $78 million at the end of FY 2009. This is an increase of $1 million, or approximately 1 percent, over EEOC's total assets of $77 million for FY 2008. This increase is due primarily to an increase in Property, Plant, and Equipment, including leasehold improvements, of $10 million offset by a decrease in EEOC's Fund Balance with Treasury of $9 million.

The Net Position is the sum of Unexpended Appropriations and the Cumulative Results of Operations. At the end of FY 2009, EEOC's Net Position on its Balance Sheets and the Statement of Changes in Net Position is $17 million, an increase of $3 million, or 21 percent, over the FY 2008 ending Net Position of $14 million. This increase is due primarily to a decrease in EEOC's Cumulative Results of Operations for Fiscal Year 2009 and an offsetting increase in its Appropriations Used the same year.

Consolidated Statements of Net Cost

The Consolidated Statements of Net Cost presents the gross cost incurred by major programs less any revenue earned. Overall, in FY 2009, EEOC's Consolidated Statements of Net Cost increased by $11 million or 3 percent. The allocation of costs for FY 2009 shows that Private Sector resources used for Enforcement and Litigation increased $11 million, or 3 percent, while the Federal Sector Programs was the same as for the past fiscal year.

Image

Consolidated Statement of Changes in Net Position

The Consolidated Statement of Changes in Net Position represent the change in the net position for FY 2009 and FY 2008 from the cost of operations, appropriations received and used, net of rescissions, and the financing of some costs by other government agencies. The Consolidated Statement of Changes in Net Position increased over last year by $3 million, or 19 percent. EEOC's total assets exceeded total liabilities (funded and unfunded) by $17 million, or 27 percent.

Combined Statements of Budgetary Resources

The Combined Statements of Budgetary Resources shows how budgetary resources were made available and the status of those resources at the end of the fiscal year. In FY 2009, EEOC received a $343.9 million appropriation, with no rescission.

EEOC ended FY 2009 with an increase in total budgetary resources of $14 million, or 4 percent, over last year. Resources not available for new obligations at the end of the year totaled $10 million and $9 million in FY 2009 and FY 2008, respectively. The unobligated balance not available represents expired budget authority from prior years that are no longer available for new obligations.

Use of Resources

The pie chart displays EEOC's FY 2009 use of resources by major object class. The chart shows that Pay and Benefits, State & Local, Rent to GSA and Other Contractual Services consumed 94 percent of EEOC's resources, and other expenses (e.g., travel & transportation, equipment, supplies & materials, etc.) consumed less than 6 percent of EEOC's resources for FY 2009.

 

Image

The dual axis chart below depicts EEOC's compensation and benefits versus full-time equivalents (FTE) over the past six years. EEOC ended FY 2009 with 2,192 FTEs, a net increase of 16, or less than 1 percent, above FY 2008.

Image

Note: A Full Time Equivalent (FTE) is an employee who works a full-time schedule for the entire fiscal year. The number of FTEs in the above chart may not equal the actual number of employees because, for example, if an employee were hired in the middle of the fiscal year, that position would be counted as half of an FTE.