ADR Report: ADR in the Federal Sector EEO Process for FY 2006

3. Time to Complete ADR Attempts Increases by Two Days

The maximum time allowed for ADR during the pre-complaint process is 90 days. 29 C.F.R. §1614.105(f). A three-year analysis of the data, as provided in Table 5, shows that the average time for ADR attempts during the pre-complaint process decreased from 46 in FY 2004 to 36 days in FY 2005; however, in FY 2006, there was a 2 day increase to 38 days. As such, efficiency was impacted by a decline of 5.5%. These processing times remain well within the 90-day maximum allowed for ADR. The most efficient ADR techniques in FY 2006 were Ombuds and "Other Techniques" which averaged 28 days.[7] In contrast, "Early Neutral Evaluation" represented the ADR technique with the longest process time, averaging 70 days in FY 2006.

Section C Sources of ADR Neutrals in Pre-Complaint Stage

The ADR Act defines a neutral as an individual who, with respect to an issue in controversy, functions specifically to aid the parties in resolving the controversy.[9] In the federal sector, ADR programs have the discretion to select the source(s) of neutrals to conduct ADR proceedings. Federal sector ADR programs selected neutrals from the following sources: (1) in-house (employees within the agency trained in ADR); (2) another federal agency; (3) private organizations; (4) multiple sources; and (5) other sources.[10]

1. In FY 2006, the Primary Source of Neutrals was Private Organizations

As shown in Table 6, neutrals from private organizations (including bar associations, individual volunteers, and contractors) were selected more often than any other source of neutrals. A two-year analysis of the data shows that the percentage of neutrals from "Private Organizations" and "In-House" remained the same. "Another Federal Agency" decreased by 1%. In FY 2006, "Other Sources" and "Multiple Sources" are at one percent. Historically, neutrals from Private Organizations have been utilized the most.

2. Excluding U.S. Postal Service, In-House Neutrals Dominate

In FY 2006, the U.S. Postal Service used private organizations exclusively in its 9,448 ADR attempts. In FY 2006, when the U.S. Postal Service data is excluded from the 13,451 government-wide counselings that attempted ADR, federal agencies selected "In-House" neutrals more frequently than any other source of neutrals.

Excluding U.S. Postal Service data, a two-year analysis of the data shows that the use of "In-House" neutrals has remained at 49%. Since FY 2000, the use of "In-House" neutrals remains the primary source of neutrals, excluding U.S. Postal Service data.

Section D Effectiveness of ADR in the Pre-Complaint Stage

One factor in determining the effectiveness of ADR in the federal sector EEO process is the percentage of EEO disputes that are resolved each fiscal year.[11] Of the 17,310 ADR closures during the pre-complaint process in FY 2006, the ADR process resulted in 8,671 (50%) resolutions.[12] See Figure 2. A three-year analysis of the data shows that the ADR resolution rate increased from 49% in FY 2004 to 51% in FY 2005 with a slight decrease to 50% in FY 2006.[13]

1. Defense National Guard Bureau had Highest ADR Resolution Rate

As shown in Table 7, the Defense National Guard Bureau had the highest ADR resolution rate in the pre-complaint process of agencies that had greater than ten ADR closures.

2. National Aeronautics and Space Administration: Most Improved Resolution Rate

As shown in Table 8, in FY 2006, the National Aeronautics and Space Administration had the most improved ADR resolution rate of agencies that had greater than ten ADR closures.

3. Average Processing Time (APT) of Pre-Complaint ADR Closures is Improving

A three-year analysis of the data shows that the average processing time (APT) for ADR closures during the pre-complaint process decreased from 61 days in FY 2004 to 41 days in FY 2005 and again decreased to 40 days in FY 2006. Table 9 shows the average processing time in FY 2006.[14]

4. National Guard Bureau had Fastest APT for ADR Closures

For the third year in a row, the Defense National Guard Bureau repeats having the fastest average processing time (APT) for ADR closures in the pre-complaint process of agencies that had greater than ten ADR closures. See Table 10. The government-wide average in FY 2006 is 40 days.

5. Overall Resolution Rate Increases by One Percent

Chapter 2, Section VII (A) of the MD-110 provides that if ADR is offered at the informal stage of the EEO process, the aggrieved individual must elect between ADR and the traditional counseling process either at the initial counseling session or within a reasonable time thereafter. Once the aggrieved individual has elected to proceed through counseling or ADR, the decision is final. Data for resolutions, either through the traditional counseling process or the ADR process is provided by agencies in their annual Form 462 report. Resolution rates are determined based on settlements and "no formal complaint filed" data.

As shown in Table 11, of the 38,824 counselings that were completed in FY 2006, 21,430 were resolved through EEO Counseling or ADR, including a total of 7,424 settlements while in FY 2005 there was a total of 7,652 settlements out of 22,038 resolutions. A six-year analysis of the data shows that the total resolution rate increased by four percentage points from 51% in FY 2001 to 55% in FY 2006.

6. EEO Counseling Resolution Rate Continues to Exceed ADR Resolution Rate

From FY 2000 to FY 2006, ADR overall averaged a resolution rate of 56%, while EEO counseling has averaged a resolution rate of 54%. However, since FY 2003 the EEO counseling resolution rate has exceeded the ADR resolution rate. Specifically, in FY 2003, the EEO counseling resolution rate was 64%, while the ADR resolution rate was 60%. In FY 2004, the EEO counseling resolution rate decreased to 54% and the ADR resolution rate decreased to 49%. In FY 2005, the EEO counseling resolution rate remained at 54% but the ADR resolution rate climbed to 51%. In FY 2006, the EEO counseling resolution rate increased to 59% and the ADR resolution rate decreased by one percent to 50%.

Section E Benefits Obtained Through ADR Settlements in the Pre-Complaint Stage

The types of monetary benefits reported were: (1) compensatory damages; (2) back pay/front pay; (3) lump sum; (4) attorney's fees; and (5) other monetary benefits. The types of non-monetary benefits reported were: (1) new hire; (2) promotion; (3) reinstatement; (4) expungements; (5) transfer; (6) rescind removal/voluntary resignation; (7) reasonable accommodation; (8) leave restored; (9) reassignment; (10) details; (11) desk audits; (12) appraisals; and (13) other non-monetary benefits.

1. ADR Settlements Are Less Expensive on Average than EEO Counseling Settlements

During the pre-complaint process in FY 2006, 7,424 counselings resulted in settlements, either with the use of ADR, or traditional EEO counseling. Of this number, 7,033 settlements included non-monetary benefits and 622 settlements included monetary benefits, totaling $1,666,651. ADR efforts resulted in 5,808 settlements and included 417 with monetary benefits totaling $980,798, while EEO counseling resulted in 1,616 settlements and included 205 with monetary benefits totaling $685,853.

It is interesting to note that although the total number of ADR settlements decreased by 462 settlements in FY 2006, the number that included monetary benefits increased by five with a total dollar increase of $10,991. As a result, in FY 2006, the average monetary ADR settlement amount was $2,352, down two dollars from FY 2005, and for traditional EEO counseling the average settlement amount was $3,346, down $896 from FY 2005. These figures represent a slight decrease for ADR settlements and 21% decrease in the traditional EEO counseling average monetary settlement. Notably, in FY 2005, the average EEO settlement exceeded the average ADR settlement by $1,888. In FY 2006, the difference between the EEO counseling average monetary settlement and the average ADR monetary settlement has been more than halved to a difference of $994. The total average monetary benefit for ADR and EEO counseling settlements decreased by $232 from FY 2005 to FY 2006. Table 12 provides a five year analysis of monetary benefits.

2. "Lump Sum" Payments Most Frequently Reported

Table 13 shows that in FY 2006, the "Lump Sum" payment was the most frequently used type of monetary settlement benefit. At $11,268, Compensatory Damages had the highest average of monetary benefits in ADR settlements, while at $4,096, Lump Sum was the highest in EEO counseling settlements. We note that the total number of counselings that settled with monetary benefits does not equal the aggregate of each type of monetary benefit since one settlement agreement could include more than one type of monetary benefit.[16]

3. "Other Non-Monetary Benefits" Most Frequently Reported

Examples of non-monetary benefits include improved communication, a detail, a desk audit, leave restored, or a reassignment of duties. During the pre-complaint process in FY 2006, ADR efforts resulted in 5,808 settlements, including 5,557 with non-monetary benefits and EEO counseling resulted in 1,616 settlements including 1,476 with non-monetary benefits.

Table 14 shows that in FY 2006, "Other Non-Monetary Benefits" was the category most frequently reported, in that it was provided by agencies in 76% of all ADR settlements and 50% of all EEO counseling settlements.

Section F ADR Usage in the Formal Complaint Stage

If a dispute is not resolved through the pre-complaint stage ADR process or the traditional counseling process, the agency issues a notice of right to file a discrimination complaint to the aggrieved person. The notice informs the individual of the process to file a formal discrimination complaint. The Formal Complaint stage of the EEO process is initiated when the aggrieved person files a discrimination complaint.

Agencies are required by EEOC regulations to have an ADR program available for both the pre-complaint and formal complaint processes. However, they have the discretion to determine when an EEO matter is appropriate for ADR, and at what point in the EEO process to offer ADR.[19] Agencies may establish written procedures to identify when ADR will be offered, or they may decide to offer ADR on a case-by-case basis.

1. Data Collection Change Impacts Rates of Government-wide ADR Usage in FY 2006

In FY 2006, 19,119 formal complaints were closed.[20] Of those complaints, agencies offered ADR to 2,737 which represents an Offer Rate of 14.3% and 1,057 were accepted into agency programs for a 5.53% participation rate. Like in the pre-complaint stage, for some indices, comparison of FY 2006 data with prior year's data is unavailing but will be provided for informational purposes. And while the data shows an approximate doubling of the offer rate and participation rate from FY 2005 to FY 2006, the increase in both rates is related to the change in the type of data collected.[21] The data continues to show that ADR is significantly under-utilized at the formal complaint stage due, in large part, to agencies' failure to offer ADR once a formal complaint has been filed.

A five-year chart of the data, Figure 3 below, compares for informational purposes the decrease in "complaint workload" data gathered in FY 2005, to "closed complaints" data gathered in FY 2006. We note that the number of ADR offers and ADR participants remained comparable during the last three fiscal years.

2. Government-Wide ADR Usage Impacted by U.S Postal Service Low Offer Rate

Because the U.S. Postal Service accounted for 7,785 cases (40.7%) out of the 19,119 complaint closures in FY 2006, the government-wide data is largely impacted by that agency. When the FY 2006 data is examined excluding the U.S. Postal Service's low Offer Rate (0.54%) and low Participation Rate (.44%), the government-wide ADR Offer Rate at the formal complaint stage increases from 14.3% to 23.8%, and the ADR Participation Rate increases from 5.53% to 9.03%. Figure 4 shows the U.S. Postal Service ADR usage as compared to all other agencies.

3. Four Agencies Have Highest ADR Offer Rate

In FY 2006, for agencies with ten or more closed complaints, four agencies, as shown in Table 15, had 100% ADR offer rates in the formal complaint process. A table with the ranking of agencies by ADR rates is located at www.eeoc.gov/federal/adr/datatables/index.html.

4. National Aeronautics and Space Administration had Highest ADR Participation Rate

In FY 2006, for agencies with ten or more closed complaints, the National Aeronautics and Space Administration, as shown in Table 16, had the highest ADR participation rate in the formal complaint process.

Section G ADR Techniques Used in the Formal Complaint Stage

Federal agencies have flexibility in selecting the types of ADR techniques to use in their respective ADR programs. Agencies may consider their mission and their workplace culture to determine which ADR techniques will best meet the needs of their workforce.

1. Mediation was Primary Choice as ADR Technique

In FY 2006, agencies reported 998 ADR attempts during the formal complaint process. Mediation, as shown in Table 17, was selected in 85% of all formal complaints that attempted ADR in FY 2006. Since FY 2003, mediation has been used more than any other ADR technique at the formal complaint stage of the EEO process, averaging 86% of all ADR attempts. All reporting agencies used mediation as its primary ADR technique except Defense National Geospatial-Intelligence Agency which used Settlement Conference in two out of three ADR attempts. Mediation continued to be the preeminent ADR technique during the formal complaint process in FY 2006.

2. Efficiency of ADR Attempts Increases by 16 Days

The maximum time allowed for ADR during the formal complaint process is 90 days. A three-year analysis of the data, as contained in Table 18, shows that the average processing time (APT) for ADR attempts during the formal complaint process decreased from 92 days in FY 2004 to 60 days in FY 2005 and again decreased to 44 days in FY 2006. The average processing time over the three year period is 65 days.

Section H Sources of Neutrals in the Formal Complaint Stage

The ADR Act defines a neutral as an individual who, with respect to an issue in controversy, functions specifically to aid the parties in resolving the controversy. In the federal sector, ADR programs have the discretion to select the source(s) of neutrals to conduct ADR proceedings.

During FY 2006, federal sector ADR programs selected neutrals from the following sources: (1) in-House (employees within the agency); (2) another federal agency; (3) private organizations; (4) multiple sources; and (5) other sources.

1. In-House Neutrals Most Popular Source of Neutrals and Percent Remains Unchanged

Government-wide data shows that in FY 2006, neutrals from within the agency (In-House) were selected more often than any other source of neutrals at 49%, the same percent as in FY 2005. The second most utilized source of neutrals was Another Federal Agency at 37%, followed by Private Organizations at 11%. Multiple Sources were used in 29 attempts (3%). A three-year analysis of the data shows that neutrals from Private Organizations were used in 55% of the attempts in FY 2004, declining to 14% in FY 2005, and further declining to 11% in FY 2006. This decline can be directly related to the U.S. Postal Service's decline in ADR attempts from 973 in FY 2004 to 37 attempts in FY 2005 to 30 attempts in FY 2006. The U. S. Postal Service uses private organization neutrals almost exclusively. Table 19 shows the percentage for sources of neutrals.

Section I Effectiveness of ADR in the Formal Complaint Stage

One factor in determining the effectiveness of ADR in the federal sector EEO process is the percentage of EEO disputes that are resolved. Of the 1,057 ADR closures during the formal complaint process in FY 2006, 735 (70%) resulted in a settlement or withdrawal. A four-year analysis of the data as set forth in Figure 5 shows that since FY 2003, the ADR resolution rate at the formal complaint stage has increased by 28 percentage points from 42% in FY 2003 to 70% in FY 2006. The ADR resolution rate has averaged nearly 64% over the four-year period.

1. Defense Army and Air Force Exchange Service has Highest ADR Resolution Rate

In FY 2006, three agencies with five or more ADR closures had a 100% ADR resolution rate.[23] A table with the complete ranking of agencies by ADR resolution rate is located at www.eeoc.gov/federal/adr/datatables/index.html.[24] Table 20 shows the agencies with the highest ADR resolution rate in the formal complaint process.

2. Two Agencies had Most Improved ADR Resolution Rate

In FY 2006, for agencies with five or more ADR closures, the Tennessee Valley Authority and Equal Employment Opportunity Commission, as shown in Table 21, had the most improved ADR resolution rate in the formal complaint process.[25]

3. Average Processing Time of ADR Closures Increases

A two-year analysis of the data, as set forth in Table 22, shows that the average processing time (APT) for ADR closures during the formal complaint process decreased substantially from 66 days in FY 2005 to 50 days in FY 2006.

4. ADR Resolution Rate of Formal Complaints Increases Slightly

There were a total of 19,119 complaint closures in FY 2006, of which there were 3,490 settlements and 1,594 withdrawals. These resolutions were obtained through ADR and other negotiation processes (non-ADR) during the formal complaint stage. Of these, 1,057 were ADR closures which included 678 settlements and 57 withdrawals. A two-year analysis of the data shows that the ADR Resolution Rate increased from 68.2% in FY 2005 to 69.5% in FY 2006. Table 23 shows the two-year trend of ADR resolutions.

5. Trends in Resolution Rates during the Formal Complaint Process

In FY 2006, the ADR resolution rate of 69.5% exceeded the non-ADR resolution rate of 23.9%. The U.S. Postal Service reported only 34 ADR closures, therefore the government-wide data is not impacted by that agency.

Section J Benefits Obtained Through ADR Settlements in the Formal Complaint Stage

The types of monetary benefits reported were: (1) compensatory damages; (2) back pay/front pay; (3) lump sum; and (4) attorney's fees. The types of non-monetary benefits reported were: (1) new hire; (2) promotion; (3) reinstatement; (4) expungement of records; (5) transfer; (6) rescind removal/voluntary resignation; (7) reasonable accommodation; (8) apology: (9) training; and (10) other non-monetary benefits.

1. Average Amount of Complaint Settlement Benefits Increases

During the formal complaint process in FY 2006, 3,634 complaint closures received monetary benefits, totaling $32,625,668. In FY 2006, the average amount of monetary benefits per complaint closure with benefits was $8,978. From FY 2001 to FY 2006, the six-year average amount of monetary benefits in complaint closures was $7,547. Table 24 shows a six-year comparison of monetary benefits.

2. Average Amount of ADR Monetary Benefits Increases

During the formal complaint process in FY 2006, there were 678 ADR settlements of which 313 had monetary benefits totaling $3,554,975. The average amount of monetary benefits for ADR settlements was $11,358. From FY 2001 to FY 2006, the six-year average amount of monetary benefits in ADR complaint closures is $10,044. The six-year average amount of monetary benefits in non-ADR settlements is $7,266. Table 24, above, shows a six-year comparison of ADR monetary benefits.

3. "Lump Sum" Payments Are Most Frequently Reported Monetary Settlement

Table 25 table shows that in FY 2006, "Lump Sum" payments were the most frequently used and had the highest average of monetary benefits.

4. "Other Non-Monetary Benefits" Were Most Frequently Reported

Examples of non-monetary benefits include new hire; promotion; reinstatement; expungement of records; transfer; rescind removal/voluntary resignation; reasonable accommodation; apology; and training. During the formal complaint process in FY 2006, ADR efforts resulted in 678 ADR settlements of which 553 complaints received non-monetary benefits.[27] Table 26 shows that in FY 2006, "Other Non-Monetary Benefits" was the most frequently provided benefit, appearing in 281 of the ADR settlements.[28]

Section K Conclusion

In FY 2006, in the pre-complaint stage, ADR usage remained stable at 45%, and mediation remained the ADR technique used most often. The ADR resolution rate remained constant at 50%, with the average monetary settlement decreasing slightly from $2,354 to $2,352.

In the formal stage there was positive growth in the participation rate, which increased from 2.6% in the prior fiscal year to 5.5% in FY 2006. In addition, the ADR resolution rate increased from 68.2% in the prior fiscal year to 69.5% in FY 2006. ADR settlements were $2,604 higher than non-ADR settlements in FY 2006, as compared to an average of $4,712 higher than non-ADR settlements during the prior fiscal year.

GLOSSARY

ADR Attempts - The number of ADR technique(s) used during a specific fiscal year in completed/ended counselings or complaint closures/closed complaints.

ADR Closures - The number of counselings or complaint closures that complete the ADR process during a fiscal year.

ADR Election Rate - Of the completed/ended counselings or complaint closures that received an ADR offer, the election rate represents the percentage that participated in the ADR process.

ADR Intake Officers - An individual in the ADR program who has been trained to conduct counseling duties for aggrieved individuals who have not contacted the EEO office.

ADR Offer Rate - The percentage of completed/ended counselings or complaint closures that received an ADR offer. A table with the ranking of agencies by offer rate is located at www.eeoc.gov/federal/adr/datatables/index.html

ADR Offers - The decision by an agency to offer ADR to an individual during the EEO process.

ADR Participation Rate - The percentage of completed/ended counselings or complaint closures where both parties agreed to participate in ADR. A table with the ranking of agencies by participation rate is located at www.eeoc.gov/federal/adr/datatables/index.html

ADR Resolution Rate - The percentage of ADR closures that were resolved by either settlement or withdrawal from the EEO process. A table with the ranking of agencies by resolution rate is located at www.eeoc.gov/federal/adr/datatables/index.html.

ADR Techniques - The methods used by an ADR program to resolve disputes. Types of ADR techniques include mediation, settlement conference, facilitation, early neutral evaluation, peer review, ombuds, fact finding, and mini-trial.

ADR Usage - The agreement by both parties to participate in the ADR process.

Alternative Dispute Resolution (ADR) - A term used to describe a variety of approaches to resolve conflict rather than traditional adjudicatory methods. ADR is a process in which a third party neutral assists in resolving disputes by using various techniques including mediation, settlement conference, facilitation, early neutral evaluation, peer review, ombuds, fact finding, and mini-trial to reach a resolution acceptable to the parties.

Average Processing Time - The total number of days divided by the number of ADR attempts in completed/ended counselings or ADR complaint closures.

Complaint Closures - The agency's decision to close a complaint during the formal complaint stage as a result of settlement, withdrawal, dismissal, or merit decision.

Complaint Workload - The combined total of complaints filed, complaints pending from the previous fiscal year, and complaints remanded.

Complaints – The formal EEO complaint containing the bases and issues and remedies sought.

Completed/Ended Counselings – The number of counseling which were concluded/closed, either by a written settlement agreement, a written withdrawal from the counseling process, the issuance of a notice of right to file a formal complaint, the forwarding of a counseling to an Administrative Judge when requested/ordered by the Administrative judge, or the filing of a complaint after the regulatory counseling period had expired even though not all counseling duties had been performed.

Counseling – a process during the pre-complaint stage where an agency EEO Counselor conducts an initial interview with the aggrieved person for the purpose of explaining the EEO complaint process, determining the claim(s), basis(es) raised by the potential complainant, determining jurisdictional issues, and to seek a resolution of the dispute. The process concludes when the Counselor either reaches a resolution or, alternately, advises the aggrieved person of his/her right to file a formal complaint of discrimination if attempts to resolve the dispute through EEO counseling or ADR were unsuccessful, and submits a report documenting that the EEO counselor undertook the required counseling actions.

EEO Complaint Process – A forum which allows federal applicants for employment or federal employees to file complaints of discrimination if they believe that the discrimination occurred because of their protected basis as defined under Title VII of the Civil Rights Act of 1964, The Age Discrimination in Employment Act of 1967, the Rehabilitation Act of 1973 and the Equal Pay Act of 1963. The process provides for counseling, formal complaint, investigation, hearing, decision, and appeals.

Neutrals - An impartial third party who has no vested interest in the outcome of a dispute that is utilized to aid the parties in resolving the issue in controversy.

Non-ADR Settlement – generally, a settlement reached by an EEO counselor during the pre-complaint process.

Parties - The parties in an EEO dispute include the aggrieved individual (or complainant) and the agency that is named in the complaint.

Resolutions - Resolutions include settlements where individuals received monetary and/or non-monetary benefits and matters where the individual withdrew from counseling or a complaint from the EEO process.

Settlements – An agreement in the counseling or complaint stage where the individual resolves the EEO matter prior to a final agency decision or adjudication before an EEOC administrative judge and received monetary and/or non-monetary benefits from the agency in return for withdrawing the matter from the EEO process.

Withdrawals (No Formal Complaint Filed) – Termination of the EEO process during the counseling or complaint stage where the individual withdrew the matter from the EEO process without receiving any monetary and/or non-monetary benefits from the agency. In the pre-complaint stage, a withdrawal is also referred to as "No Formal Complaint Filed."

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