EEOC Research Finds Alternative Dispute Resolution More Effective When Offered Early in the EEO Complaint Process

WASHINGTON – The U.S. Equal Employment Opportunity Commission (EEOC) today released a report titled, “Effectiveness of Alternative Dispute Resolution in the Federal Sector.”

Alternative Dispute Resolution (ADR) is a process in which a neutral third party helps parties reach an agreement without litigation. All federal agencies are required to have a fair ADR program, which generally means the process should be voluntary, confidential, enforceable, and led by a neutral person.

Since agencies may conduct ADR programs differently, the EEOC sought to better understand agencies’ ADR policies, practices, and complaint activity.

“Workplace disputes are always best resolved early,” said Dexter Brooks, the EEOC’s associate director for federal sector programs. “Federal ADR programs have proven successful, especially when professionally handled. We hope this report will provide some tips for federal agencies and workers, especially as practitioners gather this week at the EEOC’s annual EXCEL conference.”

In a previous report, the EEOC examined comprehensive information and data on the effectiveness of ADR programs at agencies in fiscal year (FY) 2019. In this report, the EEOC continued its review of agency ADR programs in FY 2021—specifically, examining Management Directive 715 program deficiencies and relevant Form 462 complaint data. This report focused on the experiences of complainants and managers who participated in ADR, primarily mediation.

The main findings from this report include:

• In FY 2021, agencies offered ADR more often during the pre-complaint stage (87.8% of all completed counselings) than during the formal EEO complaint stage (17.0% of all complaint closures).
• In FY 2021, agencies accepted ADR more often during the pre-complaint stage (55.5% of all completed counselings) than during the formal EEO complaint stage (6.4% of all complaint closures).
• During the formal EEO complaint stage, approximately 33.6% of ADR closures led to resolutions (i.e., settlements or withdrawals).
• The rate of counselings and complaints was roughly proportional to the agency’s size. Notably, large agencies (those with 15,000 or more employees) accounted for 94.1% of the federal workforce, 95.9% of completed counselings, and 93.9% of formal complaints.
• Among 72 complainants surveyed, the majority (46) expressed dissatisfaction with the fairness of the ADR process. In contrast, of the 23 responsible management officials (RMOs) surveyed, nearly all (22) indicated satisfaction with its fairness.
• A total of 41 complainants said they were considering leaving their agency in the next year, compared to only 6 RMOs. The top reason complainants gave for wanting to leave was retaliation due to ADR participation.

Based on these findings, the EEOC recommends that federal agencies:

• Provide training and education on the ADR process to employees, managers, supervisors, and settlement officials. Specifically, training should focus on the roles and expectations of management as well as outcomes from negotiated settlements.
• Keep ADR participants informed of the procedural steps throughout the ADR process, including the development of an ADR toolkit with FAQs for the ADR services offered, timelines for processing EEO complaints during the ADR process, and information on their agency website explaining the ADR services offered.
• Create an agency tool (i.e., post-ADR survey or template) to collect feedback after the mediation process. This feedback can provide insights into the mediator’s effectiveness and whether the mediation was perceived as fair. Agencies should address any concerns raised through this feedback.
• Encourage good faith cooperation and participation among all participants in the ADR process to improve chances of reaching an agreement.
• Review and use the recommendations from the EEOC’s previous ADR report:
  • Conduct quarterly ADR status briefings with senior agency leaders.
  • Share ADR data on acceptance, participation, and declination rates.
  • Improve collaboration between EEO and ADR programs.
  • Develop required training course for ADR program administration.
  • Provide ADR training for managers, staff, and mediators.
  • Provide quarterly ADR awareness training.
  • Update ADR policies every three years at a minimum.

The EEOC prevents and remedies unlawful employment discrimination and advances equal opportunity for all. More information is available at www.eeoc.gov. Stay connected with the latest EEOC news by subscribing to our email updates.