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Remarks of JDG Associates, Inc.

The U.S. Equal Employment Opportunity Commission

Meeting of September 7, 2006, Washington D.C. on Federal Sector EEO Investigations

Introduction

JDG Associates, Inc. is a management consulting firm specializing in civil rights and equal employment opportunity. We have dedicated ten of the eighteen years we have been in business to working primarily with the federal sector to provide EEO service and support. In the last decade, we have had the opportunity to work with more than forty federal agencies and have conducted thousands of investigations on behalf of our federal agency customers. We firmly believe that our reputation as a leading EEO firm would not have been earned if we had been unable to provide quality services.

The EEO industry is fairly small in comparison to other service industries, but there are many firms and independent consultants who work with federal agencies to provide EEO services. Many of these firms have been established for years, such as DSZ and JDG, others are emerging small businesses. The length of time a company has been established should not be a measure of quality; however the operations of the company and the products the company delivers should be sufficient to produce high-quality reports of investigation.

JDG Associates and its investigators are committed to providing quality EEO services and recognize many factors may affect the quality of an investigation – from the experience of the investigator to the assembling of the final report. Our goal is to identify some of the barriers that can be confronted while conducting an EEO investigation and provide recommendations to resolve some of these issues.

Investigator Experience and Qualifications

It is difficult to develop a thorough, legally-sufficient report if an Investigator does not have the appropriate experience and qualifications to conduct an investigation. The EEOC Management Directive 110 requires all individuals who become investigators after 1999 to complete the 32-hour course for New Investigators. In addition, all investigators are required to take a minimum of eight hours of continuing education annually.

While the number of individuals new to EEO continues to grow due to the availability of New Investigator courses offered by the EEOC, USDA Graduate School, and many EEO firms, we have found that meeting the minimum educational criteria for conducting investigations is often not sufficient to meet the agency’s expectations or demands.

An experienced investigator should have a broader, more in-depth knowledge than what is taught in a one-week course. While we advocate becoming familiar with the EEO Complaint process and applaud individuals who see the potential career growth opportunities, many of these individuals do not have enough exposure to the EEO complaint process to conduct an investigation on their own. Some of the issues we have seen with very new investigators include the inability to fully identify which discrimination theory should be applied, appropriate lines of questioning and follow-up, and poor communication skills.

Over the last several years, many Civil Rights and EEO federal employees have retired, but continue to remain active in the EEO community by becoming independent contractors. These individuals bring with them first-hand, practical knowledge of the EEO complaint process, have an understanding of EEO regulations, and often contribute a special insight to a particular agency’s culture. Because much of our work is conducted by subcontractors, we have had the opportunity to work with hundreds of these individuals and find they consistently conduct quality investigations.

We recommend the EEOC and agencies consider modifying the qualification criteria for new EEO investigators to require practical and hands-on experience prior to their conducting investigations on their own. To accomplish this, we recommend new investigators seek out experienced investigators in a mentor/protégé relationship during their first year or first 20 cases.

Investigating Complaints of Discrimination

As contractors, we have the opportunity to work with the different phases of the EEO complaint process. Our investigators face several obstacles which could ultimately affect the quality of their investigation.

There is a general lack of consistency as to what constitutes a substantial investigation. The MD-110 lists its requirements, which are reiterated in the GSA Schedule’s Statement of Work; however some agencies have additional requirements. We recommend that the EEOC establish a Task Force comprised of the EEOC, agency EEO staff, and contractors to review the requirements for an EEO Investigation and develop a consistent standard that would be applicable to all agencies. This would facilitate completion of investigations as expectations and requirements would be standardized. This would further facilitate later report analysis during the drafting of final agency decisions since the FAD Writer would be better able to make appropriate references to exhibits and page numbers without having to spend time counting pages. Administrative Judges would also benefit from standardized reports during hearings.

As investigators, we are bound by the issues identified within the Letter of Acceptance. If an Acceptance Letter is poorly written, it may change the scope or focus of the investigation. We have been assigned cases where the Acceptance Letter was not well-written, and as a result, we have had to go to the Complainant for clarification of their issues as well as to the Civil Rights Office for a modification, resulting in a delay in initiating the investigation. We recommend that the EEO Specialists or other individuals responsible for preparing Letters of Acceptance/Dismissal take a refresher course on the subject every two years.

Since the Letter of Acceptance is based on the information contained within the Counselor’s Report, many of the issues that are encountered with poorly written letters are the result of a poorly written Counselor’s Report. We recommend the 32-hour course for New Counselors and annual continuing education courses for counselors focus more on proper faming of the issues. This may alleviate some of the problems that occur as a result of a poorly written Letter of Acceptance.

With regards to the Counselor’s Report, we also recommend that a Report be developed, even if the Complainant has selected ADR. Although there is a high success rate for those who elect ADR, if a settlement cannot be reached and the complaint process is initiated once again, the Investigator may not have the pertinent information required to move forward in a timely manner. We recommend, at a minimum, a partial Counselor’s Report that includes: Complainant’s contact information; synopsis of the allegation; Management’s contact information; and any other information that was collected and may be useful for the Investigator.

Investigators are advised to only request documents relevant to the investigation. It may however, take from two weeks to two months for an agency to provide requested documentation. Some documents are misplaced or archived, while others are simply not provided; even though the Investigator may include a memo to the record indicating the missing documentation, the gap in the chronology or background remains.

We recognize that agencies are short-staffed and the personnel responsible for gathering documents have other duties and responsibilities. It would be beneficial to allow these individuals as much time as possible to gather the requested documents. We recommend that the EEO Office and the HR Offices work more closely to ensure document requests are processed in a timely manner. This could entail notifying the HR Office that an investigation has been accepted for investigation and to retain appropriate documentation or alert the HR Office that an investigator has been assigned and document requests are forthcoming. Even though it is unusual for agency personnel to be uncooperative in providing documents, a standard operating procedure should be implemented if document requests are ignored. For example, the EEO Director may contact the HR Director and, if necessary, the Secretary.

Although we do follow up regularly as to the status of our document requests, the delays are further exacerbated by turnover of individuals designated as the point of contact. We recommend that an alternate point of contact be designated in the event the original point of contact is unavailable or no longer with the agency. Further, that the contact information of these individuals be updated as needed.

All investigators are expected to have strong interviewing skills as gathering testimony is crucial to an investigation. As investigators, we do not see a difference in the quality of telephonic versus in-person interviews, but do recommend that interviews for particularly complex or sensitive investigations be held in person. We most often see issues occur when an Investigator fails to follow up on an appropriate line of questioning. This may lead to incomplete testimony and not all issues thoroughly explored.

We recommend investigators be reminded of the need for preparation. Questions should be prepared in advance of the interview and investigators should have the skills and knowledge to follow up on lines of questioning appropriately. Additionally, investigators should provide a listing of preliminary questions to the affiants in advance of the interview so that they also have time to prepare and gather the evidence they intend to submit.

Organizational Management

The management approach of a company may also affect the quality of an investigation. Whether the investigation is being conducted by an individual or a firm, a quality control plan should be in place so that investigations filled with “gaps” are not submitted to the Office of Civil Rights.

While the extent of a quality control plan will be dictated by a company’s resources, effective quality assurances can still be provided. Although a company may establish random audits of its cases, this would still allow reports which do not meet the agency’s standards to be submitted to the agency. While all agencies have a review period to ascertain whether the report is sufficient, this review period may affect the 180-day timeframe. Errors and report omissions should be identified during the course of the investigation so that they may be addressed properly and timely.

At a minimum, we recommend that a review of the complete Report of Investigation should take place prior to its submission to the agency. This review should be conducted by an individual, not the Investigator, with not only strong investigative experience, but also strong analytical and editorial skills. For example, an EEO Professional who is a proficient FAD Writer, as FAD Writers must be able to analyze the Report of Investigation to render a decision. This will ensure that all elements of the investigation have been addressed and that the report would meet legal sufficiency reviews.

Because of our management approach, we place a special emphasis on monitoring the progress of all of our cases from assignment to delivery of the final Report of Investigation. A Project Manager should be designated to monitor the status of the investigation and ensure that timeframes are being met. Additional Project Managers may be assigned based on the volume of work. To further assist in case management oversight, available technology, such as spreadsheets, databases, or other proprietary software should be used. This would further facilitate weekly or monthly status reports.

Relevant Training

The Management Directive 110 requires all individuals who become investigators after 1999 to complete the 32-hour course for New Investigators. In addition, all investigators are required to take a minimum of eight hours of continuing education annually.

The 32-hour course is very standardized as the course requirements are clearly outlined within the MD-110. Additionally, most courses are modeled after the EEOC’s week-long seminar, so whether an individual takes the EEOC course, the USDA Graduate School course, or a course offered by a private contractor, the syllabus will be comparable. The 8-hour refresher course, on the other hand, can vary greatly in substance.

The MD-110 is less clear on the requirements of the 8-hour refresher course. The refresher course should be a forum for investigators to build on their current skills. In addition to providing a case law update, emphasis should be placed on interviewing skills, communication skills (written, verbal, non-verbal), report writing, and other special topics. It should be a forum for investigators to share ideas on how they can be more efficient or to strategize about issues or problems that arise during the course of an investigation. We recommend that the MD-110 be updated to better define the substance of what the 8-hour refresher course should contain.

There are many sources for obtaining the required refresher training including the EEOC and many private EEO firms, including JDG Associates, Inc. and DSZ. We recognize that some investigators do not wish to travel, and as a result look for courses that are held in their local area. Many investigators have attended the EEOC’s TAPs courses, which are scheduled across the country, in order to satisfy their annual training requirement. After attending several TAPs courses, we are concerned that some of the content, while very useful to the private sector, may not be a relevant skills builder for federal EEO Investigators.

While all of these classes have a case law update, as required by the MD-110, much of the focus of the remaining workshops is on alternative dispute resolution, record keeping, employee relations, and preventing harassment. All of these workshops have merit, but do not provide a refresher on interviewing skills or review common Report of Investigation errors. We recommend that the EEOC revise its agenda for TAPS courses that are designed to provide credit for the 8-hour refresher or hold a separate course specifically for federal EEO investigators.

Deliverables

The final Report of Investigation may differ from one agency to the next. While an efficient EEO firm has the resources and capacity to meet each individual statement of work, smaller companies or individual contractors may not. As a result, the final product may differ greatly in appearance which affects the overall quality of an investigation.

We recommend that a Task Force be assembled to create a standardized Report of Investigation format for ease of review on the part of the agency, FAD Writer, and Administrative Judge. For example,

  1. Clearly separated exhibits. A tab, stating each exhibit, e.g. Exhibit A or Exhibit 1, should separate each exhibit. If an exhibit should contain sub-exhibits, those should be tabbed as well, for example, Exhibit 6a, Exhibit 6b, etc.
  2. Stamping and Numbering. A stamp identifying the Exhibit number, page number, and total number of pages within the exhibit should be displayed on each page. Consecutive numbering per page could be an additional requirement, however may not be necessary if each page is clearly marked.
  3. Sanitizing/Redacting. A uniform requirement on redacting sensitive information. For example, some agencies wish for the Complainant’s Social Security Number to remain, while other agencies consider that to be sensitive data. Other examples include some agencies wishing all lists of names to be removed and a key provided, while others wish for the information to remain, while still others request that the information be removed, but no key provided.
  4. Electronic ROIs. We strongly recommend that agencies require at least one copy of the Report, whether the original or a copy, be placed on a CD. JDG Associates has provided electronic Reports of Investigation, as fully bookmarked PDF files to agency customers for four years. We have found this has been helpful to the agency during the draft review process, and has facilitated storage as well as dissemination of report copies to relevant parties.

Other Factors

Often times, quality and timeliness are pitted against each other. We do not see a need to sacrifice one for the other, and in fact, recommend that timeliness be considered a factor of quality. Because some agencies are easier to “navigate” than others, due to existing agency culture and procedures, it is difficult to estimate a uniform timeframe for completing investigations. We would recommend 45-90 days for completion of investigation from assignment to delivery.

As contractors, we can contribute towards an efficient, complete investigation by approaching the complaint from an impartial perspective. As contractors, we have no agenda other than to provide a high-quality product. As a result, we are able to gain the cooperation of the individuals involved. Occasionally, we may encounter individuals who are not amenable to the process; however we have been able to move forward with support of the Civil Rights Office.

We encourage open and frequent communication between the EEO Office and the investigating firms. It has been our experience that those agencies who work to establish this type of communication are more successful in processing quality, timely investigations and resolving problems that develop during the course of an investigation.

Cost of Investigation

The cost of investigations has been a point of contention for many agencies. The decision to retain investigations in-house versus outsourcing has been studied by the agencies and EEOC alike. With the increasing budget cuts, conducting investigations at a lower cost has become a leading consideration in outsourcing. Unfortunately, many agencies are placing a larger emphasis on “low-bid” investigations. This process has become more commonplace with the GSA’s E-buy system which many times requires only a quote without supporting documentation or past performance.

We recommend that agencies consider factors in addition to price, including past performance, capacity and resources, technology, and investigator qualifications. This would result in “best value” rather than best cost.

GSA Schedule

The GSA Schedule is typically the first stop for agencies wishing to outsource their investigations. Schedule 738x, dedicated to EEO and HR Services, has 54 companies that are “pre-qualified” to conduct EEO investigations. As it currently stands, when a company is awarded a GSA contract, schedule users often perceive that all of the companies on the schedule are essentially equal to each other because they have met GSA’s pre-qualification standards.

While in theory, this should be the case rather than the exception, not all companies meet a standard in terms of service, qualities, capabilities, and resources. In fact, there is a wide variation among the companies currently on the schedule. Some companies have quality control practices, production departments, in-house reviewers and other features that greatly enhance the quality and timeliness of the final product, while other companies are not at that stage. Additionally, all companies have an ever changing past performance track record but none of this is evident by looking at the schedule.

We recommend that the EEOC convene a Task Force, which includes the EEOC, GSA, agency EEO staff, procurement staff, and contractors to review the Schedule and qualification criteria for becoming a vendor. By examining the qualifications of companies and providing sufficient information to potential customers to allow them to make an informed decision regarding capabilities, it will greatly enhance the attractiveness of the GSA Schedules to agency customers. It will also allow those companies that provide the best value to the government to grow and prosper, and at the same time reduce the number of companies providing substandard services that in effect negate the image of the GSA.

We recommend that the GSA e-Library offer a link to the company’s capability statement, similar to the link to the GSA Schedule, to assist agencies in selecting what they consider their “best value”. It is not the responsibility of GSA to attest to a company’s capacity or reputation; however the ability for procurement specialists to have access to a company’s qualifications, resources, past performance, and cost on one central site would simplify their research and identification process.

This capability statement can be created by the companies, eliminating any additional work for GSA, and can include such information as number of years in business, qualifications, staff and contractor resources, scope of services (investigations, counseling, FADs), average work volume, references, and any limitations with respect to processing assigned work. This would be especially useful to those companies that do not have the ability to create and maintain websites, as agencies would still be able to access both cost and company information. With this additional tool, agencies can better determine whether the company has the internal infrastructure and resources to absorb orders for 10 cases versus 100 cases without compromising timeframes, quality, existing customers or creating a strain on the company’s capacity.

Conclusion

JDG Associates considers the EEOC a partner in the mission for equal opportunity and looks forward to joining in a collaborative effort to improve the quality of federal sector EEO investigations. We appreciate the opportunity to share recommendations on the issues that investigators have encountered. We remain committed to providing quality EEO services in a professional, timely, and neutral manner and look forward to feedback from the EEOC and federal agencies.

This page was last modified on September 6, 2006.