Annual Report on the Federal Work Force Fiscal Year 2009

Table of Contents

PREFACE

EXECUTIVE SUMMARY

PART I SUMMARY OF EEO STATISTICS IN THE FEDERAL GOVERNMENT

Section A. Demonstrated Commitment From Agency Leadership

1. 61% of Agencies Issued EEO Policy Statements on an Annual Basis

Section B. Integration of EEO Into Agencies' Strategic Mission

1. 74% of Agency EEO Directors Report to Agency Head
2. 77% of EEO Directors Presented the State of the EEO Program to the Agency Head
3. 96% of Agencies Provided their EEO staff with Required Training

Section C. Management and Program Accountability

1. 80% of Agencies Evaluate Managers and Supervisors on EEO
2. 78% of Agencies Report They Have A Written Anti-Harassment Policy

Section D. Proactive Prevention of Unlawful Discrimination

1. Barrier Analysis
2. Composition of Federal Work Force
   1. Total Work Force: Hispanics or Latinos, White Women and Persons of Two or More Races Remain Below Availability
   2. Senior Pay Levels: Incremental Improvement
   3. General Schedule and Related Positions: Hispanic or Latino, Asian And Women Improve
   4. Federal Wage System Positions: Women and Minorities Decrease Slightly
   5. Other Pay Systems: Employees Increase by 0.59%
3. Participation Rate of Individuals with Targeted Disabilities Holds Steady

Section E. Efficiency in the Federal EEO Process

1. Federal Agency EEO Programs: Complaints Increase and Processing Times Continue to Exceed Regulatory Deadlines
2. EEOC Hearings and Appeals: Processing Times Increase For Hearings and Appeals

Section F. Responsiveness and Legal Compliance

1. 87% of Submitted EEOC Form 462 Reports Were Timely
2. 79% of Agencies and Subcomponents Timely Submitted MD-715 Reports

PART II PROFILES FOR SELECTED FEDERAL AGENCIES

APPENDIX I GLOSSARY / DEFINITIONS

APPENDIX II FEDERAL SECTOR EEO COMPLAINT PROCESSING PROCEDURES

APPENDIX III FEDERAL AGENCY EFFICIENCY AND RESPONSIVENESS

APPENDIX IV FEDERAL WORK FORCE & COMPLAINTS PROCESSING TABLES

PREFACE

The U.S. Equal Employment Opportunity Commission (EEOC or Commission) was established by the Civil Rights Act of 1964, Title VII, with the mission of eradicating discrimination in the workplace. In the federal sector, EEOC enforces Title VII, which prohibits employment discrimination on the basis of race, color, religion, sex, and national origin; the Age Discrimination in Employment Act of 1967 (ADEA), which prohibits employment discrimination against individuals 40 years of age and older; the Equal Pay Act of 1963 (EPA), which prohibits discrimination on the basis of gender in compensation for substantially similar work under similar conditions; the Rehabilitation Act of 1973 (Rehabilitation Act), which prohibits employment discrimination against federal employees and applicants with disabilities, and requires that reasonable accommodations be provided; and beginning November 21, 2009 the Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits employment discrimination on the basis of genetic information.

EEOC is charged with monitoring federal agency compliance with equal employment opportunity (EEO) laws and procedures and reviewing and assessing the effect of agencies' compliance with requirements to maintain continuing affirmative employment programs to promote equal employment opportunity and to identify and eliminate barriers to equality of employment opportunity.

Equal Employment Opportunity Management Directive 715 (MD-715), issued October 1, 2003, established standards for ensuring that agencies develop and maintain model EEO programs. These standards are used to measure and report on the status of the federal government's efforts to become a model employer. As detailed in MD-715, the six elements of a model EEO program are:

• Demonstrated commitment from agency leadership,
• Integration of EEO into the agency's strategic mission,
• Management and program accountability,
• Proactive prevention of unlawful discrimination,
• Efficiency, and
• Responsiveness and legal compliance.

This report covers the period from October 1, 2008, through September 30, 2009 and contains selected measures of agencies' progress toward model EEO programs.¹ Working within our mission as an oversight agency, EEOC strives to create a partnership with agencies.

The FY 2009 Annual Report on the Federal Work Force, submitted to the President and Congress, presents a summary of selected EEO program activities in the federal government, including work force profiles of 59 federal agencies. The report provides valuable information to all agencies as they strive to become model employers.

To prepare this report, the Commission relied on the following data: 1) work force data, as of September 30, 2009, obtained from the U.S. Office of Personnel Management's (OPM) Central Personnel Data File (CPDF)² supplemented with data provided by the Army & Air Force Exchange Service (AAFES), Federal Energy Regulatory Commission (FERC), the Department of State, Peace Corps, Tennessee Valley Authority (TVA) and the United States Postal Service (USPS); 2) data from the 2000 EEO Special Files; 3) EEO complaint processing data submitted and certified as accurate by 193 federal agencies and subcomponents in their fiscal year (FY) 2009 Federal Equal Employment Opportunity Statistical Report of Discrimination Complaints (EEO 462 reports); 4) hearings and appeals data obtained from EEOC's internal databases; and 5) EEO program data submitted and certified as accurate by 180 of 192 federal agencies and subcomponents in their FY 2009 Federal Agency Annual Equal Employment Opportunity Program Status Reports (MD-715 reports).³

Effective January 1, 2006, OPM required federal agencies to report ethnicity and race information for accessions on the revised Standard Form 181. Accordingly, the CPDF contains data on persons who are Native Hawaiian/Other Pacific Islander or who are of Two or More Races. Thus, for the fourth year, separate data on these groups is contained in this Report. Readers should bear in mind that in prior years, data on Asians included Native Hawaiian/Other Pacific Islander and no data was reported on persons of Two or More Races. As a result, care should be exercised when comparing current data to data from prior years.

Finally, the Commission would like to extend its thanks to: 1) OPM for providing the work force data from the CPDF; 2) AAFES, FERC, the Department of State, Peace Corps, TVA, and USPS for providing their work force data; and 3) those agencies that timely submitted accurate and verifiable EEO complaint processing data.

This year the Commission again provided agencies an opportunity to comment on the draft of this report. The Commission thanks those agencies that submitted comments and suggestions for assisting in the publishing of a more accurate report. Agencies are encouraged to submit all Reports to the Commission in a timely and accurate manner to ensure that the state of EEO in the federal work force is reflected correctly.

EXECUTIVE SUMMARY

STATE OF EEO IN THE FEDERAL GOVERNMENT

• In FY 2009, there were almost 2.8 million women and men employed by the federal government across the country and around the world.
  • 55.9% were men and 44.1% were women; after a slow but steady increase, the participation rate for women fell slightly from last year (44.13% to 44.06%).
  • 7.9% were Hispanic or Latino, 65.6% were White, 18.0% were Black or African American, 5.8% were Asian, 0.3% were Native Hawaiian/Other Pacific Islander, 1.7% were American Indian/Alaska Native, and 0.7% were persons of Two or More Races.
• Between FY 2008 and FY 2009, Women, Hispanic or Latino men and women, men and women of Two or More Races, and White women remained below their overall availability in the national civilian labor force, as reported in the 2000 census (CLF).
• After a steady decline for the past ten years, the participation rate of employees with targeted disabilities in the federal work force held steady in FY 2009 at 0.88%. Despite a modest net gain of 236 employees in FY 2009 over FY 2008, Individuals with Targeted Disabilities still fell far short of the 2% goal set by EEOC's LEAD Initiative.
• Of the total work force, 0.74% held senior pay level positions, which is an increase from 0.68% in FY 2000. Over the last ten years women, Hispanic or Latino employees, Black/African American employees and Asian employees have made the most gains in securing senior level positions in the federal government, increasing their participation rates to 45.03%, 34.36%, 21.52% and 129.33% respectively. Comparatively, women increased their participation rates in the total work force over the same period by 19.88%, Hispanic or Latino employees by 33.56%, Black/African American employees by only 10.62% and Asian employees by only 28.08%.
• Of the total work force, 47.56% of employees occupied General Schedule and Related pay system positions.
• The average grade for permanent and temporary General Schedule employees was 9.9. For Hispanic or Latino employees (9.4), Black or African American employees (9), Native Hawaiian/Other Pacific Islander employees (7.9), American Indian/Alaska Native employees (8.4) and employees of Two or More Races (8.5). All had average grades lower than the government-wide average. The average grade for Asian employees (10.4) and White employees (10.2) exceeded the government-wide average.
• The average General Schedule grade for women remained at 9.3, more than one grade below the average grade level for men of 10.4.
• The average General Schedule grade for Individuals with Targeted Disabilities remained at 8.5, nearly one and a half grades below the government-wide average (for permanent and temporary employees) of 9.9.
• Of the total work force, 6.99% of employees occupy positions in the Federal Wage System. In comparison to the General Schedule and Related positions, the Federal Wage System had a higher percentage of men (89.36%), Hispanic or Latino men (6.89%), Black or African American men (14.54%), Asian men (3.39%), Native Hawaiian/Other Pacific Islanders (0.74%), American Indian/Alaska Natives (2.46%) and Individuals with Targeted Disabilities (1.07%) and a lower percentage of women (10.64%).
• Of the total work force, 44.72% of employees occupied positions in Other Pay Systems (i.e. other than Senior Pay, General Schedule and Federal Wage Systems). In comparison to the General Schedule, the other pay systems had a higher percentage of men (56.19%), Asian employees (7.17%), Native Hawaiian/Other Pacific Islander employees (0.36%) and Persons of Two or More Races (0.75); and a lower percentage of Black or African American employees (18.05%), Hispanic or Latino employees (7.84%), White employees (64.78%), and American Indian/Alaska Native employees (1.08%).
• Of the 180 agencies and subcomponents that submitted a FY 2009 MD-715 report, 61% reported that they had issued an EEO policy on an annual basis, a decrease from the 79% of the 173 agencies and subcomponents that submitted an MD-715 report in FY 2008.
• Of the 93 agencies (with 100 or more employees) that submitted a FY 2009 EEOC Form 462 report, 69 (74.2%) reported that the EEO Director reports directly to the agency head.
• A state of the agency briefing to the agency head, required by MD-715, was conducted by 77% of the 180 agencies and subcomponents that submitted a FY 2009 MD-715 report, up from 76% of the 173 agencies and subcomponents that submitted a FY 2008 MD-715 report.
• Pre-complaint EEO counseling and alternative dispute resolution (ADR) programs addressed many employee concerns before they resulted in formal EEO complaints. Of the 39,038 instances of counseling in FY 2009, 52.8% did not result in a formal complaint due either to settlement by the parties or withdrawal from the EEO process.
• In FY 2009, 15,825 individuals filed 16,947 complaints alleging employment discrimination against the federal government.
• The number of complaints filed increased by 1.2% from the number filed the previous year and there was a 1.8% increase in the number of individuals who filed complaints over the same period. In FY 2009, 6.6% of the complaints filed were by individuals who had previously filed at least one other complaint during the year, a decrease from the 7.2% in FY 2008.
• A total of 10,199 investigations were completed government-wide in an average of 185 days in FY 2009. Significantly, 7,432, or 72.9%, of the investigations were timely completed, less than FY 2008's 74.0% timely completed rate. Without the United States Postal Service's (USPS) investigations, the government-wide average drops to 61.8%, an increase from the 58.7% timely completed in FY 2008.
• Agencies issued 4,150 merit decisions without a decision by an EEOC Administrative Judge, and 2,276 (54.8%) of these decisions were timely issued, down from 63.5% timely issued in FY 2008. Without the USPS' merit decisions, the government-wide average drops to 35.2%.
• EEOC's hearing receipts decreased by 9.4%, from 8,036 in FY 2008 to 7,277 in FY 2009. The average processing time for a hearing was 294 days, a 12.2% increase from FY 2008's average of 262 days.
• EEOC's appeal receipts decreased by 6.6%, declining from 5,082 in FY 2008 to 4,745 in FY 2009. The average processing time for appeals in FY 2009 was 290 days, a 4.3% increase from the FY 2008 average of 278 days.
• In FY 2009, as a result of final agency decisions, settlement agreements, and final agency actions in which agencies agreed to fully implement EEOC Administrative Judges' decisions, agencies paid monetary benefits to EEO complainants totaling $41.7 million, up slightly from the $41.0 million paid in FY 2008. An additional $8.5 million was paid out in response to appellate decisions, a decrease from the $12.3 million paid out in FY 2008.
• In FY 2009, EEOC's training and outreach program reached 4,095 federal employees through 139 sessions.
• In FY 2009, EEOC Form 462 reports were timely filed by 81 or 87% of the 93 agencies (with 100 or more employees) that were required to submit an EEOC Form 462 report.
• In FY 2009, 79% or 143 of the 180 agencies and subcomponents that submitted an MD-715 report did so by the February 1, 2010 deadline. No extensions were granted in FY 2009. In FY 2008, 50% or 73 of the agencies and subcomponents that submitted reports were timely; with extensions 80.7% or 117 of the 145 reports submitted in FY 2008 were timely. In FY 2007, MD-715 reports were timely filed by 77 or 44.7% of the 172 reporting agencies and subcomponents down from the 50% or 84 of the 167 reporting agencies and subcomponents in FY 2006.

Part I
Summary of EEO Statistics in the Federal Government

Section A - Demonstrated Commitment From Agency Leadership

As the federal government continues down the path of constant improvement with hiring reforms and pay system conversions, federal agencies must be forward-thinking in positioning themselves as the nation's employer of choice. Reaching all segments of our diverse population only strengthens an agency's ability to achieve its service related mission. EEOC's Management Directive 715 sets forth policy guidance and standards for establishing and maintaining effective affirmative programs of equal employment opportunity under Section 717 of Title VII and effective affirmative action programs under Section 501 of the Rehabilitation Act.

MD-715 requires agency heads and other senior management officials to demonstrate a firm commitment to equality of opportunity for all employees and applicants for employment. Agencies must promote and safeguard equal employment opportunity into everyday practice and make those principles a fundamental part of agency culture. Agency leaders need to take ownership of their agencies EEO program including activities that demonstrate the importance of developed action plans.

1. 61% of Agencies Issued EEO Policy Statements on an Annual Basis

Section II(A) of MD-715 provides that "commitment to equal employment opportunity must be embraced by agency leadership and communicated through the ranks from the top down. It is the responsibility of each agency head to take such measures as may be necessary to incorporate the principles of EEO into the agency's organizational structure." In addition, this section establishes that "agency heads must issue a written policy statement expressing their commitment to EEO and a workplace free of discriminatory harassment. This statement should be issued at the beginning of their tenure and thereafter on an annual basis and disseminated to all employees." Issuing the statement on an annual basis provides an opportunity to highlight the accomplishments and strategies of most import for the coming year.

Figure 1 - Percent of Agencies that Issued EEO Policy Statements
On an Annual Basis FY 2005 - FY 2009

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Figure 1 above shows the number of agencies that issued its EEO policy statement on an annual basis. Of the 180 agencies and subcomponents that submitted an MD-715 report for FY 2009, only 110 (61.1%) reported that they had issued an EEO policy statement annually and would continue to do so, a decrease from the 78.6% of 173 agencies and subcomponents that submitted in FY 2008.

Section B - Integration of EEO Into Agencies' Strategic Mission

In order to achieve its strategic mission, an agency must integrate equality of opportunity into attracting, hiring, developing, and retaining the most qualified work force. The success of an agency's EEO program ultimately depends upon decisions made by individual agency managers. Therefore, agency managers constitute an integral part of the agency's EEO program. The EEO office serves as a resource to these managers by providing direction, guidance, and monitoring of key activities to achieve a diverse workplace free of barriers to equal opportunity.

As part of integrating EEO into the strategic mission, Section II(B) of MD-715 instructs agencies to ensure that: (1)  the EEO Director has access to the agency head; (2) the EEO office coordinates with Human Resources; (3) sufficient resources are allocated to the EEO program; (4) the EEO office retains a competent staff; (5) all managers receive management training; (6) all managers and employees are involved in implementing the EEO program; and (7) all employees are informed of the EEO program. Three aspects of this Section are highlighted below.

1. 74% of Agency EEO Directors Report to Agency Head

EEOC's regulations governing agency programs to promote equal employment opportunity require each agency to "maintain a continuing affirmative program to promote equal opportunity and to identify and eliminate discriminatory practices and polices." 29 C.F.R. §1614.102(a). To implement its program, each agency shall designate a Director of Equal Employment Opportunity who shall be under the immediate supervision of the agency head. 29 C.F.R. §1614.102(b)(4).

When the EEO Director is under the authority of others within the agency, the agency creates a potential conflict of interest where the person to whom the EEO Director reports is involved in or would be affected by the actions of the EEO Director. By placing the EEO Director in a direct reporting relationship to the agency head, the agency underscores the importance of EEO to the agency's mission and ensures that the EEO Director is able to act with the greatest degree of independence.

Of the 93 agencies (with 100 or more employees) that were required to submit an EEOC Form 462 report in FY 2009, 69 or 74.2% of the agencies reported that their EEO Director reports to the agency head, up from the 63 agencies (64.9%) reported in FY 2008 and the (60.6%) reported in FY 2007. Figure 2 below shows a five year trend.

Figure 2 - Percent of EEO Directors Who Report Directly to the Agency Head
FY 2005 - FY 2009

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2. 77% of EEO Directors Presented the State of the EEO Program to the Agency Head

In addition to improving the status and independence of EEO, Section II(B) of MD-715 requires that agencies ". . . provide the EEO Director with regular access to the agency head and other senior management officials for reporting on the effectiveness, efficiency, and legal compliance . . ." of the agency's EEO program. Following each yearly submission of the MD-715 report to EEOC, EEO Directors should present the state of the EEO program to the agency head. See Section I of EEOC's Instructions for MD-715.

Of the 180 agencies and subcomponents that submitted an MD-715 report for FY 2009, 138 (76.7%) indicated that the EEO Director had conducted the briefing; up from the 75.7% of 173 in FY 2008.

Figure 3 - Percent of Agency Heads Briefed on State of EEO FY 2005 - FY 2009

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3. 96% of Agencies Provided Their EEO Staff with Required Training

Section II(B) of MD-715 requires that agencies attract, develop and retain EEO staff with the strategic competencies necessary to accomplish the agency's EEO mission. In order to ensure staff competency within its EEO complaint program, agencies must comply with the mandatory training requirements for EEO counselors and investigators as set forth in MD-110. Agencies using contract staff to perform these functions must also ensure that these requirements are met.

Chapter 2, Section II of MD-110 requires that new EEO counselors receive thirty-two hours of EEO counselor training and thereafter eight hours of training each year. Likewise, new EEO investigators are required to have thirty-two hours of EEO investigator training and thereafter eight hours of training each year as set forth in Chapter 6, Section II of MD-110.

Of the 93 agencies with 100 or more employees that filed an EEOC Form 462 report in FY 2009, 95% ensured their EEO staff received the required regulatory training up from the 87% that reported providing the training in FY 2008. Agencies trained 1,450 new EEO counselors and 364 new EEO investigators. Agencies also provided the required eight hour annual refresher training to 3,295 EEO counselors and 1,972 EEO investigators. Additionally, agencies reported providing thirty-two hour training to 117 EEO counselor/investigators and eight hour training to 283 EEO counselor/investigators.

Section C - Management and Program Accountability

A model EEO program will hold managers, supervisors, EEO officials, and personnel officers accountable for the effective implementation and management of the agency's program. As part of management and program accountability, MD-715 provides that agencies should ensure that: (1) regular internal audits are conducted of the EEO program; (2) EEO procedures are established; (3) managers and supervisors are evaluated on EEO; (4) personnel policies are clear and consistently implemented; (5) a comprehensive anti-harassment policy has been issued; (6) an effective reasonable accommodation policy has been issued; and (7) findings of discrimination are reviewed. Two aspects of this Section are highlighted below.

1. 80% of Agencies Evaluate Managers and Supervisors on EEO

Section II(C) of MD-715 provides that a model EEO program must "evaluate managers and supervisors on efforts to ensure equality of opportunity for all employees." The success of an agency's EEO program ultimately depends on individual decisions made by its managers and supervisors. Therefore, agency managers and supervisors constitute an integral part of the agency's EEO program. As such, MD-715 makes clear that all managers and supervisors share responsibility with EEO program and human resources officials for the successful implementation of EEO programs. The EEO office serves as a resource to these managers by providing direction, guidance and monitoring of key activities to achieve a diverse workplace free of barriers to equal opportunity. In this regard, the EEO office should inform managers and supervisors that a positive evaluation will include an assessment of how that manager contributes to the agency's EEO program by emphasizing to managers and supervisors that equality of opportunity is essential to attracting, developing and retaining the most qualified workforce, with such a workforce being essential to ensuring the agency's achievement of its strategic mission.

In FY 2009, 144 (80%) of the 180 agencies and subcomponents that submitted MD-715 reports indicated that its managers and supervisors were rated on their commitment to EEO, down from the 144 (83.2%) of the 173 agencies that submitted MD-715 reports in FY 2008.

2. 78% of Agencies Report They Have A Written Anti-Harassment Policy

Sections II(A) and (C) of EEOC's MD-715 provide that model EEO programs should "issue a written policy statement expressing their commitment to . . . a workplace free of discriminatory harassment" and "establish procedures to prevent . . . harassment."⁴ In order to ensure that the agency's anti-harassment policy is enforced, Section II(C) requires agencies to establish procedures to prevent harassment and to take immediate corrective action if harassment is found. These procedures are separate from the federal sector administrative EEO complaint process.

EEOC's Enforcement Guidance on Harassment makes clear that agencies can be held liable for harassment based on race, color, sex, religion, national origin, protected activity, age (40 and over), or disability, and is not limited to harassment that is of a sexual nature. Accordingly, the policy guidance emphasizes that agencies should establish written anti-harassment policies and complaint procedures covering unlawful harassment on all bases.

In FY 2009, 140 (77.8%) of the 180 agencies and subcomponents that submitted MD-715 reports reported they had a written anti-harassment policy, down from the 146 (84.4%) of the 173 agencies and subcomponents that submitted an MD-715 report in FY 2008.

Section D - Proactive Prevention of Unlawful Discrimination

Part 1614 of EEOC's regulations provides that each agency shall "establish a system for periodically evaluating the effectiveness of the agency's overall equal employment opportunity effort." See 29 C.F.R. §1614.102(a)(11). In particular, "each agency shall maintain a continuing affirmative program to promote equal opportunity and to identify and eliminate discriminatory practices and policies." See 29 C.F.R. §1614.102(a).

1. Barrier Analysis

Pursuant to Section II(D) of MD-715, a model EEO program "must conduct a self-assessment on at least an annual basis to monitor progress and identify areas where barriers may operate to exclude certain groups." Part A(II) of MD-715 provides that "where an agency's self-assessment indicates that a racial, national origin, or gender group may have been denied equal access to employment opportunities, the agency must take steps to identify and eliminate the potential barrier."

Barriers are defined as policies, procedures, practices, or conditions that limit or tend to limit employment opportunities for members of a particular race, ethnic or religious background, gender, or for individuals with disabilities. While some barriers are readily discernable, most are embedded in the agency's day-to-day employment policies, practices and programs, including: recruitment; hiring; career development; competitive and noncompetitive promotions; training; awards and incentive programs; disciplinary actions; and separations.

2. Composition of the Federal Work Force

This year's report provides statistics on the composition of the Total Work Force as well as statistics on employees in four pay structures:

Senior Pay Level pay structures were created by the Civil Service Reform Act of 1978, which established the Senior Executive Service (SES) as a separate personnel system covering a majority of the top managerial, supervisory, and policy-making positions in the Executive Branch of government.

The General Schedule pay system was created by the Classification Act of 1949, which created a centralized job evaluation for all White-Collar positions and merged several separate schedules into one.

The Federal Wage System was established by Public Law 92-392 in 1972 to standardize pay rates for Blue-Collar federal employees.

Today, many alternative pay plans are being used and proposed across the federal government. In this report they are identified as "Other Pay Systems." These systems include pay-banding systems, the Market-Based Pay system of the Army and Air Force Exchange Service, and include such agencies as the United States Postal Service and the Tennessee Valley Authority. Table 1 below shows the representation rates for each of these pay structures.

a. Total Work Force: Hispanics or Latinos, White Women and Persons of Two or More Races Remain Below Availability

In FY 2009, the Federal Government had a Total Work Force of 2,811,277 employees, compared to 2,442,643 in FY 2000. Table 2 shows the participation rate of the identified groups below, as compared to the civilian labor force (CLF). Table A-1 in Appendix IV, located at http://www.eeoc.gov/, provides ten-year trend data.

*Asians, Native Hawaiian and Other Pacific Islander data included in Asian data **Data not available.

A comparison of the data on the participation rates of persons in particular agency components or specific major occupations can serve as a diagnostic tool to help identify possible areas where barriers to equal opportunity may exist within an agency.

Participation rate information is located in Tables A-1a, A-6b and A-6c of Appendix IV, located at http://www.eeoc.gov.⁶

b. Senior Pay Levels: Incremental Improvement

With a total of 20,423 employees, the Senior Pay Level (SPL) positions comprise 0.73% of the total work force. SPL positions include the SES, Executive Schedule, Senior Foreign Service, and other employees earning salaries above grade 15 of the General Schedule. Table 3 below reflects the SPL representation. Table A-2 and Table A-2a of Appendix IV at http://www.eeoc.gov/ contains additional data.

*Includes both Asian and Pacific Islander employees. ** Data not available.

• From FY 2000 to FY 2009, the Total SPL Work Force increased by 3,748 employees, a net change of 22.47%. Comparatively, the number of Individuals with Targeted Disabilities in the SPL work force increased from 69 in FY 2000 to 99 in FY 2009, a net change of 43.48%.

• The participation rate for women in the SPL work force increased 45.04% over the ten year period from FY 2000 (4,072) to FY 2009 (5,906) while women increased their participation rate in the total work force by only 19.88% over the same ten-year period, from 1,033,238 in FY 2000 to 1,238,618 in FY 2009.

• Between FY 2000 and FY 2009, the participation rate for Hispanic or Latino employees in Senior Pay Level positions increased 34.36% over the ten-year period from FY 2000 (550) to FY 2009 (739). During the same period the overall participation rate for Hispanic or Latino employees in the total work force increased 33.56%, although still remaining below the 2000 CLF.

• The participation rate was 0.48% for Individuals with Targeted Disabilities, 7.05% for Black or African American employees, 84.00% for White employees, 4.21% for Asian employees and 0.76% for American Indian/Alaska Native employees.

• In FY 2009, the "feeder grades" to SPL positions⁷ (GS grades 14 and 15) showed the following participation rates: men 63.47%, women 36.53%, Hispanic or Latino employees 4.53%, White employees 75.52%, Black or African American employees 11.29%, Asian employees 7.26%, Native Hawaiian/Other Pacific Islander employees 0.08%, American Indian/Alaska Native employees 1.02%, employees of Two or More Races 0.32% and Individuals with Targeted Disabilities 0.54%.

• Part II of this report also contains information on the major occupations in selected government agencies. Data on participation rates of persons holding positions in an agency's major occupations can serve as a diagnostic tool to help determine possible areas where barriers to equal opportunity may exist and prevent upward mobility to SPL positions.

c. General Schedule and Related Positions: Hispanic or Latino, Asian and Women Improve

• With a total of 1,337,162 employees, the General Schedule and Related (GSR) positions comprised 47.56% of the total work force in FY 2009. GSR positions are mostly comprised of positions whose primary duty requires knowledge or experience of an administrative, clerical, scientific, artistic, or technical nature. GSR figures include employees in other pay systems that are easily converted to GS by OPM.

• In FY 2009, the GSR participation rate for Hispanic or Latino employees was 8.06%; for White employees was 65.86%; for Black or African American employees was 18.23%; for Asian employees was 4.94%, for Native Hawaiian/Other Pacific Islander employees was 0.25%; for American Indian/Alaska Native employees was 2.06%, for persons of Two or More Races 0.60% and for Individuals with Targeted Disabilities was 1.03%. See Table A-3 in Appendix IV at http://www.eeoc.gov/, for the entire ten-year trend in the GSR pay systems.

*Includes both Asian and Pacific Islander employees.
** Data not available.

• Women held 49.43% of all GSR positions in FY 2009, up from 48.09% in FY 2000. Over the ten year period, Hispanic or Latino employees, and Asian employees gradually increased their representation rates in the GSR work force as well.
• Over the ten year period, the participation rate for Individuals with Targeted Disabilities in the total work force declined from 1.12% to 0.88%, while the participation rate in the GSR workforce declined from 1.24% to 1.03% of the GSR work force.
• The average grade level for the total GSR permanent and temporary work force held steady at grade 9.9 in FY 2009. Of GSR employees, 19.77% were in grades 1-6, 39.69% were in grades 7-11, 28.83% were in grades 12-13, and 11.72% were in grades 14-15.
• Table 8 below shows that the Department of Treasury continued to maintain the highest participation rate for Individuals with Targeted Disabilities among the cabinet level agencies.
• Table 8a shows that the Army and Air Force Exchange Service had the highest participation rate for Individuals with Targeted Disabilities among the Department of Defense components.

Figure 4 - Average Grade in the General Schedule and Related Positions
FY 2009

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• The average GSR grade level for Hispanic or Latino employees (9.4), Black or African American employees (9), Native Hawaiian/Other Pacific Islander employees (7.9), American Indian/Alaska Native employees (8.4) and persons of Two or More Races (8.5) was lower than the government-wide average grade level (9.9).
• Approximately 41.43% of women employed in the GSR work force were in grades 7-11. The average GSR grade for women was 9.3, more than half a grade below the government-wide average of 9.9, and more than one grade below men (10.4).

• The average GSR grade level for Individuals with Targeted Disabilities was 8.5, almost one and a half grades below the government-wide average. See Table A-3 in Appendix IV at http://www.eeoc.gov/.

d. Federal Wage System Positions: Women and Minorities Decrease Slightly

• With a total of 196,487 employees, Federal Wage System (FWS) positions comprised 6.99% of the total work force in FY 2009. FWS (Blue-Collar) positions are mostly comprised of trade, craft and labor occupations.

*Includes both Asian and Pacific Islander employees.
** Data not available.

• FY 2009 FWS positions declined 8.56% from FY 2000.
• Since FY 2000, the participation rates for Black or African American employees (17.74%), Asian employees (3.88%), American Indian/Alaska Native employees (2.46%) and women (10.64%) have declined, while the participation rates of Hispanic or Latino employees (7.94%) and White employees (66.95%) have increased slightly. See Table A-4 in Appendix IV at http://www.eeoc.gov/ for the complete ten-year trend.
• In FY 2009, the participation rate of men in the FWS pay system was 38.79 percentage points higher than the participation rate of men in the GSR pay system. Comparatively, FWS participation rates for White, American Indian/Alaska Native, Native Hawaiian/Other Pacific Islander employees and Individuals with Targeted Disabilities were higher than the GSR participation rates, while the FWS work force participation rates for women, Asian employees, Black or African American employees, and Hispanic or Latino employees were lower.

e. Other Pay Systems: Employees Increase By 0.59%

• With a total of 1,257,205 employees, other pay systems (OPS) comprised 44.72% of the total work force in FY 2009. Other Pay Systems include pay banding and other pay-for-performance systems.

*Includes both Asian and Pacific Islander employees.
** Data not available.

• The participation rate for women (43.81%) in OPS was significantly lower than those (49.43%) in the GSR pay system.
• In FY 2009, the OPS participation rates for Hispanic or Latino employees (7.84%), Asian employees (7.17%), and American Indian/Alaska Native employees (1.08%) slowly rose, while the participation rates for White employees (64.78%), Black or African American employees (18.05%) and Individuals with Targeted Disabilities (0.69%) fell from FY 2000 levels.
• In FY 2009, the OPS participation rates for Asian employees were higher than in the GSR and FWS pay systems. OPS participation rates for Hispanic or Latino employees, White employees, American Indian/Alaska Native employees and Individuals with Targeted Disabilities were lower than those in the GSR and FWS pay systems. See Table A-5 in Appendix IV at http://www.eeoc.gov/ for the complete ten-year trend.

3. Participation Rate of Individuals with Targeted Disabilities Holds Steady

• From FY 2000 to FY 2009, the Total Work Force increased by 368,634 employees, a net change of 15.1%. However, the number of federal employees with targeted disabilities decreased from 27,231 in FY 2000 to 24,663 in FY 2009, a net change of -9.43%, resulting in a 0.88% participation rate. Only eleven agencies have achieved the federal goal of at least a 2% participation rate for Individuals with Targeted Disabilities.
• The EEOC had the highest percentage of Individuals with Targeted Disabilities (2.55%) among those agencies with 500 or more employees. See Table 7 below.

Nine agencies with fewer than 500 employees exceeded the 2% federal goal. They were the Architectural & Transportation Barrier Compliance Board (ACCESS Board), Committee for Purchase From People Blind or Severely Disabled, Federal Mediation and Conciliation Service, Inter-American Foundation, Marine Mammal Commission, National Council on Disability, Office of Navajo & Hopi Indian Relocation, Occupational Safety and Health Review Commission, and Trade and Development.

Table 8 below shows that the Department of the Treasury continued to maintain the highest participation rate for Individuals with Targeted Disabilities among the cabinet level agencies.

Table 8a below shows that the Army and Air Force Exchange Service had the highest participation rate for Individuals with Targeted Disabilities among the Department of Defense components.

Table A-6b in Appendix IV contains this information for all agencies and is located at http://www.eeoc.gov/. See Table 8 below for a Cabinet level ranking of Individuals with Targeted Disabilities.

* This agency showed an increase in the number and participation rate of IWTD in FY 2009.

* These Defense Sub-Components showed an increase in the number and participation rate of IWTD in FY 2009.

Section E- Efficiency in the Federal EEO Process

EEOC's regulations provide that each agency shall assure that individual complaints are fairly and thoroughly investigated and that final action is taken in a timely manner. 29 C.F.R. §1614.102(c)(5). Section II(E) of MD-715 establishes that a model EEO program must have an efficient and fair dispute resolution process and effective systems for evaluating the impact and effectiveness of its EEO programs. In this regard, Section II(E) recommends that agencies "benchmark against EEOC regulations at 29 C.F.R. Part 1614 and other federal agencies of similar size which are highly ranked in EEOC's Annual Report on the federal sector complaints process."

1. Federal Agency EEO Programs: Complaints Increase and Processing Times Continue to Exceed Regulatory Deadlines

Agencies process federal employees' EEO complaints under EEOC's regulations at 29 C.F.R. Part 1614. Employees unable to resolve their concerns through counseling can file a complaint with their agency.¹⁰ The agency will either dismiss¹¹ or accept the complaint. If the complaint is accepted, the agency must conduct an investigation, and, in most instances, issue the investigative report within 180 days from the date the complaint was filed.¹²

After the employee receives the investigative report, s/he may: (1) request a hearing before an EEOC Administrative Judge, who issues a decision that the employee or the agency may appeal to EEOC's Office of Federal Operations (OFO); or (2) forgo a hearing and request a final agency decision. An employee who is dissatisfied with a final agency decision or the agency's decision to dismiss the complaint may appeal to OFO. The complainant or agency may also request OFO to reconsider its decision on the appeal. In addition, during various points in the process, the complainant has the right to file a civil action in a federal court.

As the EEO complaint process has become increasingly more costly, adversarial, and lengthy, EEOC has encouraged agencies to promote and expand the use of alternative dispute resolution (ADR) as a means of avoiding formal adjudication processes. Used properly, ADR can provide fast and cost-effective results while improving workplace communication and morale.¹³

a. Pre-Complaint Counselings and Complaints Increase

Completed counselings slightly increased by 0.4% from FY 2008 to FY 2009 but decreased almost 5% from FY 2005. Formal complaints increased by 1.2% from FY 2008 to FY 2009 but decreased almost 6% from FY 2005. From the 39,038 completed counselings, 15,825 individuals filed 16,947 formal complaints in FY 2009.¹⁴ The number of formal complaints filed represents 43.4% of all pre-complaint counseling activities in FY 2009. As Figure 5 shows, over the past five fiscal years, the number of pre-complaint counseling activities decreased from 41,070 in FY 2005 to 39,038 in FY 2009, and likewise, the number of complaints filed by individuals decreased over the five-year period. During the same five-year period, the number of formal complaints filed continued to represent less than 50% of all pre-complaint counseling activities. See Figure 5. Significantly, while the United States Postal Service constituted 25.2% of the work force, it accounted for 43.7% of all EEO counselings, 33.4% of all complaints filed, 29.6% of all completed investigations and 36.9% of all complaints closed in FY 2009. See Tables B-1, B-9 and B-10 in Appendix IV at http://www.eeoc.gov/.

Figure 5 - Completed Counseling to Formal Complaints Filed/Complainants
FY 2005 - FY 2009

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Table 9 below shows that among the cabinet/large (15,000 or more employees) agencies, in FY 2009, the USPS reported the highest percentage (2.2%) of its work force that completed counseling, while the government-wide average was 1.2%. Among the medium sized agencies (1,000 to 14,999 employees), Federal Reserve System - Board of Governors reported the highest percentage (5.3%) of its work force completed counseling. Agencies that had fewer than 25 completed/ended counselings were not included in the ranking. Small and Micro agencies (1-999 employees) typically have fewer than 25 completed/ended counselings and therefore are not ranked. Table B-1 in Appendix IV lists this information for all agencies and is located at http://www.eeoc.gov/.

* Work force numbers as reported by the agency in its FY 2009 462 report.

As shown in Table 10 below, in FY 2009, among the cabinet/large (15,000 or more employees), the Department of Education reported the highest complainant rate (0.97%), while the government-wide average was 0.54%. Among the medium sized agencies (1,000 to 14,999 employees), the Government Printing Office reported the highest complainant rate of (2.63%). Agencies that had fewer than 25 complaints filed were not included in the ranking. Table B-1 in Appendix IV contains this information for all agencies and is located at http://www.eeoc.gov/.

* Work force numbers as reported by the agency in its FY 2009 462 report.

b. Pre-Complaint ADR Usage - Higher Rates in Two Major Categories

Beginning in FY 2006, ADR offer and participation rates were measured in completed/ended counselings at the end of the fiscal year to ensure greater uniformity, consistency, and quality in the reporting and utilization of ADR data. Therefore, comparison of FY 2006 through FY 2009 data with prior year's data is not possible.

In FY 2009, the government-wide offer rate was 78.1% based upon 30,475 ADR offers made in 39,038 completed/ended counselings. Of these offers, 19,261 were accepted into agencies' ADR programs, resulting in a 49.3% participation rate in FY 2009, slightly lower than the 49.5% reported for FY 2008.

Thirty-two agencies had 100% offer rates in FY 2009. The agencies were the Armed Forces Retirement Home, Broadcasting Board of Governors, Central Intelligence Agency, Commission on Civil Rights, Court Services and Offender Supervision Agency for the District of Columbia, Defense Army & Air Force Exchange Service, Defense Human Resources Activity, Defense Information Systems Agency, Defense Missile Defense Agency, Defense National Geospatial-Intelligence Agency, Defense Nuclear Facilities Safety Board, Defense Threat Reduction Agency, Department of Defense Education Activity, Department of State, Department of the Navy, Federal Election Commission, Federal Energy Regulatory Commission, Federal Housing Finance Agency, Federal Labor Relations Authority, Federal Maritime Commission, Federal Reserve System-Board of Governors, Federal Trade Commission, Institute of Museum and Library Services, International Boundary and Water Commission, National Credit Union Administration, National Gallery of Art, National Labor Relations Board, National Science Foundation, Nuclear Regulatory Commission, Overseas Private Investment Corporation, Peace Corps and the Smithsonian Institution.

The U.S. Postal Service Again Had the Highest ADR Participation Rate

In FY 2009, the U.S. Postal Service reported the highest ADR participation rate in the pre-complaint process (71.3%) among the cabinet/large agencies, while the government-wide average was 49.3%. Among the medium sized agencies, the Smithsonian Institution reported the highest pre-complaint ADR participation rate (56%). The government-wide average falls to 32.2% without the U.S. Postal Service. See Table 11. Agencies that had fewer than 25 completed/ended counseling were not included in the ranking. See Tables B-1 and B-4 in Appendix IV for information on all agencies, which is located at http://www.eeoc.gov/.

c. Agencies Meet Counseling Deadlines in 90.2% of Cases

On average, in FY 2009 agencies met timeliness requirements for EEO counseling in 90.2% of all completed/ended counselings, a small slip from 91.2% in FY 2008 and more successful then the 80.7% that were timely in FY 2005. Agencies are required to complete counseling in 30 days except when there is a 60-day extension due to an ADR election or the complainant agrees in writing to an extension.

d. Agencies Pre-Complaint Resolution Rate Rises in FY 2009

During counseling and ADR in the pre-complaint stage, EEO disputes can be resolved by either a settlement or a decision not to file a formal complaint. In FY 2009, the government-wide resolution rate average was 55.5%, up from 55.1% in FY 2008.

National Endowment for the Arts Holds the Highest Pre-Complaint Resolution Rate

In FY 2009, the National Endowment for the Arts again reported the highest pre-complaint resolution rate (100%) among agencies with more than 25 completed/ended counselings. Among cabinet/large agencies, Defense National Guard Bureau reported the highest pre-complaint resolution rate (87.9%). See Table 12. The Federal Reserve System - Board of Governors reported the highest pre-complaint resolution rate (98.2%) among the medium sized agencies. Agencies that had fewer than 25 completed/ended counselings were not included in the ranking. However eight agencies, Armed Forces Retirement Home, Defense Nuclear Facilities Safety Board, Federal Maritime Commission, Institute of Museum and Library Services, Occupational Safety and Health Review Commission, Office of Government Ethics, Postal Regulatory Commission and the U. S. Holocaust Memorial Museum in this category had 100% resolution rates. Table B-3 in Appendix IV contains this information for all agencies and is located at http://www.eeoc.gov/.

Defense National Guard Bureau Had the Highest ADR Resolution Rate in FY 2009

In FY 2009, the Defense National Guard Bureau reported the highest ADR resolution rate in the pre-complaint process (100%), whereas the government-wide average was 66.9%. See Table 13. When the U.S. Postal Service resolution rate (76.11%) is excluded from the government-wide average, the government-wide ADR resolution rate decreased to 51.0% for FY 2009, up from the 46.9% in FY 2008. Agencies that had fewer than 25 ADR closures were not included in the ranking. Table B-5 in Appendix IV contains this information for all agencies and is located at www.eeoc.gov/.

e. Monetary Benefits in Pre-Complaint Phase Drops

Monetary benefits awarded in settlements during the pre-complaint phase, shown in Table 14, surpassed the FY 2005 benefits amount while the number of settlements with monetary benefits continued to rise. The data showed a decrease in the average amount of monetary benefits from $6,112 in FY 2008 to $5,286 in FY 2009.

f. The Most Frequently Alleged Basis and Issue Remain Unchanged

Of the 16,947 complaints filed in FY 2009, the basis most frequently alleged was reprisal (7,510) and the issue most frequently alleged was non-sexual harassment (5,599). As shown in Tables 15 and 16, this trend has remained unchanged for the past five fiscal years. FY 2009 saw a continuance of a four-year upward trend in complaints alleging both reprisal and age discrimination. Also in FY 2009, complaints filed with allegations of disability (physical) once again exceeded those complaints filed with allegations of race (Black).

In FY 2009, allegations of race discrimination were made in 35.4% of all complaints, down 2 percent from the 37.4% of all complaints filed in FY 2008. In FY 2009, there was a 5.9% decrease in the number of complaints filed since FY 2005, and the percentage of complaints alleging discrimination based on race decreased by 10.4%. During that same period, the percentage of complaints filed alleging discrimination based on color decreased 5.3%, from 1,700 in FY 2005 to 1,610 in FY 2009.¹⁵

In April 2006, EEOC issued Section 15 of the new Compliance Manual on "Race and Color Discrimination." It includes numerous examples and guidance in proactive prevention and "best practices." This Manual Section is located at Compliance Manual Section 15: Race and Color Discrimination.

g. Agency Investigation Times Again Exceeds Regulatory Time Limits and Agencies Continue to Exceed Time Limits for Issuing Final Agency Decisions

Investigations

Investigations into allegations of discrimination are a key component of the formal EEO complaint process. Delays may impede the primary goal of gathering sufficient evidence to permit a determination as to whether discrimination occurred. EEOC regulation 29 C.F.R. §1614.106(e)(2) requires agencies to conduct an investigation and issue a report to the complainant within 180 days of the filing of a complaint unless: 1) the parties agreed to no more than a 90-day extension (may not exceed 270 days); or 2) the complaint was amended or consolidated, which can add another 180 days to the period but may not exceed a total of 360 days.

In FY 2009, agencies timely completed investigations 72.9% of the time, slightly lower than the 73.8% timely completed in FY 2008 (including written agreements to extend the investigation and consolidated or amended complaints). When the U.S. Postal Service is not included, the percentage of timely completed investigations decreased to 61.8% government-wide. Agencies' average time to complete investigations again inched upward to 185 days in FY 2009 from the FY 2008 regulatory timeframe of 180 days whereas the FY 2007 reported average of 176 days was the best in fourteen years. In comparison, agency investigations averaged 186 days in FY 2006 and 237 days in FY 2005. See Figure 6 below.

Figure 6 - Average Processing Days for Investigations for FY 2005 - FY 2009

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Of those investigations required to be completed within the 180-day time limit, agency in-house investigators averaged 207 days to complete the investigation, while contract investigators averaged 175 days. Several years ago, in a review of the investigatory practices of selected agencies, EEOC identified several reasons for untimely investigations: poorly staffed EEO offices, unnecessary and time-consuming procedures,¹⁶ delays in obtaining affidavits, and inadequate tracking and monitoring systems. For more information, see EEOC's Federal Sector Investigations - Time and Cost, issued June 2004 and Attaining a Model Agency Program: Efficiency at Attaining a Model Agency Program: Efficiency.

Office of Personnel Management and Tennessee Valley Authority Completed the Highest Percentage of Timely Investigations

As shown in Table 17, the Office of Personnel Management and the Tennessee Valley Authority timely completed 100% of its investigations.¹⁷ Significantly the US Postal Service timely completed 99.2% of its 3,014 investigations in FY 2009. Among medium agencies the Office of Personnel Management and the Tennessee Valley Authority topped the list while the General Services Administration reported the next highest timely completed investigation rate (92.9%) among those agencies which completed 25 or more investigations. Agencies that had completed fewer than 25 investigations were not included in the ranking. Table B-9 in Appendix IV contains this information for all agencies and is located at http://www.eeoc.gov/.

In FY 2009, the government-wide average cost for contracting out complaint investigations was calculated at $2,566.48, a 10.4% increase from the FY 2008 average cost of $2,324.00. However, the FY 2009 average cost of agency (in-house) investigations ($6,337.83) increased 18.4% from the FY 2008 average cost of $5,352.00. Average costs to contract out investigations in FY 2009 were approximately 59.5% (up from the 56.6% cost difference in FY 2008) less than the average costs of agency (in-house) investigations.

Final Agency Actions

EEOC regulations require an agency to take a final action on each formal complaint filed. Table 18 below provides a breakdown with processing times for all final agency actions. Agencies may issue a decision dismissing a complaint on procedural grounds such as untimely EEO counselor contact or failure to state a claim. In FY 2009, the government-wide average processing time for issuing a decision dismissing a complaint on procedural grounds was 83.4 days, representing a drop from FY 2008's 88 day and FY 2007's 125-day average processing times. EEOC maintains that, in general, acceptance letters/dismissal decisions should be issued well in advance of the 180-day time limit for completing an investigation, and has suggested a more practical time would be within 60 days of the filing of the formal complaint.

An agency may also issue a decision after an investigation, either finding discrimination or finding no discrimination. In FY 2009, agencies timely issued 54.8% of their final agency merit decisions, a significant drop from the 63.5% timely completed in FY 2008. Commission regulations require agencies to issue final decisions within 60 days of a complainant's request for such a decision or Administrative Judge's remand for a final agency decision. In addition, regulations require agencies to issue a final agency decision within 90 days after completion of an investigation if the complainant has not requested either a final decision or an EEOC hearing. In FY 2009 agencies issued merit final agency decisions without an Administrative Judge's decision in an average of 175 days, up from 126 days in FY 2008.

The General Services Administration Issued the Highest Percentage of Timely Merit Decisions Without an Administrative Judge Decision

In FY 2009, the General Services Administration reported the highest percentage (100%) of timely issued merit decisions without an Administrative Judge decision. The FY 2009 government-wide average timely issued merit decision percentage was 54.8% with the U.S. Postal Service and dropped to 35.2% without the U.S. Postal Service. See Table 19 below.¹⁸ Agencies that issued fewer than 25 merit decisions without a hearing were not included in the ranking. In FY 2009, the General Services Administration was the only agency smaller than cabinet/large (15,000 or more employees) that issued 25 or more merit decisions without an Administrative Judge Decision. For information on all agencies, see Table B-14 in Appendix IV located at http://www.eeoc.gov/.

Finally, when an EEOC Administrative Judge has issued a decision, the agency must issue a final order either implementing the Administrative Judge's decision or not implementing and simultaneously appealing to EEOC. In FY 2009, agencies issued 2,851 final orders implementing and 52 orders not implementing the Administrative Judge's decisions. Commission regulations require agencies to issue an order within 40 calendar days of receiving the Administrative Judge's decision or the decision becomes the agency's final decision. In FY 2009, agencies issued orders on AJ merit decisions in an average of 621 days after the complaint was filed, a significant drop from 669 days in FY 2005.

h. Percentage of Findings of Discrimination Increase and Average Monetary Benefits Decline

In FY 2009 the percentage of findings of discrimination increased to 2.98% from the 2.5% in FY 2008. Table 20 below shows however, that the total number of merit decisions decreased this year and also that the number of settlements increased.

Average monetary benefits awarded in resolution of formal EEO complaints decreased by 3.8% between FY 2008 and FY 2009 but increased by 2.8% over the FY 2005 average amount. Table 20 above shows the total monetary benefits awarded during the formal complaint process for the past five fiscal years, while Figure 7 indicates what portion of these benefits were for compensatory damages, attorney's fees and lump sum payments.

Figure 7 - Monetary Benefits Awarded in the Formal Complaint Stage
FY 2005 - FY 2009

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i. Affirmation Rate of Final Agency Decisions on Appeal

As demonstrated by Table 21 below, 71.2% of final agency decisions (FADs), excluding those in which an AJ issued a decision, were affirmed on appeal in FY 2009. This represents a 2.7% decrease from the FY 2008 affirmation rate and a 3.2% decrease from the FY 2005 affirmation rate.

2. EEOC Hearings and Appeals: Processing Times Increase for Hearings and Appeals

By federal regulation, EEOC becomes involved in the handling of an EEO complaint from a federal employee after the case initially has been processed by the employing agency and a hearing has been requested before an EEOC Administrative Judge or an appeal from a final agency action has been filed.

If a complainant requests a hearing, an EEOC Administrative Judge may oversee discovery between the parties and hold a hearing or issue a decision on the record. If a hearing is held, the Administrative Judge will hear the testimony of witnesses, review relevant evidence, and make findings of fact and conclusions of law in a decision issued to the parties. In appropriate cases, an Administrative Judge may, in lieu of holding a hearing, procedurally dismiss a case or issue a decision by summary judgment.

EEOC is also responsible for deciding appeals from final actions issued by federal agencies on complaints of employment discrimination. These final actions may involve an agency's decision to procedurally dismiss a complaint, a final decision on the merits of a complaint when the complainant has not requested a hearing, or a decision on whether or not to fully implement the decision of an EEOC Administrative Judge. Once appellate decisions are issued, EEOC monitors agency compliance with all orders and takes appropriate action to enforce them. EEOC's adjudicatory responsibilities also include resolving allegations of a breach of a settlement agreement involving a federal sector EEO complaint, as well as deciding petitions for review of decisions involving claims of discrimination by the Merit Systems Protection Board and petitions for review of final grievance decisions when claims of discrimination are permitted to be raised in the grievance procedure.

In addition to, and equally important to its adjudicatory role, is EEOC's engagement in vigorously assisting federal agencies in the proactive prevention of discrimination. EEOC's Office of Federal Operations (OFO) provides outreach, technical assistance and oversight to federal agencies, including conducting program reviews throughout the federal government to evaluate agencies' efforts to develop and maintain model EEO programs. OFO monitors and evaluates agencies' activities to identify and correct barriers to equal opportunity, reasonable accommodation procedures for individuals with disabilities, and ADR programs. OFO also gathers and analyzes data provided by federal agencies on employment trends and EEO complaint processing; issues periodic reports which are publicly available; and works with individual agencies to identify both positive and negative trends in their EEO programs. In addition, through EEOC's Revolving Fund, OFO develops and delivers training to federal agencies and other interested parties on a wide variety of federal-sector EEO topics.

a. Hearings

i. Hearings Inventory Continues to Rise

The hearings inventory increased from 6,488 in FY 2008 to 6,997 in FY 2009, which represents an increase of 7.8%. Since FY 2005, the hearings inventory has increased 18.7%.

Figure 8 - Hearings Inventory
FY 2005 - FY 2009

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ii. Hearing Requests Decrease

Hearing requests decreased by 9.4% from 8,036 in FY 2008 to 7,277 in FY 2009, but have decreased by 29.3% from FY 2005. For comparison purposes, the 7,277 hearings requested comprised 45.9% of the total complaints filed in FY 2009.

Figure 9 - Comparison of Requests for EEOC Hearings to Complaints Filed
FY 2005 - FY 2009

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iii. Hearing Closures

During FY 2009, EEOC's Hearings Program resolved 6,779 cases, (including 67 class actions), which represents a 5.0% decrease from the 7,138 cases resolved in FY 2008 and a 33.7% decrease from the 10,221 cases closed in FY 2005. Excluding the class actions, the 6,712 individual cases in FY 2009 were closed in the following manner: 12.2% were by decision following a hearing; 28.6% were by decisions on the record; 28.2% were closed by settlements; 12.8% were by procedural dismissal; and 18.2% were withdrawals. See Table 22 for a comparison of FY 2005 - FY 2009.

iv. Average Processing Time for Hearings

The average processing time for hearing closures increased from 262 days in FY 2008 to 294 days in FY 2009, and also represents an increase from the 249 days in FY 2005. The average age of the pending inventory increased to 377 days in FY 2009 from 332 days in FY 2008, and far exceeded the 207 days in FY 2005.

Figure 10 - Average Processing Days for Hearings
FY 2005 - FY 2009

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v. Agencies Challenge Findings of Discrimination

In FY 2009, EEOC Administrative Judges issued 150 decisions finding discrimination, which was 5.5% of all decisions on the merits of complaints. In comparison to the 155 decisions finding discrimination that Administrative Judges issued in FY 2008, the 150 decisions in FY 2009 represents a 3.2% decrease. Agencies may either fully implement or not fully implement and simultaneously appeal the Administrative Judge's decision to the OFO. In FY 2009, agencies appealed only 1.7% of all Administrative Judge decisions; however, they appealed 30.4% of the cases where an Administrative Judge found discrimination.

vi. Monetary Benefits Increase at Hearings

In FY 2009, Administrative Judge decisions and settlements at the hearings stage awarded $44.5 million in benefits, as compared to the $104.7 million in FY 2008 and the $58.7 million awarded in FY 2005.²⁰ Note that benefits awarded by decisions of Administrative Judges at the hearings stage are preliminary, pending a decision on implementation by the agency or on appeal.

Figure 11 - Monetary Benefits Awarded from Hearings (In Millions of Dollars)
FY 2005 - FY 2009

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The total FY 2008 award included a large class action complaint settlement.

vii. High Affirmation Rate of AJ Decisions on Appeal

As demonstrated by the table below, over 96% of Administrative Judge's decisions were affirmed on appeal in FY 2009.²¹ The number of appealed Administrative Judge's decisions decreased 43.2% over the five year period between FY 2005 to FY 2009, while the affirmation rate increased 1.1%.

b. Appeals

i. Appeals Inventory on the Rise

OFO's appellate inventory rose in FY 2009 to 3,733, which represents a 13.9% increase from the 3,275 case inventory at the close of FY 2008 and a 3.4% increase over the 3,610 case inventory at the close of FY 2005.

Figure 12 - Appellate Inventory FY 2005 - FY 2009

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ii. Appeal Receipts Continue On A Downward Trend

OFO received 4,745 appeals in FY 2009, representing a 6.6% decrease from the 5,082 appeals filed in FY 2008. FY 2009 appeal receipts represented a 36.6% decrease from the 7,490 appeals received in FY 2005. FY 2009 continued a four year downward trend in the percentage of closed complaints that were appealed, 29.4% as opposed to the 35.3% in FY 2006.

Figure 13 - Comparison of Appeals Receipts to Complaint Closures
FY 2005 - FY 2009

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iii. Appeal Closures Decline

OFO closed a total of 4,287 appellate cases in FY 2009. Of this number, 2,818 (65.7%) alleged violations of Title VII; 1,104 (25.8%) involved the Rehabilitation Act; 976 (22.8%) violations of the ADEA; and 10 (0.2%) involved the Equal Pay Act of 1963. In FY 2008, OFO closed a total of 5,303 appellate cases, of which 3,395 were Title VII cases (64.0%); 1,283 involved the Rehabilitation Act (24.2%); 1,181 alleged violations of the ADEA (22.3%); and 26 involved the Equal Pay Act of 1963 (0.5%).²³ See Figure 14 for the appeal closures from FY 2005 to FY 2009.

Figure 14 - Appeal Closures FY 2005 - FY 2009

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Table 25 below provides a breakdown by appeal type of all FY 2009 appellate receipts and closures.

In FY 2009, OFO closed 1,918 appeals addressing the merits of the underlying discrimination claims, and made a total of 85 findings of discrimination, which represents 4.4% of the total. By comparison, in FY 2008, OFO closed 2,374 appeals addressing the merits of the underlying discrimination claims, and made a total of 111 findings of discrimination, which represented 4.7% of the total. In FY 2009, OFO reversed 22.1% of the 2,069 appeals of procedural dismissals.

iv. Average Processing Time of Appeal Closures

The average processing time for appeal closures rose to 290 days in FY 2009, representing a 4.3% increase from 278 days in FY 2008 and a 49.5% increase from 194 days in FY 2005.

OFO resolved 2,787 (65.0%) of the 4,287 appeals closed in FY 2009 within 180 days. The average age of the pending inventory at the end of FY 2009 was 302 days, a 1.7% increase from the 297-day average age at the end of FY 2008 and a 52.5% increase from the 198-day average age of the open inventory at the end of FY 2005.

Figure 15 - Average Processing Days on Appeal
FY 2005 - FY 2009

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v. Three Most Prevalent Bases and Issues on Appeal

Similar to FYs 2007 and 2008, in FY 2009, reprisal, disability and age were the most prevalent bases of discrimination alleged in closed appeals. Harassment, promotion, and removal were the three most prevalent issues of discrimination alleged in closed appeals.

vi. $8.5 Million Awarded on Appeal

In FY 2009, the $8.5 million in monetary benefits awarded in compliance with appellate decisions (including settlement agreements resolving appeals) is a decrease of 30.9% from the $12.3 million awarded in FY 2008 and a 43.7% decrease from the $15.1 million awarded in FY 2005.

Figure 16 - Monetary Benefits Awarded from Appeals²⁴
FY 2005 - FY 2009 (In Millions of Dollars)

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vii. Training and Outreach Conducted By EEOC

In FY 2008, EEOC staff members informed a large number of federal employees of their rights and responsibilities under the EEO process, affirmative employment programs and laws that the Commission enforces. EEOC's proactive prevention activities targeted multiple agencies, and provided to agency managers and supervisors a better understanding of how to prevent employment discrimination within their workplace. OFO staff members, as well as, staff from various EEOC offices throughout the country provided these training sessions.

Specifically, staff members conducted 173 training sessions reaching 6,721 federal employees, including 185 new EEO counselors, 300 new EEO investigators and 65 EEO professionals in affirmative employment programs. Additionally, staff members participated in 6 outreach sessions which reached another 140 individuals.

In an ongoing effort to provide the federal sector EEO community and stakeholders with timely and accurate information, OFO staff members responded to more than 6,672 calls concerning the federal sector EEO complaint process.

The Commission's training and outreach information can be found at http://www.eeoc.gov/federal/training/index.cfm.

Section F- Responsiveness and Legal Compliance

The sixth MD-715 element, "Responsiveness and Legal Compliance," encompasses agencies' timely filing of required reports with EEOC and timely compliance with EEOC's issued orders.

1. 87% of Submitted EEOC 462 Reports Were Timely

EEOC regulation 29 C.F.R. § 1614.602(a) requires agencies to report to the EEOC information concerning pre-complaint counseling, ADR, and the status, processing, and disposition of complaints under this part at such times and in such manner as the Commission prescribes.

The requirement to file an EEOC Form 462 Report applies to all federal agencies and departments covered by 29 C.F.R. Part 1614, as defined in 29 C.F.R. § 1614.103(b). This includes Executive agencies as defined in 5 U.S.C. 105, military departments as defined in 5 U.S.C. 102, the Government Printing Office, the Postal Rate Commission, the Smithsonian Institution, the Tennessee Valley Authority, the United States Postal Service, and those units of the judicial branch of the federal government having positions in the competitive service. All covered agencies must file Form 462 Reports with the Commission. EEOC Form 462 Reports are due on or before October 31^st of each year.

In FY 2009, 81 or 87% of the 93 agencies (with 100 or more employees) timely submitted the EEOC Form 462 Report, up from the 78.4% timely submitted in FY 2008. In FY 2008 EEOC made the report submission paperless for agencies by assigning a unique personal identification number (PIN) to agency EEO Directors for use as their signatures. The PIN needed to be entered on the secure web site by the October 31^st deadline to be considered timely. As with any new process there was a learning curve and the number of timely submitted reports dropped from 87 or 92.6% of the 94 agencies (with 100 or more employees) in FY 2007 to 76 or 78.4% of the 97 agencies (with 100 or more employees) in FY 2008. See Appendix III for the list of agencies' FY 2009 report submission times.

2. 79% of Agencies and Subcomponents Timely Submitted MD-715 Reports

EEOC regulation 29 C.F.R. § 1614.601(g) requires agencies to report to the EEOC "on employment by race, national origin, sex, and handicap in the form and at such times as the Commission may require." In addition, EEOC regulation 29 C.F.R. § 1614.602(c) requires agencies to "submit annually for the review and approval of the Commission written national and regional EEO plans of action."

MD-715 reports provide information on an agency's progress in achieving the model EEO program elements, identifying and eliminating barriers, and allow the EEOC to conduct a wide array of examinations of the agency's Title VII and Section 501 work force profiles. MD-715 applies to all Executive agencies and military departments (except uniformed members) as defined in Sections 102 and 105 of Title 5. U.S.C. (including those with employees and applicants for employment who are paid from non-appropriated funds), the United States Postal Service, the Postal Rate Commission, the Tennessee Valley Authority, the Smithsonian Institution, and those units of the judicial branch of the federal government having positions in the competitive service. These agencies and their Second Level Reporting Components are required to file an EEOC FORM 715-01 on or before January 31^st of each year.

In FY 2009, 79% or 143 of the 180 agencies and subcomponents that submitted an MD-715 report did so by the February 1, 2010 deadline. No extensions were granted in FY 2009. In FY 2008, 50% or 73 of the agencies and subcomponents that submitted reports were timely; with extensions 80.7% or 117 of the 145 reports submitted in FY 2008 were timely. In FY 2007, MD-715 reports were timely filed by 77 or 44.7% of the 172 reporting agencies and subcomponents down from the 50% or 84 of the 167 reporting agencies and subcomponents in FY 2006. See Appendix III for the list of agencies' FY 2009 report submission times.

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