Annual Report on the Federal Work Force Part I EEO Complaints Processing Fiscal Year 2010

Table of Contents

PREFACE

EXECUTIVE SUMMARY

I. SUMMARY OF EEO STATISTICS IN THE FEDERAL GOVERNMENT

Section A. Integration of EEO Into Agencies' Strategic Mission

1. 73% of Agency EEO Directors Report to Agency Head
2. 96% of Agencies Provided their EEO staff with Required Training

Section B. 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 C. Responsiveness and Legal Compliance

1. 92% of Submitted EEOC Form 462 Reports Were Timely

II. PROFILES FOR SELECTED FEDERAL AGENCIES

APPENDIX I GLOSSARY / DEFINITIONS

APPENDIX II FEDERAL SECTOR EEO COMPLAINT PROCESSING PROCEDURES

APPENDIX III FEDERAL AGENCIES' PROGRAM STATUS

APPENDIX IV FEDERAL EEO COMPLAINTS PROCESSING TABLES

(Actual tables are only available on CD or on the EEOC's website at http://www.eeoc.gov/federal/reports/fsp2010/index.cfm)

PREFACE

The United States Equal Employment Opportunity Commission (EEOC or Commission) was established by Title VII of the Civil Rights Act of 1964, (Title VII), with the mission of eradicating discrimination in the workplace.  For the federal sector, in addition to responsibilities under Title VII, which prohibits employment discrimination on the bases of race, color, religion, sex, and national origin, EEOC's Office of Federal Operations (OFO) has responsibilities under the following workplace discrimination laws as well:

• the Equal Pay Act of 1963 (EPA), which prohibits employment discrimination on the basis of gender in compensation for substantially similar work performed under similar conditions;
• the Age Discrimination in Employment Act of 1967 (ADEA), which prohibits employment discrimination on the basis of age (40 years of age and older);
• theRehabilitation Act of 1973 (Rehabilitation Act), which prohibits employment discrimination against federal employees and applicants with disabilities, and requires that reasonable accommodations be provided; and
• the Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits employment discrimination on the basis of genetic information.

EEOC adjudicates discrimination complaint and monitors federal agency compliance with equal employment opportunity (EEO) laws and procedures and reviews and assesses 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 in 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.

Part I of the report covers the period from October 1, 2009, through September 30, 2010 and contains selected measures of agencies' progress toward achieving the following elements of model EEO programs: the integration of EEO into the agency's strategic mission, efficiency, and responsiveness and legal compliance elements of model EEO programs.^[1] 

Part II of the report, will be published later in the year, and will contain selected measures of progress made by agencies in FY 2010 toward the demonstrated commitment from agency leadership, integration of EEO into the agency's strategic mission, management and program accountability, proactive prevention of unlawful discrimination, and responsiveness and legal compliance elements of model EEO programs.^[2]  Working within our mission to provide oversight and guidance, EEOC strives to create partnerships within the federal community. 

The fiscal year (FY) 2010Annual Report on the Federal Work Force Part I, submitted to the President and Congress, presents a summary of selected EEO program activities of 68 federal agencies.  The report provides valuable information to all agencies as they strive to become model employers. 

In preparing this report, EEOC relied on the following: 1) EEO complaint processing data submitted and certified as accurate by 316 federal agencies and subcomponents in their FY 2010 Federal Equal Employment Opportunity Statistical Report of Discrimination Complaints (EEO Form 462 reports); and 2) hearings and appeals data obtained from EEOC's internal databases.^[3]

Finally, the Commission would like to extend its thanks to those agencies that timely submitted accurate and verifiable EEO complaint processing data.  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.

As in the past, agencies were provided an opportunity to review the draft of this report.  The Commission thanks those agencies that responded with useful comments and suggestions. 

EXECUTIVE SUMMARY
STATE OF EEO COMPLAINT PROCESSING IN THE FEDERAL GOVERNMENT

• Pre-complaint EEO counseling and alternative dispute resolution (ADR) programs addressed many employee concerns before they resulted in formal EEO complaints.  Of the 40,563 instances of counseling in FY 2010, 56.6% did not result in a formal complaint, due either to settlement by the parties or withdrawal from the EEO process.
• In FY 2010, 16,480 individuals filed 17,583 complaints alleging employment discrimination against the federal government. 
• The number of complaints filed increased by 3.8% over the previous year and there was a 4.1% increase in the number of individuals who filed complaints over the same period.  In FY 2010, 6.3% of the complaints were filed by individuals who had filed at least one other complaint during the year, down from the 6.6% in FY 2009.
• Government-wide, a total of 11,055 investigations were completed in an average of 181 days in FY 2010.  Significantly, 75.8%, of the investigations (8,380) were timely completed, up from FY 2009's 72.9% completion rate.  Without the United States Postal Service's (USPS) investigations, the government-wide average dropped to 66.4%, which is still an increase from the 61.8% timely completion rate in FY 2009.
• Agencies issued 4,282 merit decisions without a decision by an EEOC Administrative Judge, and 51.5% were timely issued (2,207), down from 54.8% timely issued in FY 2009.  Without the USPS' merit decisions, the government-wide average dropped to 33.2%.
• EEOC's hearing receipts increased from 7,277 in FY 2009 to 7,707 in FY 2010, up by 5.9%.  The average processing time for a hearing was 332 days, a 12.9% increase from FY 2009's average of 294 days.
• EEOC's appeal receipts decreased from 4,745 in FY 2009 to 4,545 in FY 2010, down by 4.2%.  The average processing time for appeals in FY 2010 was 292 days, a 0.7% increase from the 290 days in FY 2009.
• As a result of final agency decisions, settlement agreements, and final agency actions fully implementing EEOC Administrative Judges' decisions, agencies paid monetary benefits to EEO complainants totaling $46.9 million in FY 2010, up 12% from the $41.7 million paid in FY 2009.  An additional $5.3 million was paid out in response to appellate decisions, a decrease from the $8.5 million paid out in FY 2009.
• In FY 2010, EEOC's training and outreach program reached 3,305 federal employees through 112 sessions.
• In FY 2010, EEOC Form 462 reports were timely filed by 92% of the agencies (with 100 or more employees) that were required to submit an EEOC Form 462 report (84 of 91).

I. Summary of EEO Statistics in the Federal Government

Section A - 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.  Two aspects of this Section are highlighted below.

1. 73% 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 91 agencies with 100 or more employees that were required to submit an EEOC Form 462 report in FY 2010, 78% (71) indicated that their EEO Director reports to the agency head, up from the 74.2% reported in FY 2009 and the 60.5% reported in FY 2006.  Figure 1 below shows a five-year trend.  See Appendix III for a detailed list of agencies' status.

Figure 1 - Percentage of EEO Directors Who Report Directly to the Agency Head
FY 2006 - FY 2010

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2. 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 Management Directive for 29 C.F.R. Part 1614, as revised November 9, 1999 (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 91 agencies with 100 or more employees that filed an EEOC Form 462 report in FY 2010, 95.6% ensured their EEO staff received the required regulatory training, up from the 95% that reported providing the training in FY 2009.  See Appendix III for a detailed list of agencies' status.  Agencies ensured or provided training for 1,374 new EEO counselors and 414 new EEO investigators.  Agencies also ensured or provided the required eight hour annual refresher training to 3,265 EEO counselors and 1,702 EEO investigators.  Additionally, agencies reported ensuring or providing 79 EEO counselor/investigators with thirty-two hour training and 251 with eight hour training.  

Section B - Efficiency in the Federal EEO Process

EEOC's regulations provide that each agency shall ensure 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 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 applicants' for federal employment and federal employees' EEO complaints under EEOC's regulations at 29 C.F.R. Part 1614.  Individuals unable to resolve their concerns through counseling can file a complaint with their agency.^[4]  The agency will either dismiss^[5] 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.^[6]

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 the (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 reconsideration of a decision on the appeal.  At 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 the formal adjudicatory processes.  Used properly, ADR can provide fast and cost-effective results while improving workplace communication and morale.^[7]

a. Pre-Complaint Counselings and Complaints Increase

The number of completed counselings increased by 3.9% from FY 2009 to FY 2010 and increased almost 4.5% since FY 2006.  Formal complaints increased by 3.8% from FY 2009 to FY 2010 and increased 5.1% since FY 2006.  Among the 40,563 completed counselings, 16,480 individuals filed 17,583 formal complaints in FY 2010.^[8]  The number of formal complaints filed represents 43.3% of all pre-complaint counseling activities in FY 2010.  As Figure 2 shows, over the past five fiscal years, the number of pre-complaint counseling activities increased from 38,824 in FY 2006 to 40,563 in FY 2010, and likewise, the number of complaints filed by individuals increased 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 2.  Significantly, while the United States Postal Service constituted 18.6% of the work force[9], it accounted for 40.2% of all EEO counselings, 31.2% of all complaints filed, 28.9% of all completed investigations and 33.1% of all complaints closed in FY 2010.  See Tables B-1, B-9 and B-10 ibn Appendix IV at http://www.eeoc.gov/.

Figure 2 – Completed Counseling to Formal Complaints Filed/Complainants
FY 2006 - FY 2010

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Table 1 below shows that among the cabinet/large (15,000 or more employees) agencies, in FY 2010, the U.S. Postal Service again reported the highest percentage (2.2%) of its work force that completed counseling, while the government-wide average was 1.0%.  Among the medium sized agencies (1,000 to 14,999 employees), Government Printing Office reported the highest percentage (7.7%) 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 2010 462 report.

As shown in Table 2 below, in FY 2010, among the cabinet/large (15,000 or more employees), the Department of Labor reported the highest complainant rate (0.77%), while the government-wide average was 0.46%.  Among the medium sized agencies (1,000 to 14,999 employees), the Government Printing Office again reported the highest complainant rate of (1.74%).  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 2010 462 report.

b. Pre-Complaint ADR Usage – Rates Fall 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 years' data is not possible. 

In FY 2010, the government-wide offer rate was 75.3% based upon 30,542 ADR offers made in 40,563 completed/ended counselings, down from the 78.1% reported in FY 2009.  The participation rate was 45.6%, based upon the 18,502 counselings accepted into agencies' ADR programs of the total completed/ended counselings, lower than the 49.3% reported in FY 2009.

Thirty-one agencies had 100% offer rates in FY 2010.  The agencies were the African Development Foundation, Agency for International Development, Armed Forces Retirement Home, Broadcasting Board of Governors, Corporation for National and Community Service, Court Services and Offender Supervision Agency for the District of Columbia, Defense Army & Air Force Exchange Service, Defense Human Resources Activity, Defense National Geospatial-Intelligence Agency, Defense National Security Agency, Defense Technical Information Center, Defense Threat Reduction Agency, Defense TRICARE Management Activity, Department of Labor, Department of State, Federal Energy Regulatory Commission, Federal Reserve System-Board of Governors, Federal Trade Commission, International Trade Commission, Merit Systems Protection Board, National Credit Union Administration, National Labor Relations Board, National Reconnaissance Office, National Science Foundation, National Transportation Safety

Board, Nuclear Regulatory Commission, Occupational Safety and Health Review Commission, Office of Personnel Management, Office of the Director of National Intelligence, Smithsonian Institution and the U.S. Tax Court.

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

In FY 2010, the U.S. Postal Service again reported the highest ADR participation rate in the pre-complaint process (68.6%) among the cabinet/large agencies, while the government-wide average was 45.6%.  Among the medium sized agencies, the Federal Deposit Insurance Corporation reported the highest pre-complaint ADR participation rate (63.6%).  The government-wide average falls to 30.1% without the U.S. Postal Service.  See Table 3.  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/.

* Work force numbers as reported by the agency in its FY 2010 462 report.

c. Agencies Meet Counseling Deadlines in 91.5% of Cases

On average in FY 2010 agencies met timeliness requirements for EEO counseling in 91.5% of all completed/ended counselings, which was an increase from 90.2% in FY 2009 and the 89.0% in FY 2006.  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 Slips in FY 2010

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 2010, the government-wide resolution rate average was 54.5%, down from 55.5% in FY 2009.

Federal Reserve System – Board of Governors Holds the Highest Pre-Complaint Resolution Rate

In FY 2010, the Federal Reserve System – Board of Governors reported the highest pre-complaint resolution rate (91.9%) among agencies with more than 25 completed/ended counselings.  Among cabinet/large agencies, Defense National Guard Bureau reported the highest pre-complaint resolution rate (80.9%).  See Table 4.  The Federal Reserve System – Board of Governors reported the highest pre-complaint resolution rate (91.9%) among the medium sized agencies.  Agencies that had fewer than 25 completed/ended counselings were not included in the ranking.  However twelve agencies, Armed Forces Retirement Home, Election Assistance Commission, Farm Credit Administration, Federal Election Commission, Federal Mediation and Conciliation Service, Inter-American Foundation, Merit Systems Protection Board, National Capital Planning Commission, Occupational Safety and Health Review Commission, Office of Government Ethics, U. S. Holocaust Memorial Museum and the U.S. Tax Court, 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/.

* Work force numbers as reported by the agency in its FY 2010 462 report.

Defense Army and Air Force Exchange Service Had the Highest ADR Resolution Rate in FY 2010

In FY 2010, the Defense Army and Air Force Exchange Service reported the highest ADR resolution rate in the pre-complaint process (78.3%) among those agencies with 25 or more ADR closures, whereas the government-wide average was 65.6%.  See Table 5.  When the U.S. Postal Service resolution rate (76.1%) is excluded from the government-wide average, the government-wide ADR resolution rate decreased to 49.6% for FY 2010, down from the 51% in FY 2009.  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/.

* Work force numbers as reported by the agency in its FY 2010 462 report.

e. Average Monetary Benefits in Pre-Complaint Phase Rise Slightly

Monetary benefits awarded in settlements during the pre-complaint phase, shown in Table 6, surpassed the FY 2006 benefits amount while the number of settlements with monetary benefits fell in FY 2010.  The data showed an increase in the average amount of monetary benefits from $5,286 in FY 2009 to $5,457 in FY 2010.

f. The Most Frequently Alleged Basis and Issue Remain Unchanged

Of the 17,583 complaints filed in FY 2010, the basis most frequently alleged was reprisal (7,712) and the issue most frequently alleged was non-sexual harassment (5,907).  As shown in Tables 7 and 8, this has remained unchanged for the past five fiscal years.  FY 2010 saw a continuance of a five-year upward trend in complaints alleging both reprisal and age discrimination.  Also in FY 2010, the number of complaints filed with allegations of race (Black/African American) once again exceeded those complaints filed with allegations of disability (physical).

In FY 2010, allegations of race discrimination were made in 35.6% of all complaints, up slightly 0.2% from the 35.4% of all complaints filed in FY 2009.  In FY 2010, there was a 5.1% increase in the number of complaints filed since FY 2006, and the percentage of complaints alleging discrimination based on race increased by 0.9%.  During that same period, the percentage of complaints filed alleging discrimination based on color increased 12.1%, from 1,621 in FY 2006 to 1,817 in FY 2010.[10]

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.       Agencies Increase the Number of Timely Investigations and Continue to Exceed Time Limits for Issuing Final Agency Decisions

Investigations

Investigations into claims 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 an extension of no more than 90 days (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 2010, agencies timely completed investigations 75.8% of the time, up from 72.9% in FY 2009 (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 66.4% government-wide.  Agencies' average time to complete investigations improved to 181 days in FY 2010, which was down from 185 days in FY 2009, leaving the FY 2007 reported average of 176 days as the best time for the previous seventeen years.  By comparison, agency investigations averaged 186 days in FY 2006.  See Figure 3 below.

Figure 3 – Average Processing Days for Investigations for FY 2006 – FY 2010

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Of those investigations required to be completed within the 180-day time limit, agency in-house investigators averaged 201 days to complete the investigation, while contract investigators averaged 170 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,[11] 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.

Tennessee Valley Authority Again Completed the Highest Percentage of Timely Investigations

As shown in Table 9, the Tennessee Valley Authority again timely completed 100% of its investigations.[12]  Significantly the US Postal Service timely completed 99.0% of its 3,197 investigations in FY 2010.  Among medium agencies, while the Tennessee Valley Authority topped the list, the Small Business Administration reported the next highest timely completed investigation rate (96.4%) closely followed by the Defense Finance and Accounting Service with a 95.5% timely completed rate 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 2010, the government-wide average cost for contracting out complaint investigations was calculated at $2,667.17, a 3.9% increase from the FY 2009 average cost of $2,566.48.  However, the FY 2010 average cost of agency (in-house) investigations ($7,083.61) increased 11.8% from the FY 2009 average cost of $6,337.83.  Average costs to contract out investigations in FY 2010 were approximately 62.4% (up from the 59.5% cost difference in FY 2009) 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 10 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 2010, the government-wide average processing time for issuing a decision dismissing a complaint on procedural grounds was 100.2 days, an increase from FY 2009's 83.4 day and FY 2008's 88-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 2010, agencies timely issued 51.5% of their final agency merit decisions, a drop from the 54.8% timely completed in FY 2009.  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 2010, agencies issued merit final agency decisions without an Administrative Judge's decision in an average of 201 days, up from 175 days in FY 2009.

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

In FY 2010, the General Services Administration and the Department of the Navy both reported 100% of timely issued merit decisions without an EEOC Administrative Judge decision.  The FY 2010 government-wide average timely issued merit decision percentage was 51.5% with the U.S. Postal Service and dropped to 33.2% without the U.S. Postal Service.  See Table 11 below.[13]  Agencies that issued fewer than 25 merit decisions without a hearing were not included in the ranking.  In FY 2010, the General Services Administration was again the only agency smaller than cabinet/large (15,000 or more employees) that issued 25 or more merit decisions without an EEOC 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 the decision and simultaneously appealing to EEOC.  In FY 2010, agencies issued 2,846 final orders implementing and 56 orders not implementing the Administrative Judge's procedural and merit 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 2010, agencies issued orders on Administrative Judge merit decisions in an average of 685 days after the complaint was filed, a significant increase from 621 days in FY 2009 and 624 days in FY 2006.

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

In FY 2010 the percentage of findings of discrimination increased to 3.30% from the 2.98% in FY 2009.  Table 12 below shows that both the total number of merit decisions and the number of settlements also increased in FY 2010.

Average monetary benefits awarded in resolution of formal EEO complaints increased by 5.1% between FY 2009 and FY 2010 and increased by 37.4% since FY 2006.  Table 12 above shows the total monetary benefits awarded during the formal complaint process for the past five fiscal years, while Figure 4 indicates the portion of these benefits awarded for compensatory damages, attorney's fees and lump sum payments, respectively. 

Figure 4 – Monetary Benefits Awarded in the Formal Complaint Stage
FY 2006 – FY 2010

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i. Affirmation Rate of Final Agency Decisions on Appeal Declined 2% and is at the Lowest Level in Five Years

As demonstrated by Table 13 below, 69.2% of final agency decisions (FADs), excluding those in which an Administrative Judge issued a decision, were affirmed on appeal in FY 2010.  This represents a 2.0% decrease from the FY 2009 affirmation rate and a 2.5% decrease from the FY 2006 affirmation rate.

Some of the totals have been corrected from totals reported in previous Annual Reports.

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 an applicant for federal employment or 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 made by the Merit Systems Protection Board involving claims of discrimination 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 training and with staff from various EEOC offices throughout the country, delivers these courses 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 6,997 in FY 2009 to 7,164 in FY 2010, which represents an increase of 2.4%.  Since FY 2006, the hearings inventory has increased 45.8%.

Figure 5 – Hearings Inventory FY 2006 – FY 2010

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ii. Hearing Requests Increase

Hearing requests increased by 5.9% from 7,277 in FY 2009 to 7,707 in FY 2010, but decreased by 1.2% since FY 2006.  For comparison purposes, the 7,707 hearings requested comprised 43.8% of the total complaints filed in FY 2010.

Figure 6 – Comparison of Requests for EEOC Hearings to Complaints Filed
FY 2006 – FY 2010

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iii.  Hearing Closures

During FY 2010, EEOC's Hearings Program resolved 7,213 cases, (including 44 class actions), which represents a 6.4% increase from the 6,779 cases resolved in FY 2009 and a 16.9% decrease from the 8,685 cases closed in FY 2006.  Excluding the class actions, the 7,169 individual cases in FY 2010 were closed in the following manner: 11.2% were by decision following a hearing; 29.3% were by decisions on the record; 29.6% were closed by settlements; 12.9% were by procedural dismissal; and 16.9% were withdrawals.  See Table 14 for a comparison of FY 2006 – FY 2010.

iv. Average Processing Time for Hearings

The average processing time for hearing closures increased from 294 days in FY 2009 to 332 days in FY 2010, and also represents an increase from the 274 days in FY 2006.  The average age of the pending inventory increased to 380 days in FY 2010 from 377 days in FY 2009, and far exceeded the 202 days in FY 2006.

Figure 7 - Average Processing Days for Hearings
FY 2006 - FY 2010

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v.  Agencies Challenge Findings of Discrimination

In FY 2010, EEOC Administrative Judges issued 158 decisions finding discrimination, which was 5.4% of all decisions on the merits of complaints.  In comparison to the 150 decisions finding discrimination that Administrative Judges issued in FY 2009, the 158 decisions in FY 2010 represents a 5.3% increase.  Agencies may either fully implement the Administrative Judge's decision or not fully implement and simultaneously appeal the Administrative Judge's decision to the OFO.  In FY 2010, agencies appealed only 2.0% of all Administrative Judge decisions; however, they appealed 30.8% of the cases where an Administrative Judge found discrimination.

vi. Monetary Benefits Increase at Hearings

In FY 2010, Administrative Judge decisions and settlements at the hearings stage awarded $63.1 million in benefits, as compared to the $44.5 million in FY 2009 and the $51.9 million awarded in FY 2006.  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 8 - Monetary Benefits Awarded from Hearings (In Millions of Dollars)
FY 2006 - FY 2010

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

vii.  Affirmation Rate of AJ Decisions on Appeal Remains Steady

As demonstrated by the table below, over 94% of Administrative Judges' decisions were affirmed on appeal in FY 2010.[15]  The number of appealed Administrative Judges' decisions decreased 32.6% over the five year period between FY 2006 to FY 2010; the affirmation rate dropped by 0.3%.

b. Appeals

i. Appeals Inventory Decreases

OFO's appellate inventory fell in FY 2010 to 3,671, which represents a 1.7% decrease from the 3,733 case inventory at the close of FY 2009 and a 5.6% decrease from the 3,887 case inventory at the close of FY 2006.

Figure 9 - Appellate Inventory FY 2006 - FY 2010

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ii. Appeal Receipts Continue On A Downward Trend

OFO received 4,545 appeals in FY 2010, representing a 4.2% decrease from the 4,745 appeals filed in FY 2009.  FY 2010 appeal receipts represented a 32.6% decrease from the 6,743 appeals received in FY 2006.  FY 2010 continued a five year downward trend in the percentage of closed complaints that were appealed, 26.5% as opposed to the 35.3% in FY 2006.

Figure 10 – Comparison of Appeals Receipts to Complaint Closures
FY 2006 - FY 2010

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iii. Appeal Closures On the Rise

OFO closed a total of 4,607 appellate cases in FY 2010.  Of this number, 3,016 (65.5%) alleged violations of Title VII; 1,221 (26.5%) involved the Rehabilitation Act; 1,068 (23.2%) violations of the ADEA; and 12 (0.3%) involved the Equal Pay Act of 1963.  In FY 2009, OFO closed a total of 4,287 appellate cases, of which 2,818 were Title VII cases (65.7%); 1,104 involved the Rehabilitation Act (25.8%); 976 alleged violations of the ADEA (22.8%); and 10 involved the Equal Pay Act of 1963 (0.2%).[17]  See Figure 11 for the appeal closures from FY 2006 to FY 2010.

Figure 11 - Appeal Closures FY 2006 - FY 2010

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Table 17 below provides a breakdown by appeal type of all FY 2010 appellate receipts and closures.

In FY 2010, OFO closed 1,848 appeals addressing the merits of the underlying discrimination claims, and made a total of 88 findings of discrimination, which represents 4.8% of the total.  By comparison, 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 represented 4.4% of the total.  In FY 2010, OFO reversed 25.3% of the 2,423 appeals of procedural dismissals.

iv. Average Processing Time of Appeal Closures

The average processing time for appeal closures rose to 292 days in FY 2010, representing a 0.7% increase from 290 days in FY 2009 and a 32.7% increase from 220 days in FY 2006. 

OFO resolved 3,051 (66.2%) of the 4,607 appeals closed in FY 2010 within 180 days.  The average age of the pending inventory at the end of FY 2010 was 358 days, an 18.5% increase from the 302-day average age at the end of FY 2009 and a 74.6% increase from the 205-day average age of the open inventory at the end of FY 2006.

Figure 12 - Average Processing Days on Appeal
FY 2006 - FY 2010

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v. Three Most Prevalent Bases and Issues on Appeal

Since FY 2007, reprisal and disability have been the top two bases alleged in closed appeals and in FY 2010 sex replaced age as the third most prevalent basis of discrimination alleged in closed appeals.  Harassment, promotion, and removal were the three most prevalent issues of discrimination alleged in closed appeals.

vi. $5.3 Million Awarded on Appeal

In FY 2010, the $5.3 million in monetary benefits awarded in compliance with appellate decisions (including settlement agreements resolving appeals) decreased by 37.6% from the $8.5 million awarded in FY 2009 and a 54.7% decrease from the $11.7 million awarded in FY 2006.

Figure 13 - Monetary Benefits Awarded from Appeals ^[18]
FY 2006 - FY 2010 (In Millions of Dollars)

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vii.  Training and Outreach Conducted By EEOC

In FY 2010, 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 agency managers and supervisors with 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 112 training sessions reaching 3,305 federal employees, including 262 new EEO counselors, 317 new EEO investigators, and 142 EEO professionals in affirmative employment programs. 

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 7,056 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 C - 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. 92% of Submitted EEOC Form 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 2010, 84 or 92.3% of the 91 agencies (with 100 or more employees) timely submitted the EEOC Form 462 Report, up from the 87% timely submitted in FY 2009.  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 November 1^st deadline to be considered timely.[19]  See Appendix III for the list of agencies' FY 2010 report submission times.

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^[1] All measures under EEOC's regulations and management directives are equally important, and the inclusion of particular measures in this Report does not indicate a higher degree of importance.

^[2] All measures under EEOC's regulations and management directives are equally important, and the inclusion of particular measures in this Report does not indicate a higher degree of importance.

^[3]  Certain agencies do not provide total work force numbers for national security reasons.

^[4] Matters involving both claims of discrimination and agency actions appealable to the U. S. Merit Systems Protection Board follow one of the processes set forth at 29 C.F.R. §1614.302.

^[5] There are several reasons an agency may dismiss a complaint, including the complainant's failure to state a claim, untimely contact with an EEO counselor, or that alleges a preliminary step to taking a personnel action is discriminatory.  See 29 C.F.R. §1614.107(a).

^[6] The 180-day period may be extended by 90 days if both parties agree.  See 29 C.F.R. §1614.108(e).  The regulations also extend the 180-day time limit for consolidated and amended complaints to the earlier of 180 days from the date of the most recent consolidated or amended complaint, or 360 days from the date of the earliest pending complaint.  See 29 C.F.R. § 1614.108(f).

^[7] See Jeffery M. Senger, Federal Dispute Resolution: Using ADR with the United States Government, 1-7 (Jossey-Bass/John Wiley & Sons, 2003).

^[8] Counseling may be provided via EEO Counselor or ADR Intake Officer.

^[9] Work force numbers as reported by the agency in its FY 2010 Form 462 report.

^[10] Complaints may contain multiple bases and issues.

^[11] For example, time-consuming procedures may appear in lengthy approval of investigative plans, or cumbersome procurement processes.

^[12] Twenty-six agencies with fewer than 25 total investigations timely completed 100% of their investigations.

^[13] We note that thirteen other agencies issued 100.0% of their merit decisions in a timely fashion but issued fewer than 25 total merit decisions.

^[14] These numbers do not parallel Administrative Judge findings of discrimination because agencies may not take final action in the same fiscal year as the decision was issued.  Also, agencies may settle a complaint where the Administrative Judge has found discrimination.

^[15] Administrative Judge's decisions reported here do not include Petitions for Enforcement or procedural cases.

^[16] "Appeal By Agency" occurs when the agency does not fully implement the Administrative Judge's decision.

^[17] The number and percentage of resolutions by statute is greater than the number of cases closed, because one or more statutory bases may be alleged in each appeal.

^[18] It should be noted that Hearings Benefits should not be added to Appeals Benefits for a grand total, as Hearings Benefits are only preliminary.

^[19] The deadline set by the Commission is October 31^st, which fell on a Sunday this year resulting in a November 1^st deadline for FY 2010.