EEOC Report Identifies Promising Practices to Improve the Quality of Merit Final Agency Decisions Drafted by Contractors

WASHINGTON – The U.S. Equal Employment Opportunity Commission (EEOC) today released a federal workforce report titled, “Use of Contractors and Agency Agreements for Drafting Merit Final Agency Decisions.”

The equal employment opportunity (EEO) complaint process provides federal employees and job applicants an avenue to address unlawful discrimination and retaliation. A merit final agency decision (FAD) is one means by which agencies resolve the claims raised in an EEO complaint. A merit FAD contains findings of fact and conclusions of law on each claim, provides the rationale for dismissal of any claims (as applicable), and determines appropriate remedies and relief when discrimination is found.

This report supplements a previous evaluation that examined the timeliness of agency merit FADs and culminated in a report titled Timeliness of Merit Final Agency Decisions in the Federal Sector. The previous report noted that agencies reported using contractors, memoranda of understanding, and agency agreements to timely draft their FADs. However, agencies also expressed concerns about the quality of some of these FADs. Today’s supplemental report examines challenges and promising practices when using contractors or agency agreements for drafting FADs.

The EEOC identified the following promising practices:

• Start the contracting process early, or request FAD drafting services and provide necessary documentation as soon as possible.
• Provide specific instructions for FAD drafting and include any available templates, boilerplate, or sample language.
• Request a copy of the revisions made by the client agency to facilitate improvement by the drafting agency for future FAD drafts.
• Maintain regular communication about timeframes and drafting issues to ensure the timeliness and quality of FADs.

The EEOC also identified certain major impediments to issuing timely and quality merit FADs written by contractors and other agencies:

• Insufficient staff to review FAD drafts for legal sufficiency and correct issues.
• Difficulty holding contractors and other agencies accountable for poor performance.
• Time intensive to send FADs back to contractors and other agencies for revisions and additions.

To improve the quality and timeliness of FADs written by contractors and other agencies, the EEOC recommends that agencies:

• Provide sufficient staffing and resources to review and revise FADs.
• Begin the FAD process early.
• Regularly communicate with the drafting agency or contractor about timelines, draft requirements, templates, revisions, and quality issues.
• Hold contractors or other agencies accountable for late or poor performance, ending the relationship if issues persist.

“The EEOC provides leadership, guidance, and technical assistance to federal agencies on all aspects of their equal employment opportunity programs, including processing and adjudication of complaints from current or former federal employees and applicants,” said Wendy Doernberg, an attorney advisor at the EEOC’s Office of Federal Operations. “This report will provide agency personnel responsible for complaint processing with promising practices when engaging with contractors and other agencies for adjudication via final agency decisions. The EEOC website provides further information about the federal sector complaint process.”

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