The U.S. Equal Employment Opportunity Commission

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September 2006

Table of Contents

Executive Summary
Introduction

A. ADR Usage in the Pre-Complaint Stage

B. ADR Techniques Used in the Pre-Complaint Stage

C. Source of ADR Neutrals in Pre-Complaint Stage

D. ADR Usage in the Pre-Complaint Stage

E. Benefits Obtained Through ADR Settlements in the Pre-Complaint Stage

F. ADR Usage in the Formal Complaint Stage

G. ADR Techniques Used in the Formal Complaint Stage

H. Sources of Neutrals in the Formal Complaint Stage

I. Effectiveness of ADR in the Formal Stage

J. Benefits Obtained Through ADR Settlements in the Formal Complaint Stage

K. Conclusion

Glossary

EXECUTIVE SUMMARY

The U.S. Equal Employment Opportunity Commission's (EEOC or Commission) Management Directive 715 (MD-715), issued October 1, 2003, establishes standards for ensuring that agencies develop and maintain model EEO programs. One of the six elements of a model EEO program is "Proactive Prevention of Unlawful Discrimination." When used properly, alternative dispute resolution (ADR), as a means of resolving equal employment opportunity (EEO) disputes, can assist agencies in fulfilling the goals of this element. ⁽¹⁾

This report evaluates the government-wide data, as submitted by federal agencies, to determine how effectively ADR programs resolve EEO disputes and how efficiently the ADR programs operate. In addition, this report addresses other important ADR issues, including types of ADR techniques, sources of neutrals, and types of settlement benefits.

During the pre-complaint stage in fiscal year (FY) 2005, ADR was used in 45.37% of the completed/ended counselings which is an increase from 43.3% in FY 2004.⁽²⁾ This increase occurred as the completed/ended counselings declined from 42,412 in FY 2004 to 41,070 in FY 2005. The vast majority of ADR attempts utilized mediation as the ADR technique and neutrals from private organizations as the source of mediators. In FY 2005, ADR efforts resulted in 6,063 settlements, totaling $969,807 in monetary benefits.

During the formal complaint stage, the ADR participation rate dipped slightly from 2.77% in FY 2004 to 2.58% in FY 2005. Agencies selected mediation as the primary ADR technique, but in-house neutrals replaced neutrals from private organizations as the major source of neutrals during the formal complaint stage. With regard to the ADR attempts completed in the formal complaint stage, the ADR resolution rate declined from 77% in FY 2004 to 68% in FY 2005. In FY 2005, ADR efforts resulted in 323 complaints receiving $5,101,286 in monetary benefits.

INTRODUCTION

In 1990, the Administrative Dispute Resolution Act ("ADRA") required each federal agency to adopt a policy on ADR use. In 1996, ADRA was reenacted as the "Administrative Dispute Resolution Act of 1996" (ADR Act). In 1998, EEOC's Federal Sector ADR Study reported that more than half of the federal agencies surveyed had active ADR programs. Thereafter, in 2000, EEOC required all federal agencies to establish or make available an ADR program during the pre-complaint and formal complaint stages of the EEO process. Additionally, EEOC's regulation, 29 C.F.R. § 1614.603, requires agencies to make reasonable efforts to voluntarily settle EEO discrimination complaints as early as possible in, and throughout, the administrative process.

The requirements for ADR programs in the federal sector EEO complaint process are outlined in 29 C.F.R. § 1614.102(b)(2)(1999), EEO Management Directive 110 (MD-110), and EEO Management Directive 715 (MD-715). EEO MD-715, issued October 1, 2003, provides policy guidance for establishing a model EEO program. To become a model EEO program under MD-715, agencies must operate their EEO programs efficiently and take proactive steps to prevent unlawful discrimination from occurring. Agencies are required, among other things, to maintain an efficient, fair, and impartial complaint resolution process. An integral part of establishing a model EEO program is the effective use of ADR to resolve disputes.

The Commission evaluates the government-wide data, as reported by federal agencies in their annual Form 462 Report to the Commission, to determine how successfully ADR programs resolved EEO disputes (effectiveness) and whether the ADR programs operated in a timely manner (efficiency). This report addresses the efficiency of ADR programs as well as other important ADR issues, including types of ADR techniques, sources of neutrals, and types of settlement benefits.

Of the 118 agencies required to file Form 462 reports, all have established or made available an ADR program. Eighty-four of those agencies have made ADR available to 100% of their workforce, while the remaining 34 agencies have made ADR available to less than all of their employees.

Section A :   ADR Usage in the Pre-Complaint Stage

Agencies have the discretion to determine when an EEO matter is appropriate for ADR. They may establish written procedures to identify when ADR will be offered, or they may decide to offer ADR on a case-by-case basis. Agencies may not decline to offer ADR to particular cases solely because of the basis involved i.e., race, color, religion, national origin, sex, age, disability, or retaliation.

1. Government-Wide ADR Usage Increases by 2%

During the pre-complaint process in FY 2005, there were 41,070 completed/ended counselings. Counselings decreased by 3.2% from FY 2004 to FY 2005 and decreased 13.8% from FY 2001. Agencies offered ADR in 31,217 counselings which represents a counseling offer rate of 76.01% of completed/ended counselings. Of those offered ADR, 18,634 (45.37%) agreed to participate and were accepted into the agency's ADR program. The ADR usage in the pre-complaint process from fiscal year 2001 through fiscal year 2005 is shown in Figure 1.

The EEOC established a target for FY 2005 that parties should participate in ADR in 30% of all counselings, with the goal of 50% by FY 2009. Since FY 2001, the ADR participation rate during the pre-complaint stage has averaged 39%. A two-year analysis of the data shows that the ADR participation rate in the pre-complaint process increased by two percentage points from 43% in FY 2004 to 45% in FY 2005, even though the offer rate decreased four percentage points from 80% to 76%. To reach the goal of 50%, EEOC recommends that each agency strive to increase their offer rate to at least 75% of all completed/ended counselings.

Figure 1 – ADR Usage in the Pre-Complaint Process FY 2001 – FY 2005

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2. U.S. Postal Service Improves Government-Wide ADR Usage by 25%

Because the completed/ended counselings by the U.S. Postal Service represented 18,349 (45%) of the total 41,070 completed/ended counselings in FY 2005 their results have a significant impact on the government-wide data. When the FY 2005 government-wide data is examined, excluding the U.S. Postal Service, the pre-complaint ADR offer rate decreased from 76% to 64%, and the ADR participation rate decreased significantly from 45% to 20%. In FY 2005, the U.S. Postal Service reported the highest ADR participation rate in the pre-complaint process (76.5%), compared to a government-wide average of 45%. As shown in Table 1, U.S. Postal Service has the highest ADR participation rate in the pre-complaint process.

Table 1 – Highest ADR Participation Rate in the Pre-Complaint Process⁽³⁾

3. Twenty-four Agencies Report 100% Offer Rate

In FY 2005, twenty-four agencies reported a 100% offer rate.⁽⁴⁾ A table with the complete ranking of agencies by ADR offer rate is located at www.eeoc.gov/federal/adr/datatables/index.html. Five agencies with at least 75 completed counselings had offer rates of 100%. The agencies are listed in Table 2.

Table 2 - Highest ADR Offer Rate in the Pre-Complaint Process⁽⁵⁾

4. Defense Office of Inspector General has Most Improved ADR Offer Rate

As shown in Table 3, in FY 2005, the Defense Office of Inspector General had the most improved ADR offer rate in the pre-complaint process.⁽⁶⁾

Table 3 - Most Improved ADR Offer Rate in the Pre-Complaint Process⁽⁷⁾

5. U.S. Postal Service has Highest ADR Participation Rate

As shown in Table 4, in FY 2005, the U.S. Postal Service reported the highest ADR participation rate in the pre-complaint process for agencies with over twenty-five completed/ended counselings.⁽⁸⁾ A table with the ranking of agencies by participation rate is located at www.eeoc.gov/federal/adr/datatables/index.html.

Table 4 - Highest ADR Participation Rate in the Pre-Complaint Process⁽⁹⁾

6. National Aeronautics and Space Administration has Most Improved ADR Participation Rate

As shown in Table 5, in FY 2005, the National Aeronautics and Space Administration had the most improved ADR participation rate in the pre-complaint process.⁽¹⁰⁾

Table 5 – Agencies with Most Improved ADR Pre-Complaint Participation Rates⁽¹¹⁾

Section B :   ADR Techniques Used in the Pre-Complaint Stage

At the pre-complaint stage, federal agencies have flexibility in selecting the types of ADR techniques to use in their respective ADR programs. Agencies may consider their mission and their workplace culture to determine which ADR techniques will best meet the needs of their workforce.

1. Mediation is Overwhelming Choice as ADR Technique

In FY 2005, agencies reported 14,439 ADR attempts during the pre-complaint process. Mediation was selected in nearly 96% of all counselings in which ADR was attempted. Since FY 2000, mediation has been the overwhelming choice of ADR techniques, averaging 96% of all ADR attempts, as shown in Table 6.

Table 6 - ADR Attempts During the Pre-Complaint Process
FY 2005

2. Excluding U.S. Postal Service, Mediation is Technique of Choice

Because the U.S. Postal Service accounted for 10,406 out of the 14,439 ADR attempts in FY 2005, the government-wide data is largely impacted by that agency. Even excluding the U.S. Postal Service data, however, mediation was the preeminent ADR technique during the pre-complaint process in FY 2005, as it was utilized in 85% of all ADR attempts. See Table 7 below.

Table 7 - ADR Attempts in the Pre-Complaint Process (Excluding the U.S. Postal Service) FY 2005

3. Efficiency of ADR Attempts Improves by Ten Days

The maximum time allowed for ADR during the pre-complaint process is 90 days. 29 C.F.R. §1614.105(f). A three-year analysis of the data, as provided in Table 8, shows that the average time for ADR attempts during the pre-complaint process increased from 34 days in FY 2003 to 46 days in FY 2004; however in FY 2005 there was a 10 day decrease to 36 days. These processing times, remain well within the 90-day maximum allowed for ADR. The most efficient ADR technique used, as reflected in overall days, was mediation, which averaged 35 days as of FY 2005. See Table 8. In contrast, facilitation represented the ADR technique with the longest process time, averaging 63 days in FY 2005.

Table 8 - Average Time By ADR Attempts in the Pre-Complaint Process FYs 2003 - 2005 ⁽¹²⁾

Section C :    Sources of ADR Neutrals in Pre-Complaint Stage

The ADR Act defines a neutral as an individual who, with respect to an issue in controversy, functions specifically to aid the parties in resolving the controversy.⁽¹³⁾ In the federal sector, ADR programs have the discretion to select the source(s) of neutrals to conduct ADR proceedings. Federal sector ADR programs selected neutrals from the following sources: (1) in-house (employees within the agency trained in ADR); (2) another federal agency; (3) private organizations; (4) multiple sources; and (5) other sources.

1. In FY 2005, the Primary Source of Neutrals is Private Organizations

As shown in Figure 2, government-wide data shows that in FY 2005, neutrals from private organizations (including bar associations, individual volunteers, and contractors) were selected more often than any other source of neutrals. A three-year analysis of the data shows that the percentage of neutrals from private organizations decreased from 79% in FY 2003 to 65% in FY 2004 but increased to 75% in FY 2005. Since FY 2000, neutrals from private organizations have averaged 75% of all ADR attempts.

Figure 2 - Sources of Neutrals in the Pre-Complaint Process FY 2005

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2. Excluding U.S. Postal Service, In-House Neutrals Dominate

In FY 2005, the U.S. Postal Service used private organizations exclusively in its 10,406 (72%) ADR counseling attempts. When the U.S. Postal Service data is excluded from 14,439 government-wide total counselings that attempted ADR in FY 2005, federal agencies selected in-house neutrals more frequently than any other source of neutrals.

A three-year analysis of the data shows that the use of in-house neutrals has decreased consistently since FY 2003, declining from 63% in FY 2003 to 59% in FY 2004 and to 49% in FY 2005. Since FY 2000, the use of in-house neutrals has declined each year; however, it remains the primary source of neutrals, averaging 57% of all ADR attempts over the past six years (excluding U.S. Postal Service data).

Section D :   Effectiveness of ADR in the Pre-Complaint Stage

One factor in determining the effectiveness of ADR in the federal sector EEO process is the percentage of EEO disputes that are resolved each fiscal year.⁽¹⁴⁾ As shown in Figure 3, of the 18,677 ADR closures during the pre-complaint process in FY 2005, the ADR process resulted in 9,434 (51%) resolutions.⁽¹⁵⁾ A three-year analysis of the data shows that the ADR resolution rate decreased from 60% in FY 2003 to 49% in FY 2004, with a slight increase to 51% in FY 2005. Since FY 2000, the ADR resolution rate has declined from 63% to 51% in FY 2005; however, the ADR resolution rate has averaged 53% over the last three years.

Figure 3 - Trends in ADR Resolutions during the Pre-Complaint Process FYs 2003 - 2005

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1. Defense National Geospatial-Intelligence Agency has Highest ADR Resolution Rate

As shown in Table 9, in FY 2005, the Defense National Geospatial-Intelligence Agency had the highest ADR resolution rate in the pre-complaint process of agencies that had greater than ten ADR closures.⁽¹⁶⁾ A table with the ranking of agencies by resolution rate is located at www.eeoc.gov/federal/adr/datatables/index.html.

Table 9 - Highest ADR Resolution Rates During the Pre-Complaint Process FY 2005

2. Defense National Geospatial-Intelligence Agency has Most Improved ADR Resolution Rate

In FY 2005, the Defense National Geospatial-Intelligence Agency had the most improved ADR resolution rate in the pre-complaint process.⁽¹⁷⁾

Table 10 - Most Improved ADR Resolution Rate in the Pre-Complaint Process FYs 2004 – 2005 ⁽¹⁸⁾

3. Average Processing Time (APT) of Pre-Complaint ADR Closures is Decreasing

A three-year analysis of the data shows that the average processing time (APT) for ADR closures during the pre-complaint process increased from 39 days in FY 2003 to 61 days in FY 2004, however it decreased to 41 days in FY 2005. Table 11 shows the average processing time in FY 2005.⁽¹⁹⁾

Table 11 - Average Processing Time in the Pre-Complaint Process FY 2005

4. National Guard Bureau has Fastest APT for ADR Closures

For the second year in a row, the Defense National Guard Bureau repeats having the fastest average processing time (APT) for ADR closures in the pre-complaint process. See Table 12. The government-wide average in FY 2005 is 41 days.

Table 12 - Fastest Average Processing Time in the Pre-Complaint Process FY 2005

5. Overall Resolution Rate Increases

As shown in Table 13, of the 41,070 counselings that were completed in FY 2005, 22,038 (54%) were resolved through EEO Counseling or ADR, including a total of 7,652 settlements. A six-year analysis of the data shows that the total resolution rate increased by 1 percentage point from 53% in FY 2000 to 54% in FY 2005.

Table 13 - Comparison of Pre-Complaint Resolutions FYs 2000 - 2005

6. EEO Counseling Resolution Rate Continues to Exceed ADR Resolution Rate.

From FY 2000 to FY 2005, ADR has averaged a resolution rate of 57%, while EEO counseling has averaged a resolution rate of 53%. However, since FY 2003 the EEO counseling resolution rate has exceeded the ADR resolution rate. Specifically, in FY 2003, the EEO counseling resolution rate was 64%, while the ADR resolution rate was 60%. In FY 2004, the EEO counseling resolution rate increased to 54% but the ADR resolution rate decreased to 49%. In FY 2005, the EEO counseling resolution rate remained at 54% but the ADR resolution rate climbed to 51%.

Section E :   Benefits Obtained Through ADR Settlements in the Pre-Complaint Stage

The types of monetary benefits reported were: (1) compensatory damages; (2) back pay/front pay; (3) lump sum; (4) attorney's fees; and (5) other monetary benefits. The types of non-monetary benefits reported were: (1) new hire; (2) promotion; (3) reinstatement; (4) expungement of records; (5) transfer; (6) rescind removal/voluntary resignation; (7) reasonable accommodation; and (8) other non-monetary benefits.

1. ADR Settlements Are Less Expensive on Average than EEO Counseling Settlements

During the pre-complaint process in FY 2005, 7,937 counselings resulted in settlements, either with the use of ADR, or traditional EEO counseling. Of this number, 7,352 settlements included non-monetary benefits and 585 settlements included monetary benefits, totaling $1,703,627. ADR efforts resulted in 6,270 settlements, and included 412 with monetary benefits totaling $969,807, while EEO counseling resulted in 1,667 settlements, and included 173 with monetary benefits totaling $733,820.

It is interesting to note that although there were only four fewer ADR settlements in FY 2005 than reported in FY 2004, the total amount of ADR settlements decreased by $639,597 from $1,609,404 to $969,807. As a result, in FY 2005 the average monetary settlement amount was $2,354 for ADR, and $4,242 for traditional EEO counseling. These figures represent substantial decreases over the FY 2004 averages which were $3,896 and $8,174 respectively. In FY 2005, the amount of monetary benefits in pre-complaint settlements (both ADR and traditional EEO counseling) averaged $2,912 per case, but over the last five fiscal years, the total amount of monetary benefits in pre-complaint settlements averaged $4,440 per case. More specifically, over that same five year span the average amount of monetary benefits for ADR settlements was $3,414, while the average for EEO counseling settlements was $7,095. Table 14 provides a five year analysis of monetary benefits

Table 14 - Comparison of Pre-Complaint Monetary Benefits FYs 2001 – 2005

2. "Lump Sum Payments" Most Frequently Reported

Table 15 shows that in FY 2005, the lump sum payment was the most frequently used type of monetary settlement benefit. At $6,413, compensatory damages had the highest average of monetary benefits in ADR settlements, while at $7,265, attorney's fees were highest in EEO counseling settlements. We note that the total number of counseling that settled with monetary benefits does not equal the aggregate of each type of monetary benefit, since one settlement agreement could include more than one type of monetary benefit. ⁽²¹⁾

Table 15 - Monetary Benefits in the Pre-Complaint Process FY 2005

3. "Other Non-Monetary Benefits" Most Frequently Reported

During the pre-complaint process in FY 2005, ADR efforts resulted in 6,270 settlements, including 5,858 with non-monetary benefits, and EEO counseling resulted in 1,667 settlements, including 1,494 with non-monetary benefits.

Table 16 shows that in FY 2005, "other non-monetary benefits" was the category most frequently reported, in that it was provided by agencies in 67% of all ADR settlements and 43% of all EEO counseling settlements. Examples of other non-monetary benefits include a modified appraisal rating, an updated position description, priority consideration, a detail, a desk audit, leave restored/modified, a neutral reference, or a reassignment of duties.

Table 16 - Non-Monetary Benefits in the Pre-Complaint Process ⁽²²⁾ FY 2005

Section F :   ADR Usage in the Formal Complaint Stage

Agencies are required by EEOC regulations to have an ADR program available for both the pre-complaint and formal complaint processes. However, they have the discretion to determine when an EEO matter is appropriate for ADR, and at what point in the EEO process to offer ADR. Agencies may establish written procedures to identify when ADR will be offered, or they may decide to offer ADR on a case-by-case basis.

1. Government-wide ADR Usage in FY 2005 Declines

In FY 2005, 18,017 formal complaints were filed. When the number of complaints filed is combined with complaints pending from the previous fiscal year (24,560) and complaints remanded for investigation (599), there was a complaint workload of 43,176. Agencies offered ADR to individuals in 3,212 complaints, representing 7.44% of the complaint workload. Of the total complaint workload, 1,113 (2.58%) agreed to participate and were accepted into the agency's ADR program. The data shows that ADR is significantly under-utilized at the formal complaint stage due, in large part, to agencies' failure to offer ADR once a formal complaint has been filed.

A four-year analysis of the data, see Figure 4 below, shows that the ADR participation rate during the formal complaint stage has reached a low of 2.58% in FY 2005, after peaking at 7% in FY 2003. Since FY 2002, the ADR participation rate has averaged 4.09% of the complaint workload.

Figure 4 – ADR Usage in the Formal Complaint Process FYs 2002 - 2005

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2. Lower Offer Rate by U.S. Postal Service Impacts Government-Wide ADR Usage

Because the U.S. Postal Service accounted for 15,493 cases (35.9%) out of the 43,176 complaint workload in FY 2005, the government-wide data is largely impacted by that agency. When the FY 2005 data is examined excluding the U.S. Postal Service, the ADR offer rate at the formal complaint stage increased from 7.44% to 11.46%, and the ADR participation rate increased from 2.58% to 3.89%. Figure 5 shows the U.S. Postal Service ADR usage as compared to all other agencies.

Figure 5 - Comparison of ADR Usage between U.S. Postal Service and All Other Agencies in the Formal Complaint Process FYs 2002 - 2005

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3. Defense Threat Reduction Agency has Highest ADR Offer Rate

In FY 2005, for agencies with ten or more cases in their complaint workload, the Defense Threat Reduction Agency, as shown in Table 17, had the highest ADR offer rate in the formal complaint process. ⁽²³⁾ A table with the complete ranking of agencies by ADR offer rate is located at www.eeoc.gov/federal/adr/datatables/index.html.

Table 17 - Highest ADR Offer Rate in the Formal Complaint Process FY 2005

4. Department of State has Most Improved ADR Offer Rate

In FY 2005, the Department of State, as shown in Table 18, had the most improved ADR offer rate in the formal complaint stage. ⁽²⁴⁾

Table 18 - Most Improved ADR Offer Rate in the Formal Complaint Process FYs 2004 - 2005

5. Nuclear Regulatory Commission has Highest ADR Participation Rate

In FY 2005, for agencies with a complaint workload of ten or more cases, the Nuclear Regulatory Commission, as shown in Table 19, had the highest ADR participation rate in the formal complaint process. ⁽²⁵⁾ A table with the complete ranking of agencies by ADR offer rate is located at www.eeoc.gov/federal/adr/datatables/index.html.

Table 19 - Highest ADR Participation Rate in the Formal Complaint Process FY 2005

Section G :   ADR Techniques Used in the Formal Complaint Stage

Federal agencies have flexibility in selecting the types of ADR techniques to use in their respective ADR programs. Agencies may consider their mission and their workplace culture to determine which ADR techniques will best meet the needs of their workforce.

1. Mediation was Primary Choice as ADR Technique

In FY 2005, agencies reported 1,135 ADR attempts during the formal complaint process. Mediation, as shown in Table 20, was selected in 83% of all formal complaints attempted ADR in FY 2005. The use of mediation in ADR attempts decreased by 7 percentage points, dropping from 90% in FY 2004 to 83% in FY 2005. Since FY 2003, mediation has been used more than any other ADR technique at the formal complaint stage of the EEO process, averaging 86% of all ADR attempts. Even excluding the U.S. Postal Service data, mediation continued to be the preeminent ADR technique during the formal complaint process in FY 2005.

Table 20 - ADR Attempts in the Formal Complaint Process FY 2005

2. Efficiency of ADR Attempts Increases by 32 Days

The maximum time allowed for ADR during the formal complaint process is 90 days. A three-year analysis of the data, as contained in Table 21, shows that the average processing time (APT) for ADR attempts during the formal complaint process increased from 58 days in FY 2003 to 92 days in FY 2004 but decreased to 60 days in FY 2005. ⁽²⁶⁾ As such, the efficiency of the ADR attempts decreased by 2 days in the three year period. The average processing time over the three year period is 70 days.

Table 21 - Average Processing Time By ADR Attempts During the Formal Complaint Process FYs 2003 - 2005

Section H :   Sources of Neutrals in the Formal Complaint

The ADR Act defines a neutral as an individual who, with respect to an issue in controversy, functions specifically to aid the parties in resolving the controversy. In the federal sector, ADR programs have the discretion to select the source(s) of neutrals to conduct ADR proceedings.

During FY 2005, federal sector ADR programs selected neutrals from the following sources: (1) In-house (employees within the agency); (2) Another Federal Agency; (3) Private Organizations; (4) Multiple Sources; and (5) other sources.

1. In-house Neutrals Most Popular Source of Neutrals

With the exception of the U.S. Postal Service, which exclusively used contract neutrals, government-wide data shows that in FY 2005, neutrals from within the agency (In-house) were selected more often than any other source of neutrals at 49%. A three-year analysis of the data shows that neutrals from private organizations were used 67% in FY 2003, declining to 55% in FY 2004, and further declining to 14% in FY 2005. This recent fiscal year's decline can be directly related to the U.S. Postal Service's decline in ADR attempts from 973 in FY 2004 to 37 attempts in FY 2005. The second most utilized source of neutrals in FY 2005 was Another Federal Agency (35%), followed by Private Organizations at 14%. Multiple sources were used in 26 attempts (2%).

Section I :   Effectiveness of ADR in the Formal Complaint Stage

One factor in determining the effectiveness of ADR in the federal sector EEO process is the percentage of EEO disputes that are resolved. Of the 1,137 ADR closures during the formal complaint process in FY 2005, 775 (68%) resulted in a settlement or withdrawal. ⁽²⁷⁾ A three-year analysis of the data as set forth in Figure 6 shows that since FY 2003, the ADR resolution rate at the formal complaint stage has increased by 26 percentage points from 42% in FY 2003 to 68% in FY 2005. The ADR resolution rate has averaged nearly 62% over the three-year period.

Figure 6 - Trends in ADR Resolutions during the Formal Complaint Process FYs 2003 - 2005

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1. Department of State has Highest ADR Resolution Rate

In FY 2005, for agencies with five or more ADR closures, the Department of State had the highest ADR resolution rate in the formal complaint process. ⁽²⁸⁾ A table with the complete ranking of agencies by ADR resolution rate is located at www.eeoc.gov/federal/adr/datatables/index.html. Table 22 shows the agencies with the highest ADR resolution rate in the formal complaint process.

Table 22 - Highest ADR Resolution Rate in the Formal Complaint Process FY 2005

2. Defense Intelligence Agency has Most Improved ADR Resolution Rate

In FY 2005, for agencies with five or more ADR closures, the Defense Intelligence Agency, as shown in Table 23, had the most improved ADR resolution rate in the formal complaint process. ⁽²⁹⁾

Table 23 - Most Improved ADR Resolution Rate in the Formal Complaint Process FYs 2004 - 2005

3. Average Processing Time of ADR Closures Increases

A three-year analysis of the data as set forth in Table 24 shows that the average processing time (APT) for ADR closures during the formal complaint process decreased substantially from 127 days in FY 2004 to 66 days in FY 2005. As such, the average APT over the last three years has been 85 days.

Table 24 - Average Processing Time in the Formal Complaint ADR Process FY 2005

4. Overall Resolution Rate of Formal Complaints Decreases by 2%

Of the 22,974 complaint closures in FY 2005, there were 6,261 (27%) resolutions, including a total of 4,264 settlements. These resolutions were obtained through ADR and other negotiation processes (non-ADR) during the formal complaint stage. A three-year analysis of the data shows that the total resolution rate decreased from 40% in FY 2003 to 29% in FY 2004, to 27% in FY 2005, a decrease of thirteen percentage points overall.

5. Trends in Resolution Rates During the Formal Complaint Process

In FY 2005, the ADR resolution rate of 68% exceeded the non-ADR resolution rate of 25%. From FY 2000 to FY 2005, ADR has averaged a resolution rate of 62%, while non-ADR has averaged a resolution rate of 28%. The U.S. Postal Service reported only 45 ADR closures, therefore the government-wide data is not impacted by that agency.

Section J :   Benefits Obtained Through ADR Settlements in the Formal Complaint Stage

The types of monetary benefits reported were: (1) compensatory damages; (2) back pay/front pay; (3) lump sum; (4) attorney's fees; and (5) other monetary benefits. The types of non-monetary benefits reported were: (1) new hire; (2) promotion; (3) reinstatement; (4) expungement of records; (5) transfer; (6) rescind removal/voluntary resignation; (7) reasonable accommodation; and (8) other non-monetary benefits.

1. Average Amount of Complaint Settlement Benefits Increases

During the formal complaint process in FY 2005, 4,525 complaint closures received monetary benefits, totaling $51,662,616. In FY 2005, the average amount of monetary benefits (i.e., settlements and findings of discrimination) was $11,417 per case. From FY 2001 to FY 2004, the average amount of monetary benefits in complaint closures was $6,221. However, the five year average increased to $7,260 per case, due a significant increase in the amounts of benefits awarded in FY 2005. Table 25 shows a five-year comparison of monetary benefits.

2. Average Amount of ADR Monetary Benefits Increases

During the formal complaint process in FY 2005, there were 712 ADR settlements, including 323 with monetary benefits totaling $5,101,286. The average amount of monetary benefits was $15,793 for ADR settlements. From FY 2001 to FY 2004, the average amount of monetary benefits in ADR complaint closures was $8,277. However, the five year average increased to $9,781 per case, due a significant increase in the amounts of benefits awarded in FY 2005.

Table 25 - Comparison of Formal Complaint Monetary Benefits FYs 2001 - 2005

3. Lump Sum Payments Are Most Frequently Reported Monetary Settlement

The table below shows that in FY 2005, lump sum payments were the most frequently used type of monetary settlement benefit with the second highest average of monetary benefits.

Table 26 - ADR Monetary Benefits in the Formal Complaint Process ⁽³⁰⁾ FY 2005

4. "Other Non-Monetary Benefits" Were Most Frequently Reported

During the formal complaint process in FY 2005, ADR efforts resulted in 712 settlements, including 619 with non-monetary benefits. Table 27 shows that in FY 2005, "other non-monetary benefits" was the most frequently provided benefit, appearing in 371 of the ADR settlements. Examples of other non-monetary benefits include a modified appraisal rating, an updated position description, priority consideration, a detail, a desk audit, leave restored/modified, a neutral reference, and a reassignment of duties.

Table 27 - ADR Non-Monetary Benefits in the Formal Complaint Process ⁽³¹⁾ FY 2005

Section K :   Conclusion

A July 10, 2006, editorial in the Federal Times states that "…Latest figures clearly signal that the government's push to intervene earlier to settle workplace complaints is paying off. Statistics show ADR is very effective…" In comparing FY 2005 with FY 2004, the pre-complaint ADR offer rate decreased by four percentage points, while the election rate increased by six percentage points, the participation rate increased by two percentage points, and the resolution rate increased by three percentage points. In the formal phase, ADR was underutilized with a low offer rate of seven percent and an equally low participation rate of three percent. However, when ADR was used in the formal stage in FY 2005, the resolution rate was sixty-eight percent which is higher than in the informal stage.

During the pre-complaint process in FY 2004, the average ADR monetary benefit was $3,869. In FY 2005, the average amount of monetary benefits for ADR settlements decreased to $2,354. By contrast, the average for EEO counseling settlements decreased substantially from $8,174 in FY 2004 to $4,242 in FY 2005. Over the last four fiscal years, the average amount of monetary benefits for ADR settlements was $3,425, while the average for EEO counseling settlements was $7,029.

In FY 2005, the formal complaint ADR efforts resulted in 323 complaints receiving $5,101,286 in monetary benefits for an average of $15,793 per case which exceeds the FY 2004 average of $6,617. The non-ADR average monetary benefit increased from $6,226 in FY 2004 to $11,081 in FY 2005. Unlike the pre-complaint process where the ADR monetary benefit was less than the average of non-ADR monetary settlements, in the formal phase ADR monetary benefits exceed the non-ADR average monetary benefit.

GLOSSARY

ADR Attempts - The number of ADR technique(s) during a specific fiscal year in completed/ended counselings or complaint closures/closed complaints.

ADR Closures - The number of counselings or complaint closures that complete the ADR process during a fiscal year.

ADR Election Rate - Of the completed/ended counselings or complaint workload that received an ADR offer, the election rate represents the percentage that participated in the ADR process.

ADR Intake Officers - An individual in the ADR program who has been trained to conduct counseling duties for aggrieved individuals who have not contacted the EEO office.

ADR Offer Rate - The percentage of completed/ended counselings or complaint workload that received an ADR offer.

ADR Offers - The decision by an agency to offer ADR to an individual during the EEO process.

ADR Participation Rate - The percentage of completed/ended counselings or complaint workload where both parties agreed to participate in ADR.

ADR Resolution Rate - The percentage of ADR closures that were resolved by either settlement or withdrawal from the EEO process.

ADR Techniques - The methods used by an ADR program to resolve disputes. Types of ADR techniques include mediation, settlement conference, facilitation, early neutral evaluation, peer review, ombuds, fact finding, and mini-trial.

ADR Usage - The agreement by both parties to participate in the ADR process.

Alternative Dispute Resolution - A term used to describe a variety of approaches to resolve conflict rather than traditional adjudicatory methods. ADR is a process in which a third party neutral assists in resolving disputes by using various techniques to reach a resolution acceptable to the parties.

Average Processing Time - The total number of days divided by the number of ADR attempts in completed/ended counselings or ADR closures.

Complaint Closures - The agency's decision to close a complaint during the formal complaint stage as a result of settlement, withdrawal, dismissal, or merit decision.

Complaint Workload - The combined total of complaints filed, complaints pending from the previous fiscal year, and complaints remanded.

Complaints - An EEO dispute during the formal complaint stage of the EEO process.

Completed/Ended Counselings – The number of counseling which were concluded/closed, either by a written settlement agreement, a written withdrawal from the counseling process, the issuance of a notice of right to file a formal complaint, the forwarding of a counseling to an Administrative Judge when requested/ordered by the Administrative judge, or the filing of a complaint after the regulatory counseling period had expired even though not all counseling duties had been performed.

Counseling - A process during the pre-complaint stage where an agency EEO Counselor conducts an initial interview with the aggrieved person for the purpose of explaining the EEO complaint process, determining the claim(s), basis(es) raised by the potential complaint, determining jurisdictional issues, and to seek a resolution of the dispute. The process concludes when the Counselor either reaches a resolution or, alternately, advises the aggrieved person of his/her right to file a formal complaint of discrimination if attempts to resolve the dispute through EEO counseling or ADR were unsuccessful, and submits a report documenting that the EEO counselor undertook the required counseling actions.

EEO Complaint Process – A forum which allows federal applicants for employment or federal employees to file complaints of discrimination if they believe that the discrimination occured because of their protected basis as defined under Title VII of the Civil Rights Act of 1964, The Age Discrimination in Employment Act of 1967, the Rehabilitation Act of 1973 and the Equal Pay Act of 1963.

Neutrals - An impartial third party who has no vested interest in the outcome of a dispute that is utilized to aid the parties in resolving the issue in controversy.

Non-ADR Settlement – generally, a settlement reached by an EEO counselor during the pre-complaint process.

Parties - The parties in an EEO dispute include the aggrieved individual (or complainant) and the agency that is named in the complaint.

Resolutions - Resolutions include settlements where individuals received monetary and/or non-monetary benefits, and matters where the individual withdrew a counseling or a complaint from the EEO process.

Settlements - A counseling or complaint where the individual resolves the EEO complaint prior to a final agency decision or adjudication before an EEOC administrative judge and received monetary and/or non-monetary benefits from the agency in return for withdrawing the matter from the EEO process.

Withdrawals (No Formal Complaint Filed) - A counseling or complaint where the individual withdrew the matter from the EEO process without receiving any monetary and/or non-monetary benefits from the agency. In the pre-complaint stage, a withdrawal is also referred to as "No Formal Complaint Filed."

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Footnotes

1. ADR is a process in which a third party neutral assists the disputants in reaching an amicable resolution through the use of various techniques. ADR describes a variety of approaches to resolve conflict which avoid the cost, delay, and unpredictability of the traditional adjudicatory processes.

2. For the purposes of determining ADR usage, EEOC divides the total counselings accepted into ADR by the number of completed/ended counselings.

3. In Table 1, agencies with fewer than 25 completed/ended counseling are excluded. The Defense Intelligence Agency could not provide the size of its workforce due to national security reasons. "Total Work Force" data is included to provide the agency size for comparative purposes.

4. Success in one or more areas did not necessarily result in overall success in achieving an efficient complaint processing system. For instance, an agency may have excelled in producing a large number of investigations in a short time-frame, but may not have been timely in conducting EEO counselings, dismissing complaints or writing final decisions.

5.The ADR offer rate was adjusted to 100% for those agencies that submitted data which resulted in an ADR offer rate above the number of completed/ended counselings. This occurs when agencies have counselings in which they offered ADR but the counseling period did not close until the following fiscal year. In this table, agencies with fewer than 75 offers are excluded.

6.Beginning in FY 2004, EEOC started collecting PWTD data for the temporary work force; however, this table does not include the data for the Wage and Non-GS pay systems.

7.Detailed information concerning criteria and options for using the Schedule A and Schedule B appointment authorities can be found on the Office of Personnel Management's (OPM) website at http://www.opm.gov.

8. The ADR offer rate is obtained by dividing the number of ADR offers by the total number of completed/ended counselings.

9. In Table 4, agencies with fewer than 25 completed counselings are excluded.

10. The most improved ADR offer rate is determined by subtracting the ADR offer rate for FY 2004 from the offer rate for FY 2005.

11. In Table 5, agencies with fewer than 25 completed counselings are excluded.

12. In this table, average processing time tracks the number of days between the date that the individual elected ADR (accepted the agency's ADR offer during the reporting period) and the date that the ADR process or the reporting period ended. For the purpose of calculating the average days, ADR attempts were not considered if the agencies did not report the number of days. N/A, "not applicable," results from the Technique not being used in the fiscal year.

13. For more information about the use of neutrals in the federal sector EEO process, refer to the Administrative Dispute Resolution Act, 5 U.S.C. Section 571(9), and Chapter 3 of MD-110.

14. It should be noted, however, that anecdotal evidence indicates that in addition to resolving EEO disputes, ADR may also improve the parties' communication skills, reduce tension in the workplace, and help both parties avoid costly litigation expenses.

15. The term "resolutions" includes settlements where individuals received monetary and/or non-monetary benefits, and matters where no formal complaint was filed. The term "no resolutions" includes matters where ADR failed to resolve the dispute and the agency continued processing the complaint.

16. The ADR resolution rate is obtained by dividing the number of ADR resolutions by the number of ADR closures.

17. The most improved ADR resolution rate is determined by subtracting the ADR resolution rate for FY 2004 from the resolution rate for FY 2005.

18. Table 18 excludes agencies with fewer than ten ADR closures.

19. To determine the duration of each ADR case, agencies are instructed to add the number of days from the date the counselee elected ADR (accepted the agency's ADR offer) to the date that the ADR process ended.

20. "No ADR Attempt" includes cases where there is an ADR election but, ultimately, during the ADR process an ADR technique is not utilized.

21. Averages are determined by dividing the monetary benefit category (ADR or EEO counseling) by the number of counselings (ADR or EEO counselings).

22. The total number of counseling that settled with non-monetary benefits does not equal the aggregate of each type of non-monetary benefit, since one settlement agreement could include more than one type of non-monetary benefit.

23. The ADR offer rate is obtained by dividing the number of ADR offers by the number of the complaint workload.

24. The most improved ADR offer rate is determined by subtracting the ADR offer rate for FY 2004 from the offer rate for FY 2005.

25. The ADR participation rate is obtained by dividing the number of cases processed in ADR by the number of the complaint workload.

26. For each ADR attempt during the formal complaint process in FY 2003, the average processing time tracks the number of days between the date that the individual elected ADR and the date that the ADR attempt was completed. For the purpose of calculating the average days, ADR attempts were not considered if the agencies did not report the number of days. N/A, "not applicable," results from the Technique not being used in the fiscal year.

27. The term "resolutions" includes settlements where individuals received monetary and/or non-monetary benefits, and complaints withdrawn from the EEO process. The term "no resolutions" includes matters where ADR failed to resolve the dispute and the agency continued processing the complaint.

28. The ADR resolution rate is obtained by dividing the number of ADR resolutions by the number of ADR closures.

29. The most improved ADR resolution rate is determined by subtracting the ADR resolution rate for FY 2004 from the resolution rate for FY 2005.

30. The total number of complaints that settled with monetary benefits does not equal the aggregate of each type of monetary benefit, since one settlement agreement could include more than one type of monetary benefit.

31. The total number of complaints that settled with non-monetary benefits does not equal the aggregate of each type of non-monetary benefit, since one settlement agreement could include more than one type of non-monetary benefit.

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This page was last modified on November 7, 2006.