The EEOC serves literally every industry, segment of the population, and part of the country. Its role in preventing discrimination in the workplace has it serve as a source of advice and technical assistance while its enforcement role can place it across the table from a firm or federal agency in a very different capacity. The Commission's workload nationwide and in its individual offices is affected by such things as the state of the economy, demographic characteristics of the workforce, the growing immigrant population of the nation, and the challenges of serving customers from diverse backgrounds and with varied English-speaking abilities.

MAJOR TYPES OF WORK

Private Sector Case Processing

Potential private sector charging parties can initiate contact with EEOC by finding basic information on the web, visiting a field office, calling the national 800 number (which refers them to the field office nearest them), or calling the nearest field office directly. Once they locate an office, they are served through office visits and phone intake. Some offices also conduct on-site visits with the charging parties' employers (called respondents) more than others, in part a function of office policy and in part because of resource limitations or travel distances.

The EEOC receives approximately 80,000 private sector charge receipts (2) annually from individuals who believe that they have been victims of employment discrimination. The number of charge receipts per year has fluctuated from 72,302 in 1992 to 79,591 in 1998 to 80,840 in 2001 and was expected to reach 81,540 in 2002. However, the number actually rose to 84,442. Because it generally receives more charges than it can investigate during a year, the Commission has at times experienced a substantial buildup of its case inventory. It undertook a number of initiatives to address workload demands such as a rapid charge processing system, an early settlement process, and delegation to district directors of the authority to make reasonable cause determinations.

In 1995, the Commission implemented the Priority Charge Handling Process (PCHP), through which all private sector charges are classified in one of three basic categories:

· Category A-priority charges to which field offices devote principal investigative and settlement efforts (about 39% of charges)

· Category B-charges that appear to have merit but more investigation is needed before a decision can be made on their merits (about 57% of charges)

· Category C-charges with non-jurisdictional, self-defeating or unsupported allegations that are immediately closed (less than 2% of charges)

Category A charges are often divided into A-1 or A-2, with A-1 charges seen as those with the most likely success in litigation. Category B charges are usually assigned to the mediation program. In FY 2001, EEOC:

· Received 80,840 private sector charges of discrimination (highest level since mid-1990s)
· Cut the pending inventory (backlog) of charges by 5% to 32,481 (lowest level in 20 years)
· Through pre-litigation administrative enforcement, obtained $247.8 million for victims of discrimination
· Reduced the average charge processing time to 182 days, a 33-day decline from the previous year

Private Sector Litigation

Through its litigation program, overseen by the Office of General Counsel, the EEOC files lawsuits on behalf of individuals whom EEOC has determined have been the victims of egregious discrimination. In addition, the agency files "friend of the court" briefs in appellate and trial courts in support of Commission positions, usually in cases involving issues important to the development of the laws the EEOC enforces.

Historically, the Commission has filed lawsuits in a relatively small number of cases. This is because EEOC decided to allocate attorney resources in the administrative resolution of cases rather than through litigation. In FY 2001, EEOC:

· Filed 385 suits
· Resolved 319 suits
· Maintained a litigation workload of 842 cases (which includes active cases at the beginning of the fiscal year and those filed during the year)
· Obtained $51.2 million in monetary relief for victims of discrimination

This compares to 437 suits filed in FY 1999 and 290 in FY 2000. In the latter year, EEOC delayed some filings because of budget constraints. The overall litigation workload has also varied, rising from 582 in FY 1997 to 890 in FY 1999, and then declining to 875 in FY 2000 and 842 in FY 2001.

Also, EEOC has recently litigated more class cases. In FY 1997, the number of class cases on the active litigation docket was 112 (30% of the total), and in FY 2001 this increased to 210 (40% of the total docket).

The EEOC's attorneys increasingly assist in the administrative conciliation efforts or cases. In most EEOC districts, attorneys now work with investigators to advise them on relevant legal matters as they investigate a case and, should the charge move toward litigation, help prepare a more legally sound case.

Mediation Program

Mediation in EEOC is a pre-investigation dispute resolution procedure that targets Category B cases for possible resolution. EEOC's expansion of mediation as a resolution tool has been a deliberate one. In 1991, it experimented with a pilot program in four field offices, and an evaluation indicated this was a viable alternative to traditional investigatory methods. In 1994, an ADR task force recommended fully implementing a program, and EEOC adopted a policy statement on using ADR and set forth core principles. By the end of FY 1997, each district office had a mediation program in place, with each office using a variety of mediation services. In January 1998, the administration proposed and Congress passed an EEOC budget that was increased to allocate $13 million to expand the mediation program. An ADR Working Group developed a strategy to do this.

In FY 1999, EEOC conducted a Commission-wide training program, and determined that EEOC would use a combination of internal mediators and those hired on a contract basis. Some field offices also use pro bono mediators, and anyone who mediates for EEOC must be trained in the laws EEOC administers. In FY 1999, EEOC increased the charges eligible for ADR from 17,800 to 41,800.

At the time a charge is filed, the charging parties are advised that voluntary mediation is available and asked whether they would like to participate. Once the intake staff member classifies the charge as a Category B and the charging party agrees to participate in mediation, EEOC sends the employer (the respondent) the charge and a letter that offers a mediation opportunity. If the respondent agrees to mediation, that process is kept separate from the pending, and now suspended, investigation, creating what staff called a "firewall" that ensures confidential information obtained during mediation is not disclosed to EEOC investigators. Mediation records are kept separately and are not shared with investigators. This is in case the mediation fails and an investigation proceeds.

EEOC uses a mix of EEOC staff and contractors, a number of whom are with the Federal Mediation and Conciliation Service (FMCS). A 2002 study of EEOC mediation work(3) surveyed participants on the performance of the EEOC mediation program. An overwhelming majority of participants (91% of charging parties and 96% of respondents) said they would be willing to participate in mediation again if they were a party to an EEOC charge.

For FY 2001 EEOC:

· Successfully mediated 6,987 charges, with 5,248 handled by EEOC staff and 1,739 by contractors
· Obtained $90.4 million in monetary benefits through mediation
· Reduced average resolution time for a mediated charge to 84 days, a drop of 12 days from the prior year
· Secured agreement to mediate from 84% of charging parties; 33% of employers agreed to mediate

This compares to FY 2000, when there were 7,438 mediation successes, with 5,729 conducted by EEOC staff and 1,709 by contractors.

State and Local Programs

There are more than 100 state and local FEPAs. In fiscal year 2001, EEOC contracted with 92 of the FEPAs to resolve dual-filed charges. The Commission also contracted with 64 TEROs to promote employment opportunity on Indian reservations. Funds for FEPA and TERO activities are requested in EEOC's appropriation, and Congress has provided a stable amount at or near $30 million for several years.

The EEOC has reached Worksharing Agreements with the FEPAs and TEROs to avoid duplication of charge processing. Each charge of discrimination that is covered by an EEOC-enforced statute and a FEPA's law or ordinance is dual-filed under both laws, regardless of which agency receives it. The agreements prevent "dual-filed" charges from being investigated by two agencies. This way, employers avoid two investigations of the same matter, but the legal rights of the charging parties are still preserved under both laws.

Highlights for FY 2001 were:

· Resolved 54,851 charges through FEPA contracts. If these charges were added to the 80,840 charges EEOC received directly, they would greatly increase the Commission's workload.
· Conducted 30 joint outreach programs to educate and assist small businesses covered by EEOC-enforced statutes and reached underserved communities and groups.

Federal Sector Program

Unlike its private sector work, where complainants bring their proposed charges directly to EEOC, federal sector EEO complaints that come to EEOC have gone through an agency complaint processing program. Federal employees must first engage in the EEO process at the agency where they work or to which they applied for employment. There they work with an agency EEO counselor. After making this contact, the employee may be offered ADR if the agency deems the matter appropriate. If the employee accepts ADR, traditional counseling will cease and ADR will commence. If the employee is not offered ADR or does not accept it, he/she will continue with the counselor, who will conduct a limited inquiry into the matter and attempt to resolve it.

If either ADR or traditional counseling fails, the employee may file a formal EEO complaint with the agency. At this point, the employee must choose to file a formal complaint with the EEO program or in another forum, but not both.(4) When a complaint is filed with the EEO office, the agency will either accept it for investigation or will dismiss it on procedural grounds. ADR may be offered during the investigative process. A federal employee may file a mixed case complaint before the Merit Systems Protection Board (MSPB) or the agency EEO office.

After 180 days from filing a complaint or upon completion of the agency's EEO investigation, the complainant has the right to request a hearing before an EEOC AJ or request a Final Agency Decision. If the complaint is a mixed case complaint, the agency will issue a decision without a hearing. The complaint comes to EEOC only when: the complainant requests a hearing, he/she appeals a dismissal or a Final Agency Decision; or he/she appeals an MSPB mixed case decision. A request for an EEOC hearing is made directly to the EEOC District Office that has geographic jurisdiction over the agency where the complaint arose, or to the EEOC Washington Field Office.

EEOC's federal sector work changed substantially in November 1999 when new regulations became effective (29 C.F.R. Part 1614). Most significantly, EEOC AJs no longer issue recommended findings and conclusions. After conducting a hearing, the AJ issues a decision to the complainant and to the agency, either finding discrimination or finding no discrimination. The federal agency must accept a decision in its entirety and implement it or appeal to the EEOC's Office of Federal Operations (OFO) within 40 days.

AJs may also dismiss complaints on procedural grounds, such as untimeliness or failure to state a claim. In addition, the amended regulations provide new rules for consolidations and amendments of complaints at the investigation stage and the hearing stage.(5) The AJ may, after giving appropriate notice, issue a decision without a hearing where there are no genuine issues of material fact in dispute. These 1999 changes directly affect the number of hearings requests, the pending inventory, and the number of resolutions.

The EEOC also ensures that federal agencies maintain EEO programs required under Title VII and the Rehabilitation Act, and coordinates all federal programs and administers EEO statutes, executive orders, regulations, and policies that have EEO implications.

For FY 2001, EEOC:

· Received 10,448 federal sector cases
· Consolidated these into 9,817 cases
· Closed 9,402 consolidated cases, which represented 11,346 nonconsolidated cases
· Had pending 11,659 consolidated cases at the end of the fiscal year, which were comprised of 14,323 nonconsolidated cases.
· Received 6.894 appeals
· Had 9,333 appellate closures, which reduced the appeals inventory to 7,536 - a 24% reduction from the previous year
· Had obtained $8.3 million in benefits for complainants as a result of compliance monitoring of appellate decisions.

Table 2-1 shows the federal sector workload trends over fiscal years 1999-2001. Cases were not consolidated until FY 2000.

Table 2-1
Workload Data for Federal Sector Hearings

For a text description of Table 2-1, please click here

Among the indicators EEOC uses for federal sector work are percent of hearings older than 180 days, percent resolved within 180 days, and percent of appeal cases resolved within 180 days. Chapter Three discusses aspects of federal sector programs.

Outreach Activities

The EEOC has continued to expand its outreach, education and technical assistance initiatives over the years. The goal of the agency's outreach program is twofold: to encourage and facilitate voluntary compliance with the anti-discrimination laws among employers and employer groups in the private and federal sectors; and to increase knowledge about individual rights under the anti-discrimination laws among the public and employee groups, especially those most susceptible to discrimination.

For FY 2001, EEOC:

· Held 251 outreach events for employers to encourage participation in its mediation programs
· Provided education and information materials to 5,000 small employers (15-99 employees), as part of a special outreach initiative
· Served 52,983 private-sector and federal-sector employers who attended technical assistance activities, other than Revolving Fund activities
· Conducted 224 outreach, education, or other technical assistance activities to help federal agencies make EEO program improvements, including establishing ADR programs

Education, Technical Assistance and Training Revolving Fund Programs

In 1992, Congress created the EEOC Education, Technical Assistance and Training Revolving Fund. It is the vehicle through which EEOC can develop and deliver specialized external education, technical assistance and training related to the laws it enforces. It is made operational through the Technical Assistance Program Seminars (TAPS), which private and federal employers pay a fee to attend, and Customer Specific Training (CST).

In FY 2000, 2001 and 2002, EEOC conducted respectively 296, 367 and 426 Revolving Fund activities for private and federal-sector employees. Approximately 60 each year are TAPS, and the remainder are CST programs. EEOC staff deliver most of the programs, though there are plans to use more contractors in the future.

THE EEOC WORKFORCE

As of September 2002, the Office of Human Resources reported that EEOC's field offices had 2,156 employees and headquarters' offices in Washington, DC had 631 employees (23%), for a total of 2,787 on-board staff. Table 2-2 shows the number of staff per each HQ office, and for the field staff. Table 3-1 in Chapter Three lists the staff in each field office.

Table 2-2
EEOC Workforce by Office

For a text description of Table 2-2, please click here

The grade distribution of staff is:

For a text description of grade distribution, please click here

Investigators and attorneys comprise about 60% of the EEOC workforce, with an additional 5% made up of information technology and human resources staff.

In June 2001(6), OPM estimated that of the 2,700 employees then on board, 1,067 would be eligible to retire within the next ten years and 525 within the next five.

Chapter Five discusses many characteristics of the EEOC workforce.

PAST EFFORTS TO IMPROVE PROGRAM OPERATIONS

Over the years the agency has undertaken a number of initiatives to improve work processes as well as program delivery and supporting functions. Various work groups and task forces have made substantive recommendations.

The March 1995 Report of the Charge Processing Task Force changed the essential methodology for organizing and setting priorities for the private sector workload. As a result of implementation of many of this report's recommendations, the Commission eliminated the full investigation practice and developed procedures to give priority to charges that had the most law enforcement potential. Decisions as to priorities were to be guided by national local enforcement plans. The PCHP, as it came to be called, decreased the large backlog of private sector cases.

Many of the issues outlined in the March 1995 report continued to be discussed as the Academy did its review. Among them, expressed in terms of the 1995 report recommendations, were:

· The Commission should take the necessary action to delegate authority to the appropriate level in the field, and to terminate excessive oversight by headquarters.
· The Commission should retain control of litigation authority for significant cases involving policy issues or other important matters.
· Regional attorneys should be delegated authority to file suit in the most "routine" cases, should have prosecutorial discretion to decline to file suit when conciliation fails, and should be permitted to refer Title VII/ADA public sector conciliation failures directly to the Justice Department.
· Performance measurements for field programs and offices should include effectiveness in achieving the goals of the enforcement plans, results obtained in achieving the agency's mission, quality of work, and innovation in enforcement matters.
· The relationship between headquarters and the field, among field offices, and between legal and enforcement staff must be improved so that communication is encouraged, and second-guessing and fault-finding are replaced by a culture of working together toward common goals.
· The agency's effectiveness depends primarily on how it uses the talents of its people. Continuing education and training at all levels should be emphasized.

The March 1998 Priority Charge Handling Task Force Litigation Task Force Report had themes that are still valid today, especially the recommendations in its fourth critical area, some of which were:

· The Task Force recommends that the Commission continue to break down barriers between legal and investigative staffs so that each office functions as a cohesive team, with district directors and regional attorneys jointly accountable for meeting Local Enforcement Plan goals, including:

o building on recent successes in attorney-investigator collaboration in the development and litigation of National Enforcement Plan/Local Enforcement Plan cases in many offices
o enhancing the level of attorney support to investigators in local and area offices

Another example is the introduction of a mediation program into the enforcement process. By formalizing ADR as a choice in the investigative process, fair settlements and quick resolution of a substantial segment of cases have resulted.

National, Local, and Comprehensive Plans

The National Enforcement plan (NEP) was developed in 1995 to serve as the Commission's strategy to prioritize its caseload and focus resources on issues of national significance. To develop the NEP, the Commission consulted with external and internal stakeholders, including dozens of representatives of the employer, employee, labor, and civil rights communities at the national and local levels. EEOC also consulted with several regional attorneys and district directors and asked all of them to solicit suggestions from a wide range of EEOC staff, including union representatives.

The NEP expressed the general principles governing the Commission's enforcement efforts, established national enforcement priorities, set general parameters to develop the Local Enforcement Plans (LEPs), and delegated significant litigation authority to the Office of General Counsel so that the Commission could most effectively accomplish its enforcement objectives. The principles are:

A. The Commission is committed to an enforcement plan that encompasses a three-pronged approach to eliminate discrimination in the workplace: (1) prevention through education and outreach; (2) the voluntary resolution of disputes; and (3) where voluntary resolution fails, strong and fair enforcement.

B. The Commission recognizes that given the budget constraints under which it operates, it cannot be all things to all of its constituencies. Moreover, the Commission must be candid with the public regarding the decisions that it makes.

C. The combination of limited resources and increasing demands on the Commission requires a carefully prioritized and coordinated enforcement strategy. Strategic enforcement will ensure the most effective use of the Commission's resources by ensuring that available funds are devoted to efforts that have the potential to yield the greatest dividends in achieving equal employment.

D. The Enforcement Plan must ensure fair, aggressive and credible enforcement of all of the statutes enforced by the Commission regardless of the basis of discrimination or the issue.

E. Determination of whether a case should be pursued under the NEP will be based on the issue raised and an assessment of the strength of the case.

F. The Commission's enforcement activities will not be limited exclusively to the enumerated priority areas. With regard to charge processing, the Commission will issue cause findings in all cases in which it determines that it is more likely than not that discrimination has occurred and will proceed to conciliation in such cases. With regard to litigation, the Commission may pursue certain cases in which it has found cause, even though those cases do not fall clearly within an enumerated enforcement priority. At the same time, the Commission will not pursue litigation on every charge that falls within the NEP or LEPs.

G. Enforcement efforts must be directed to the resolution of the Commission's pending inventory… the National and Local Enforcement Plans must provide immediate strategies for continuing to reduce the existing inventory of cases.

The Comprehensive Enforcement Program (CEP) strategy built on the PCHP success and the NEP, and FY 2000 was the first full year of the agencywide CEP. The Private Sector CEP was designed to increase collaboration among front-line functions, from outreach and intake through case resolution. The Federal Sector CEP was to expand EEOC efforts to reduce discrimination and reduce the hearings and appeals inventories. Key to the Federal Sector CEP were the 1999 revised federal sector regulations, discussed previously in this chapter.

EEOC National Labor-Management Partnership Council

EEOC's National Labor-Management Partnership Council was formed in 1995. The Council established guidance and developed general parameters for the Commission's flexiplace program, which allows employees whose work can be accomplished at home to participate in the program on a volunteer basis with supervisory concurrence. In March 1996 the Commission received the Hammer Award(7) for implementing the partnership structure and improving the relationship between labor and management at the agency.

While the current administration abolished the Council, the agency and the union indicated they have a productive working relationship. When the New York Office was destroyed on September 11, 2001, the union was invited to participate fully in the discussions of what was to be done, and in the subsequent actions taken to protect the employees and the work of the organization. The negotiation of a new labor-management agreement proceeded in a timely fashion and was signed in June 2002.

FIVE-POINT PLAN

The current Chair developed a Five-Point Plan, which is a strategic framework that places priority on coordination, innovation and results. Its five elements are:

· Proactive Prevention: provide information and solutions that will enable EEOC to identify and solve problems before they escalate into intractable conflict.

· Proficient Resolution: ensure that all EEOC activities and functions are consistent, accurate and timely, and seek ways to evaluate and improve every stage of the private and federal sector processes. A key component of these efforts is the new Integrated Mission System, which is designed to track the disposition of a private sector charge from initial contact through litigation, if necessary.

· Strategic Enforcement and Litigation: enforcement, litigation, and federal sector programs will identify workplace trends and issues so as to make informed decisions on what topics merit EEOC attention and allow the Commission to better integrate its policy, guidance, investigative, litigation, and federal coordination functions to prevent employment discrimination.

· Promotion and Expansion of Mediation/ADR: develop a comprehensive, agency-wide ADR program involving all enforcement activities and dispute resolution programs. Expand the use of ADR in federal sector programs and develop a model ADR program to handle EEOC's internal workplace disputes.

· EEOC as a Model Workplace: make readily apparent in EEOC's own programs the principles and standards the Commission promotes to businesses and other federal agencies. To achieve this, EEOC will build an organization committed to providing opportunities for employees to grow professionally.

FREEDOM TO COMPETE INITIATIVE

EEOC's national "Freedom to Compete" campaign is designed to eradicate discriminatory employment barriers and create a level playing field for all workers. In conjunction with the initiative, the Chair convened roundtable discussions throughout the country to gain insight into the major issues facing the EEOC and to explore new ways to broaden the agency's presence in the workplace. More than 100 individuals from many professions, industries, and backgrounds participated in the roundtable. Common themes stressed the need to:

· Enhance EEOC's image as an objective, independent and nonpartisan enforcement agency
· Recognize and reward best EEO and diversity practices in the workplace
· Separate enforcement activities from proactive prevention efforts
· Promote the business case for sound EEO/diversity practices
· Develop, design, and distribute self-assessment tools and comparative data for employers to rate EEO performance and ranking
· Communicate good news and stories of public interest

There were specific recommendations that participants determined to be most supportive of the themes and warranted EEOC's attention. These recommended actions are:

1. Create a clearinghouse of EEO and diversity workplace best practices within the Commission
2. Complement the agency's enforcement and litigation units with an equally strong and independent outreach/communications unit
3. Evaluate EEOC-collected data to anticipate trends and shifts in the workplace and share information with the public
4. Establish lines of communication at the highest levels of organizational leadership
5. Develop strategic partnerships and alliances with stakeholders that can influence positive change in the workplace
6. Recognize and reward excellent EEO practitioners

The Chair is convening work groups to act on these recommendations and to continue to explore other ideas raised during the roundtables. In reviewing the list of six recommended actions as well as other suggestions underlying each of the six themes, the Academy Panel found that many of the ideas were consistent with its recommendations.

A working group of agency executives and staff is now adjusting the EEOC's strategic plan to reflect the Five-Point Plan and the Freedom to Compete Initiative. The anticipated completion date for this work is the late winter of 2003.

RECENT EFFORTS TO MAKE IMPROVEMENTS

A December 2001 Andersen Business Consulting report, Organization Assessment of Finance and Human Resources Functions, examined the Office of the Chief Financial Officer and Administrative Services (OCFO) and the Office of Human Resources (OHR). For human resources, the report found that the EEOC decentralized human resources function did not effectively or efficiently support the mission and program office business operations. The lack of focus on strategic human resources planning resulted in overemphasis on processing personnel transactions, often at the expense of value-added activities. In addition, the report noted that customer service is impeded (reactive versus proactive) by the absence of uniform policy and procedural guidance, process inefficiencies, resource imbalances relative to workload, and skill deficits in the human resources workforce.

The report recommended that EEOC contract for services in recruitment, position classification and records management, and outsource its training design and delivery functions. It also recommended consolidating EEOC human resources staff into two branches and eliminating most positions in the field. Andersen estimates that implementing these recommendations would save $4.4 million between FYs 2002 and 2004 and reduce the human resources staff by 44 full-time equivalent positions.

In finance, the report noted that the decentralized structure does not support the EEOC mission and program office business operations. Among other points, the report noted the lack of formalized policy and procedural guidance, processing inefficiencies, and inconsistencies in service delivery, specifically in vendor payments processing and travel management and voucher processing. The report was critical of the divided structure of the revolving fund accounts receivable, which is shared between the OCFO and the Office of Field Programs. Andersen Business Consulting made several recommendations to address these weaknesses.

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2. A charge is an allegation of employment discrimination. It is brought by an individual (the charging party) against a private sector employer. EEOC does an initial intake interview to determine if there is sufficient merit to continue with a full investigation.(return to text)
3. Dr. E. Patrick McDermott, et. al., An Evaluation of the Equal Employment Opportunity Commission Mediation Program, September 20, 2000, prepared under EEOC Order No. 9/0900/7632/2.(return to text)
4. The exception is that employees at the United States Postal Service, Tennessee Valley Authority, and Postal Rate Commission can file formal complaints under the EEO process and the agency's negotiated grievance procedure.(return to text)
5. Consolidated cases are those that combine filings from the same employee against the same agency, or represent two or more complaints filed against the same agency by different complainants that raise substantially similar allegations of discrimination or relate to the same matter.(return to text)
6. EEOC, Workforce Analysis for the President's Restructuring Initiative, prepared in response to OMB Bulletin 01-07, June 2001, p. 12.(return to text)
7. The Hammer Award was presented by Vice-President Gore in conjunction with the National Performance Review, and recognized achievement and innovation in federal activities.(return to text)

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