Performance Results

Results Achieved in FY 2012 Under Strategic Plan Performance Measures

Overview of the Strategic Plan and Performance Measures

This Performance and Accountability Report is based on the EEOC's new Strategic Plan for Fiscal Years 2012 through 2016 (the "Plan"), approved by the Commission on February 22, 2012. In the process of developing the Plan, the Commission engaged in a methodical and calculated assessment of the agency's programs and priorities. As a result, the EEOC believes it is positioned to embrace the agency's new mission to stop and remedy unlawful employment discrimination, and to realize our vision for the 21^st century of justice and equality in the workplace, by focusing on the following three strategic objectives:

• Strategic Objective I: To combat employment discrimination through strategic law enforcement. This Objective reflects the agency's primary mission of preventing unlawful employment discrimination through the use of: 1) administrative (investigation, mediation and conciliation) and litigation enforcement mechanisms with regard to private employers, labor organizations, employment agencies, and state and local government employers; and 2) adjudicatory and oversight mechanisms with regard to Federal employers. Seven performance measures were developed for Strategic Objective I.

• Strategic Objective II: To prevent employment discrimination through education and outreach. This Objective acknowledges that to successfully prevent employment discrimination through education and outreach, the EEOC must also work to prevent employment discrimination before it occurs. Investigations, conciliations, and litigation are only some of the means by which the agency fulfills its mission and vision. The Commission is also authorized to engage in education and outreach activities, including providing training and technical assistance, for those with rights and responsibilities under employment antidiscrimination laws. Four performance measures were developed for Strategic Objective II.

• Strategic Objective III: To deliver excellent and consistent service through a skilled and diverse workforce and effective systems. This Objective ensures that the EEOC will deliver excellent and consistent service through our efforts to support a skilled workforce and the deployment of effective systems. Two performance measures were developed for Strategic Objective III.

The final budgetary resource measure, Performance Measure 14, and the agency's strategic objectives, outcome goals, and 13 other performance measures identified in the Plan are depicted in the Strategic Plan Diagram below. Each measure is analyzed in greater detail on the following pages.

 

 

 

 

 

 

Results Achieved Under Specific Performance Measures

STRATEGIC OBJECTIVE I: Combat employment discrimination through strategic law enforcement.

The EEOC's ability to support a strategic law enforcement objective lies in achieving two critical goals: 1) have a broad impact in reducing employment discrimination at the national and local levels; and 2) remedy discriminatory practices and secure meaningful relief for victims of discrimination. In order to effect a reduction of employment discrimination in a far reaching and extensive manner, there are four key strategies identified under Strategic Objective I:

• Develop and implement a Strategic Enforcement Plan that: 1) establishes EEOC priorities; and 2) integrates EEOC's investigation, conciliation, and litigation responsibilities in the private and state and local government sectors; adjudicatory and oversight responsibilities in the federal sector; and research, policy development, and education and outreach activities;

• Rigorously and consistently implement charge and case management systems to focus resources and enforcement on agency priorities (beginning in FY 2013);

• Use administrative and litigation mechanisms to identify and attack discriminatory policies and other instances of systemic discrimination; and

• Use agency decisions and oversight activities to target discriminatory practices and policies in federal agencies (beginning in FY 2013).

Moreover, the strategies for remedying discriminatory practices and seeking equitable relief where discrimination has occurred will 1) ensure that the remedies end discriminatory practices and deter future discrimination; and 2) provide meaningful relief to individual victims of discrimination.

EEOC has developed Performance Measures 1 through 6 to track its progress in pursuing these strategies and Performance Measure 7 to track the progress of its state and local partners.

Strategic Enforcement Plan

Following agency approval, the Strategic Enforcement Plan (SEP) is expected to replace EEOC's current National Enforcement Program. Its implementation will ensure a targeted, concentrated, and deliberate effort to identify and pursue priority issues and practices that significantly affect applicants, employees, and employers.

The SEP promotes an integrated, holistic approach to enforcement by: 1) lowering the conceptual barrier between the EEOC's work in the investigation and conciliation stage and its work in the litigation stage; 2) incorporating the EEOC's oversight and adjudicatory work in the federal sector; and 3) integrating the agency's education and outreach activities into its enforcement efforts. The desired outcome will be an EEOC where all of its operations work in tandem to achieve its mission of stopping and remedying unlawful employment discrimination.

For FY 2012, the target for this measure was to develop a draft SEP for agency approval by September 30, 2012. Even though the Commission did not approve an SEP by the targeted date, substantial progress has been made to finalize a draft SEP for Commission approval within the first quarter of FY 2013. For example, in March, the Chair designated the SEP Workgroup to develop a draft SEP for Commission consideration. The process was officially launched on April 5, 2012. From April through June, the Workgroup met regularly to develop a draft; program offices briefed the Workgroup and the Commission on issues related to the SEP's development. On June 5, 2012, the Workgroup solicited public input into the development of the SEP - receiving more than 100 comments.

In July 2012, the Commission held a closed meeting on selected investigations and litigation and a separate public meeting with over 30 witnesses to solicit public input into the development of the SEP. In September 2012, the Commission released a draft of the SEP to solicit public input and received more than 70 comments. The Commission has continued its work through September on a final draft of the plan for circulation and in preparation for a vote. However, the Chair, at the request of the Commissioners, postponed the vote to allow additional time to consider and incorporate the public comments received on the draft. A vote is expected in December 2012.

Quality Control Plan

** Not applicable for FY 2012.

Performance Measure 2 will be effective starting in FY 2013. At that time, this measure will require EEOC to develop appropriate criteria to ensure a quality investigation and conciliation, such as whether charges are appropriately reassessed on a timely basis or how efficient and timely are the investigations. In addition, this measure will require the agency to develop a peer review assessment system that will be used to judge the quality of EEOC's investigations and conciliations.

Case Management System

** Not applicable for FY 2012.

Performance Measure 3 will be effective starting in FY 2013. At that time, this measure will require EEOC to develop categories for federal sector cases according to a new case management system.

Systemic Cases

Under the new Strategic Plan "systemic cases" are defined as pattern or practice, policy, or class cases where the alleged discrimination has a broad impact on an industry, occupation, business, or geographic area. Performance Measure 4 provides an incentive for the agency to conduct systemic investigations when it finds evidence of potential widespread discriminatory practices. It also requires the agency to carefully consider the systemic cases it chooses to litigate and to bring fewer individual and small class claims of discrimination, since systemic litigation requires significantly greater resources than other types of litigation.

The FY 2012 target for Performance Measure 4 was to establish a baseline and project corresponding future targets. The Office of General Counsel (OGC) established a baseline of 20 percent, which represents the proportion of systemic cases on the active litigation docket at the end of FY 2012. Utilizing this baseline, as well as a comprehensive review of historical suit filing and resolution trends, and systemic case development trends, the agency projected targets for performance through FY 2016. By FY 2016, the agency projects that 22-24 percent of cases on its active litigation docket will be systemic cases..

Federal Sector Workforce Analysis

** Not applicable for FY 2012.

Performance Measure 5 will be effective starting in FY 2013. At that time, this measure will require the agency to create and implement a data system of complaint, hearing, and statistical employee data in order to establish priorities in the federal sector - an integrated data system that can identify potentially discriminatory policies or practices in those agencies and help set priorities for the prevention of discrimination in the Federal government.

Administrative and Legal Resolutions with Targeted Relief

** Not applicable for FY 2012.

FEPA Resolutions with Targeted Relief

Performance Measures 6 and 7 were designed to encourage EEOC and the state and local Fair Employment Practices Agencies (FEPAs) to seek targeted equitable relief in every cause case. Targeted, equitable relief means any non-monetary and non-generic relief (other than the posting of notices in the workplace about the case and its resolution), which explicitly addresses the discriminatory employment practices at issue in the case, and which provides remedies to the aggrieved individuals or prevents similar violations in the future. Such relief may include training for supervisors and employees, development of policies and practices to deter future discrimination, cessation of existing discriminatory policies or practices, and external monitoring of employer actions, as appropriate. OFP also worked with OGC and OIT to develop a strategy for the targeted equitable relief categories of monetary and non-monetary relief that would be captured in IMS, as well as the definitions for the calculations to reflect the measure's achievements in out-years.

Performance Measure 6 will be effective starting in FY 2013. At that time, this measure will require the agency to collect data on the percentage of administrative and legal resolutions currently containing targeted, equitable relief. In addition, we will need to establish a baseline of existing targeted, equitable relief in resolutions and project future targets for different types of targeted, equitable relief. The agency has developed a strategy for determining which types of relief will qualify as targeted equitable relief and for tracking that information in its charge database.

An important activity undertaken by both EEOC and the FEPAs is the negotiation and resolution of charges after an investigation has determined that reasonable cause exists to believe that unlawful employment discrimination has occurred. The FY 2012 target for Performance Measure 7 was to identify, design, and implement, in accord with the FEPAs, a new reporting process for determining what percentage of FEPA resolutions contain targeted, equitable relief. The EEOC's FEPA 2012 Annual Training Conference, held May 29 through June 1, 2012, in St. Louis, Missouri, provided the forum for the launch of a dialogue with the EEOC's FEPA partners about the reporting processes. Members of the EEOC/FEPA Joint Standing Committee held discussions to secure further feedback. Based on their input, the EEOC's Office of Field Programs (OFP) developed content for the Office of Information Technology (OIT) to use in the data collection plan for targeted equitable relief and related reporting for both FEPAs and EEOC. The design for the reporting process was developed with an eye toward consistency within IMS for recording targeted equitable relief data.

STRATEGIC OBJECTIVE II: Prevent employment discrimination through education and outreach.

In FY 2012, the EEOC continued a robust outreach program to meet the needs of diverse audiences across the nation. In so doing, the agency maintained and established new relationships with the employer community, colleges and universities, advocacy groups, the growing underserved that include immigrant and farm worker communities, governmental entities, and other stakeholders to foster strategies to recognize and prevent discrimination in the workplace. The anticipated result of these outreach efforts is that: 1) members of the public will understand and know how to exercise their right to employment free of discrimination; and 2) employers, unions, and employment agencies (covered entities) will be better able to address and resolve EEO issues, thereby creating more inclusive workplaces.

The three strategies EEOC adopted for achieving the goals of Strategic Objective II are:

• Target outreach to vulnerable workers and underserved communities;

• Target outreach to small and new businesses; and

• Provide up-to-date and accessible guidance on the requirements of employment antidiscrimination laws.

Performance Measures 8 through 11 were developed to track our progress in pursuing these strategies.

Vulnerable and Underserved Communities

Small and New Businesses

Performance Measures 8 and 9 focus on encouraging interactive and sustained partnerships with community organizations and businesses represent the targeted areas the EEOC is trying to reach. For FY 2012, the target for Performance Measure 8 was to define the terminology to be used in measuring these "significant partnerships" with vulnerable workers and underserved communities; as well as creating a baseline for building and maintaining future partnerships. The FY 2012 target for Performance Measure 9 similarly requires the agency to define terms related to measuring its significant partnerships with small and/or new businesses, while creating a baseline and projecting future targets.

For these two measures, the agency has defined "significant partnerships" as an interactive and sustained relationship with an organization, community group, advocacy group, or other entity that represents or serves vulnerable or underserved communities and enhances EEOC's ability to reach those communities. "Vulnerable workers" are those workers whose options may be severely limited due to economic or social barriers and whose ability to understand or exert their rights may be compromised. This includes, but is not limited to, low wage earners, farm workers, refugees, victims of human trafficking, youth, and older workers. Finally, "underserved communities" has been defined as those communities whose demographics, geographic location, or economic characteristics impede or limit their access to services provided by EEOC.

By the end of FY 2012, the Commission had identified approximately 90 significant partnerships within the vulnerable worker and underserved communities for Performance Measure 8. To create a baseline of existing significant partnerships, each district submitted brief descriptions of current partnerships that met the definition of a significant partnership as contemplated by Performance Measures 8. Based upon this data, the agency established goals for FY 2013 and FY 2014 to increase the number of significant partnerships under this measure by 10 percent in both FY 2013 and FY 2014 and to maintain the increased level of partnerships in FY 2015 and FY 2016.  We also developed and shared best practices on significant partnership approaches with the District Directors and Program Analysts. 

Approximately 71 significant partnerships exist with organizations that represent small and new businesses (or with businesses directly), which contributes to the Commission's objective of preventing employment discrimination through education and outreach to employers, had been identified for Performance Measure 9. To create a baseline of existing significant partnerships, each district submitted brief descriptions of current partnerships that meet the definition of a "significant partnership" as contemplated by Performance Measures 9. With this data, the agency established goals for FY 2013 and FY 2014 to increase the number of significant partnerships under this measure by 10 percent in both FY 2013 and FY 2014 and to maintain the increased level of partnerships in FY 2015 and FY 2016.  Best Practices were also developed and shared with the District Directors and Program Analysts.

Social Media Plan

Performance Measure 10 ensures that the agency moves into the 21^st century through the utilization of social media technologies to reach EEOC's customers.

The social media plan will build upon existing efforts to make the content on EEOC's Web site more accessible and user-friendly. It will foster better use of the internet and other technology in the private and state and local government sectors and the federal sector charge processes. It will use multiple forms of social media platforms and educational content appropriate for each platform, with the goal of informing users about their rights and responsibilities under the laws the agency enforces. Ideally, the plan will drive our customers to the agency's Web site for more information. It will also ensure that EEOC's social media strategies are consistent with the Strategic Enforcement Plan and other administrative priorities and appropriate directives.

The FY 2012 target for Performance Measure 10 was to create a Social Media Work Group, responsible for establishing a baseline and determining the technological requirements in support of the media strategy underlying the agency's Social Media Plan. During FY 2012, the agency began efforts toward establishing a baseline and determining the appropriate technology needs to implement a social media plan for the Commission. A work group was established to determine the legal and technological requirements and was slated to provide technical guidance and modifications to existing draft guidelines by the end of the fiscal year. By the end of FY 2012, the Work Group had completed its assessment of the legal, technological, and related requirements for the development of a social media plan for the Commission, and had finalized a draft social media plan for circulation.

Sub-Regulatory Guidance Review and Revision

Performance Measure 11 ensures that EEOC's sub-regulatory guidance and documents are reviewed and that, where necessary, they are updated and accompanied by plain language text.

The agency's enforcement work in the private sector, its adjudicatory and oversight work in the federal sector, and its outreach and education work all depend on the availability of up-to-date and accessible materials explaining the laws it enforces and how to comply with those laws. While the regulations EEOC issues set the basic legal framework for the implementation of those laws, sub-regulatory materials, including the EEOC Compliance Manual, provide more tangible assistance to those with rights and responsibilities under such laws.

Performance of this measure in FY 2012 required agency staff to provide at least four plain language revisions of substantive policy documents to the Office of the Chair (OCH) for approval, as needed. The EEOC exceeded this performance measure for FY 2012. In February, revisions of two documents on the ADA employment rights of veterans -- one for employers and one for veterans -- were issued. Among other things, the revised documents discuss how the new definition of "disability" under the ADA Amendments Act applies to wounded veterans. In April, the Commission issued Enforcement Guidance on the Use of Arrest and Conviction Records in Employment decisions, along with a question-and-answer document describing the guidance. An additional seven documents were submitted for consideration.

STRATEGIC OBJECTIVE III: Deliver Excellent and Consistent Service through a Skilled and Diverse Workforce and Effective Systems.

The intent of this objective is to ensure that the EEOC delivers excellent and consistent service through its efforts to support a skilled workforce while deploying effective systems -

many of which service the public directly. Effective customer service and operating systems can positively influence the general public's understanding of the Commission's ability to address their employment discrimination concerns in the workplace. As a result, this measure was designed to focus on issues regarding staff and infrastructure, which are mission critical components of any successful organization.

The ultimate benefit is that all interactions with the public are timely, of high quality, and informative. As noted in Strategic Objective I, it is a significant agency priority to enhance the timeliness and ensure the continued quality of enforcement activities in the private, state and local government, and federal sectors. However, the EEOC must also invest in the men and women who carry out the agency's mission on a daily basis. To meet the evolving needs of the modern workplace and any changes in EEO law interpretation, it is necessary to invest adequately in workforce development and planning. Because all employees benefit with a diverse workforce in federal government, the EEOC must serve not only as an example to other private, state and local government, and federal employers, but should reflect the populations it serves. Finally, to improve the agency's customer service, the EEOC must ensure the effectiveness of its systems by leveraging technology to streamline, standardize, and expedite its critical functions.

To these ends, the Commission developed three strategies for achieving Strategic Objective III:

• Effectively engage in workforce development and planning, including identifying, cultivating, and sustaining a skilled and diverse workforce;

• Rigorously and consistently implement charge and case management systems to deliver excellent and consistent service; and

• Use innovative technology to facilitate responsive interactions and streamline agency processes.

For this Objective, EEOC has adopted Performance Measures 12 and 13 to support and monitor the agency's progress toward our FY 2016 targets.

Workforce Quality, Diversity, and Skills

The EEOC is currently in the process of developing and implementing plans that will strengthen the skills and improve the diversity of its workforce through:

The Strategic Human Capital Plan (SHCP) outlines the agency's structure, strategic goals, standards for success, and major human capital initiatives. Its alignment with the Strategic Plan will ensure that EEOC employees understand and support the agency's goals and approach, and have the skills, knowledge, and competencies necessary to perform the work required by the agency's mission.

The Human Capital Goals for FY 2012, as identified in the agency's Human Capital Management Report, were:

1. Workforce Planning. Enhancing the ability to plan further into the future and better integrate FTE's, budget, and workload metrics into the planning process.

2. Performance Management. Creating a culture where Specific Measurable Actionable Relevant Timely (SMART) goals/objectives are the norm and cascade from the strategic plan to all employees; performance is measured and properly rewarded with a fair and transparent award system; and communications between leaders, supervisors, and employees are clear and occur often.

3. Onboarding/Orientation. Enhancing the ability to attract, hire, and retain highly skilled and highly motivated staff.

In the third quarter of FY 2012, the Commission formed a Workforce Planning Workgroup to begin implementation of the agency's workforce planning goals based on the agency's Workforce Planning Guide. Their goal will be to develop a workforce plan for FY 2013, and the out years.

In the area of performance management, EEOC has engaged an independent contractor to provide expert guidance and assistance to the agency in developing an improved performance management program. The long-term goal is to create a performance culture that helps EEOC become a high performing agency. The near-term goals of identifying competencies, measuring degrees of proficiencies, and closing competency gaps that are considered significant components of the program are more than half-way completed. To complement workforce planning efforts, specifically recruitment and retention, the Commission has begun to examine "on-boarding" and orientation processes. One goal is to extend the orientation process over a period of several months to ensure new employees have the support they need to fully integrate into the agency.

EEOC's Diversity and Inclusion Plan, pursuant to Executive Order 13583 on Establishing a Coordinated Government-wide Initiative to Promote Diversity and Inclusion in the Federal Workforce is under development. Upon completion, it will be modeled after the plan prepared by the Office of Personnel Management (OPM), in partnership with EEOC, for all federal agencies. The Commission will continue to work with OPM and the Office of Management and Budget in implementing this government-wide initiative, including reviewing executive agency plans and working to reconcile the Presidential Administration's diversity and inclusion efforts with the EEOC's Management Directive 715 requirements. (See Management Directive 715, Equal Employment Opportunity Commission (Oct. 2003), http://www.eeoc.gov/federal/directives/md715.cfm).

EEOC's Operational Plan for Increasing Employment of Individuals with Disabilities was released in FY 2012, pursuant to Executive Order 13548 on Increasing Federal Employment of Individuals with Disabilities. The agency's operational plan has set a target of increasing the percentage of employees with targeted disabilities to 5 percent and increasing the percentage of employees with disabilities covered under the Section 501 of the Rehabilitation Act to 20 percent of EEOC's workforce within 5 years.

In FY 2012 the EEOC established annual targets for increasing the employment of individuals with disabilities. The FY 2012 target for Performance Measure 12, Subpart (a) was to increase the number of persons hired with disabilities to 20 percent of EEOC's workforce over 5 years, or at least 29 disabled employees each year over the FY 2011 baseline of 355 employees with disabilities. Successful performance under Subpart (b) was to increase the number of employees with targeted disabilities by 5 percent, or at least 11 individuals each year over the FY 2011 baseline of 68 employees with targeted disabilities. And finally, Subpart (c) required the agency to improve and streamline the hiring process to increase the percentage of hires made within 78 days to 25 percent of all hires made in FY 2012.

In FY 2012, the EEOC only partially met its targets for Performance Measure 12. Overall hiring in fiscal year 2012 was down, which affected the agency's ability to increase the number of employees hired either with disabilities or targeted disabilities under Subparts (a) and (b). The limited hiring factor and correlating numbers of retirements of employees with disabilities resulted in the numbers of employees with disabilities and targeted disabilities decreasing since the establishment of the fiscal year 2011 baselines for both employee groups. However, the agency has exceeded its target of 25 percent under subpart (c), by increasing the percentage of hires made within 78 days to 45 percent - far exceeding the targeted number of hires in fiscal year 2012.

Charge Process Responsiveness

Performance Measure 13 requires the agency to leverage technology to improve the private and state and local government sectors charge process, including streamlining services and increasing responsiveness to customers throughout the process. Initiatives that are currently in the requirements phase include: 1) developing an on-line system that will allow potential charging parties to submit a pre-charge inquiry for review; 2) providing on-line scheduling of appointments for intake interviews (via on-site meetings, web cams, and/or teleconference); 3) providing charging parties on-line access to check the status of their charge; and 4) streamlining the intake process through automated workflow and data analysis. These technology developments are referred to as the Online Intake and the Milestones Status Projects. The fifth item will require the agency to establish a secure portal for electronic transmittal and the receipt of charge-related documents.

For FY 2012, the target for this measure was to define the requirements, automated workflow, customer self-service opportunities, and systems design specifications and to establish future targets. By fourth quarter fiscal year 2012, the Online Intake and Milestone Project workgroups had defined the technology requirements, the automated workflow, and the opportunities for customer self-service, utilizing the Agile methodology for project management as described below.

The Agile Method refers to a collection of software development methodologies that permits program managers and technology developers to work collaboratively on evolving requirements throughout the development process. Under the Agile Method, Agile designs are emergent and not fully defined up front, with the overall system design evolving over the project period, allowing for the identification of new requirements and new technologies. Thus, under Agile, it is the User Stories and Roadmap developed by the project team that becomes the requirements from which the IT partners base their initial design specifications but these specifications evolve during the course of the project development.

OFP provided the OIT with the necessary User Stories, Roadmap and Theme Framework that constituted the baseline for the initial systems design specifications. Since the Agile Method does not contemplate complete design specifications at the outset of the planning phase of the project, the target for this Measure has been met because the documents that have been developed constitute the basis for the overall architecture and systems design as they relate to the initial phase of these projects. Utilizing this information, OIT has developed the cost estimates for resources to develop and implement the new system features as part of the system design.

Budgetary Resource Alignment

As a fundamental objective, budgets should adequately fund priority programs, grow such programs to reflect the agency's priorities, and protect against diminution when budgets are reduced. Under the Chair's direction, annual budget submissions from each program office will be used to validate how agency resources would implement the strategies and goals of the Commission.

During the FY 2014 budget formulation cycle, the Chair reviewed and discussed the program offices' proposed budget submissions with senior agency officials. In the process, Commission resources were reallocated to address agency priorities and to more clearly align resources with the new Strategic Plan. In September 2012, the agency prepared its FY 2014 Performance Budget, using the FY 2012 operating plan as a baseline, and timely submitted it to the Office of Management and Budget for review and consideration.

Related Program Results and Activities

SERVING THE PUBLIC MORE EFFICIENTLY

Significant Progress in Managing Charge Inventory

In FY 2012, achieved a second consecutive year of significant inventory reductions not seen since FY 2002. Due to a concerted effort, the EEOC reduced the pending inventory of private sector charges by 7,824 charges over the FY 2011 level, bringing the level to 70,312. This reduction is notable because it occurred at a time of record charge receipts and resolutions. The EEOC received 99,412 charges in FY 2012, which is steady compared with the past two record setting years, but is remarkable when considering that the last three years of receipts top the prior 47 years of the agency's history. In addition, a total of 111,139 charges were resolved, the second most in EEOC's history.

Over the past decade, the EEOC's inventory had risen significantly, with annual increases ranging from 12 - 38 percent between FY 2004 and FY 2009. In FY 2010, Chair Jacqueline Berrien initiated a multi-year approach of sustained management attention to reverse the growth of the charge inventory. As a result, the inventory growth dropped to 1 percent in FY 2010. Increased productivity of the front-line staff resulting from hires in FY 2009 and FY 2010 contributed to the progress. Continuing this comprehensive approach to charge management in FY 2012 resulted in additional benefits in productivity and customer service and yielded other significant results including the average processing time to resolve charges dropped by 17 days to 288 days. These results better position the agency for FY 2013 by improving the timeliness of charge resolution and the EEOC's customer service efforts.

 

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Improving the Private Sector Charge Process

During FY 2012, EEOC documented requirements and initiated design on two projects that leverage technology to streamline services and increase responsiveness to EEOC customers. As part of the President's Open Government initiative and the Strategic Plan for Fiscal Years 2012-2016, the agency is implementing a charge processing milestone project to provide parties with an on-line tool for determining the status of their charge, while reducing the number of calls and related administrative/investigative time spent on responding to these types of calls and emails. Additionally, the agency, through an intake technology streamlining plan, is working to create a comprehensive web interface that will aid both investigators and prospective charging parties, as well as improve the process from the first public contact with the agency through the formalization of a charge. This will include on-line scheduling of appointments for intake interviews via on-site meetings, web cams, and teleconference.

Mediation Program is a Win for both Employees and Employers

The EEOC's mediation program has continued to be a very successful part of our enforcement operations. In FY 2012, the EEOC's private sector national mediation program secured a total of 8,714 mediated resolutions out of a total of 11,380 conducted. The EEOC obtained more than $153.2 million in monetary benefits for complainants through mediation resolutions, which was the second highest level in the agency's mediation program's history.

Participants almost uniformly view the mediation program favorably, with 97.7 percent reporting confidence in the program this year. As a result, the agency continues to focus efforts on increasing the use of the program, where appropriate and consistent with the agency's mission. The agency encourages the employer community to enter into Universal Agreements to Mediate (UAMs). These agreements reflect employers' commitment to participate in mediation. At the conclusion of FY 2012, the agency had secured a cumulative multi-year total of 2,140 UAMs, which is a 7.1 percent increase from FY 2011.

Effectively Adjudicating Federal Sector Hearings and Appeals

In the federal sector, the Commission has authority to hold hearings on complaints of discrimination by federal employees and applicants, and to adjudicate appeals of decisions on such claims. In FY 2012, the EEOC secured more than $61.9 million in relief for federal employees and applicants who requested hearings. Additionally, the Commission's hearings program resolved a total of 7,538 complaints, and the number of requests for hearings on federal sector complaints slightly decreased to 7,728 in FY 2012 compared to 8,113 in FY 2011.

The EEOC has launched its efforts to develop a new case management system for federal sector cases as required by Performance Measure 3 of the Strategic Plan. The Federal Sector Strategic Planning Group (FSSPG), comprised of field and headquarters staff from both the Hearings and Appeals functions, has been formed and began its project by surveying current administrative judges and appellate attorneys. These responses were used as the foundation for the development of an initial draft of a case management process. The activity on this project in FY 2012 has EEOC well-positioned to implement a case management plan in FY 2013 as called for by the Commission's Strategic Plan.

The Commission also adjudicates appeals of federal agency actions on discrimination complaints, and ensures agency compliance with decisions issued on those appeals. During FY 2012, the EEOC received 4,350 appeals of final agency actions in the federal sector, a 16.0 percent decrease from the 5,176 such appeals received in FY 2011, which offsets the 13.8 percent increase that occurred between FY 2010 and FY 2011. FY 2012 was the first full year in which the EEOC applied a more balanced approach to the resolution of the newest and oldest appeals. The agency resolved 4,265 appeals, including 52.9 percent of them within 180 days of their receipt. In addition, the Commission resolved 2,103 or 75.9 percent of 2,768 appeals that were already, or would become, 500 or more days old by the end of the fiscal year. As a result of these efforts, the EEOC reduced the average processing time for all resolutions from 378 days in FY 2011, to 361 days in FY 2012 - a 4.5 percent decrease. The agency achieved these results by leveraging technology and successfully managing the appellate inventory.

The EEOC continued its focus on expanding the use of technology to make the federal hearings and appeals process faster and more effective. During FY 2012, the agency deployed the EEOC File Exchange (EFX) system to all remaining EEOC Hearings Units not already piloting EFX in FY 2011 and Appeals functions and made EFX access available to all federal agencies. The EFX is designed to allow federal agencies the ability to securely submit electronic reports of investigation, complaint files, and other documents to the EEOC in support of the federal hearings and appellate processes. This system is now available to all federal agencies for their use in transmitting documents electronically to the EEOC. Currently, there are 21 parent agencies and 47 sub-agencies utilizing EFX for electronic document submission and receipt. Additional parent agencies and sub-agencies are continually being added thereby expanding the number of users of EFX government-wide. The EEOC additionally documented requirements and is preparing to expand the system to allow federal complainants, and their representatives, to file a request for hearings/appeal and to also electronically transmit and receive documentation with EEOC.

ENFORCING THE LAW MORE EFFECTIVELY

Historic Monetary Recovery through Administrative Enforcement

In FY 2012, the EEOC secured more than $365.4 million in monetary benefits through its private sector administrative enforcement activities, the highest level of monetary relief ever obtained by the Commission. Overall, the agency secured both monetary and non-monetary benefits for more than 23,446 people through administrative enforcement activities - mediation, settlements, conciliations, and withdrawals with benefits. Of particular note was the increased number of charges resolved through successful conciliations, with 1,591 in FY 2012 compared with 1,351 in FY 2011, an 18 percent increase. The increase in conciliations reflects an emphasis on even closer consultation between the Commission's investigators and attorneys.

Challenging Discrimination in Federal Court

In FY 2012, the EEOC field legal units filed 122 merits lawsuits including 86 individual suits, 26 multiple-victim suits (with fewer than 20 victims) and 10 systemic suits. "Merits" lawsuits include direct suits and interventions alleging violations of the substantive provisions of the statutes enforced by the Commission and suits to enforce administrative settlements. Of these new filings, 66 contained Title VII claims, 45 contained Americans with Disability Act (ADA) claims, 12 contained Age Discrimination in Employment Act (ADEA) claims, and 2 contained Equal Pay Act (EPA) claims. It should be noted, however, that the total number of merits lawsuits is less than the sum of the suits based on each individual statute because some suits are filed under multiple statutes. The Commission also filed 33 subpoena enforcement and other actions.

While the number above represent suit filings in FY 2012, the EEOC's legal staff resolved 254 merits lawsuits for a total monetary recovery of $44.2 million. Of these resolutions, 162 contained Title VII claims, 72 contained ADA claims, 30 contained ADEA and two contained EPA claims. The Commission also resolved 29 subpoena enforcement and other actions during the fiscal year. In terms of dollars recovered in direct and intervention lawsuits by statute, the EEOC recovered $34.3 million in Title VII resolutions, $3.6 million in ADEA resolutions, $5.4 million in ADA resolutions, and $942,000 in resolutions involving more than one statute. At the end of FY 2012, the EEOC had 309 cases on its active docket, of which 75 (24 percent) involved multiple aggrieved parties (but fewer than 20) and 62 (20 percent) involved challenges to systemic discrimination.

Maximizing Impact through Systemic Enforcement

As the nation's leading law enforcer of federal laws prohibiting employment discrimination, the agency places a high priority on pursuing systemic enforcement, pattern or practice, policy, and/or class investigations, and litigation where the alleged discrimination has a broad impact on an industry, profession, company, or geographic area. While systemic cases are highly complex and resource-intensive, these cases typically impact a large number of employees or job seekers directly and can benefit untold numbers of workers and employers indirectly through public awareness and changes in company policies and industry standards. As a result, in its Strategic Plan for Fiscal Years 2012-2016, the Commission reiterated the importance of systemic enforcement program as a top agency priority.

Each year since embarking on the systemic program, the Commission has increased the resources devoted to strengthening it. This includes the continued leveraging of technology to facilitate cross-district communication and sharing of information and data, including the use of the Systemic Portal - an internal EEOC systemic website - and the development of a Systemic Watch List Tool which draws data from IMS to help network all EEOC offices in looking at systemic issues and cases. The development of this Watch List meets the Strategic Objective of combating discrimination through strategic law enforcement. During FY 2012, the EEOC completed requirements and initial design for this utility. The Watch List will provide EEOC investigators and attorneys with notification when a charge or inquiry implicating specified priority basis/issues or practices is received into the inventory or when existing charges meet specified systemic criteria. As a key component of IMS, it will provide automation and integration in support of EEOC's Strategic Enforcement Plan, once adopted.

Moreover in FY 2012, the agency conducted a newly developed advanced systemic training for more than 25 percnt of its field attorneys. Within headquarters and throughout the field, the agency has deployed experts in the fields of statistics, industrial psychology and labor market economics. In addition, the EEOC expanded usage of the CaseWorks system, which provides a central shared source of litigation support tools that facilitate the collection and review of electronic discovery and enable collaboration in the development of cases for litigation. Additionally, a litigation advisory team has been tasked with providing legal advice, developing litigation strategies, and providing hands-on support in systemic lawsuits.

Systemic Investigations

In FY 2012, the EEOC resolved 240 systemic investigations, securing monetary benefits of $36.2 million for 3,813 individuals. These results were achieved through the successful conciliation of 46 investigations and pre-determination settlements in 19 investigations. There were cause findings in 94 investigations of systemic charges. Also in FY 2012, 12 new Commissioner charges were filed. Two figures stand out among these results: the monetary benefits recovered and the number of successful conciliations. The $36 million recovered in systemic resolutions this year is four times the amount recovered in FY 2011. The 46 systemic investigations resolved in conciliation in FY 2012 is nearly three times the number resolved during conciliation last year. These two figures signify a maturing of EEOC's systemic work over the past several years. Once faced with the challenge of ensuring that each District had at least one systemic investigation, now nearly every District maintains a robust systemic docket of investigations. There has been a 32 percent growth in completed systemic investigations over FY 2010 levels, which in turn have increased the pool of systemic cases that can be resolved during conciliation or litigated when those efforts are not successful.

During the year, there was a focus on promoting coordination of field activities to ensure that investigations across districts that involve common issues are handled collaboratively, bringing greater efficiencies and reinforcing the national enforcement agency model. Through a number of coordinated activities, we ensured that both field legal and enforcement staff participated in the collaborative activities, particularly cross-district partnerships for developing systemic investigations. Additionally, through strong collaboration between the enforcement and legal staff in all aspects of systemic work, there was a focused emphasis to develop a strong systemic docket throughout the year that would yield a robust pool of systemic cases for resolution in the conciliation process or litigation when conciliation efforts failed. Examples of resolutions achieved through the conciliation process include:

• A District Office achieved a voluntary resolution of an EEOC systemic investigation of 40 separate charges filed by women across a multi-state region claiming that the employer did not consider them for jobs because of their gender. The resolution covers a class of female applicants for jobs in several different states. Under the agreement the employer will provide monetary relief to a class of women who applied for the jobs at issue in the affected region.  The settlement agreement includes provisions to ensure that the employer and its contractors maintain non-discriminatory hiring practices.

• The Minneapolis Area Office successfully conciliated a case against Pepsi Beverages (Pepsi), formerly known as Pepsi Bottling Group, in which the company agreed to pay $3.13 million and provide job offers and training to resolve a charge of race discrimination. The monetary settlement will primarily be divided among black applicants for positions at Pepsi, with a portion of the sum being allocated for the administration of the claims process. Based on the investigation, the EEOC found reasonable cause to believe that the criminal background check policy formerly used by Pepsi discriminated against African-Americans in violation of Title VII. The conciliation agreement included creative and detailed provisions, such as guaranteed remedial nationwide hiring for up to 305 qualified individuals who were denied employment at Pepsi because of background checks that showed arrests pending prosecution or convictions of minor offenses unrelated to the jobs they were seeking. The agreement requires Pepsi to provide regular reports to EEOC regarding implementation of its new background check policy. The agreement also includes a public notice provision which allowed the EEOC to issue a press release and speak to the press about the conciliation which resulted in a great deal of media coverage. Conciliation of this case was particularly significant because it was one of the first cases dealing with arrest and conviction record policies, and it received significant press throughout the country.

• In an ADA leave policy case, the Chicago District conciliated a charge for over $1.6 million. Approximately 2,000 individuals were affected by the employer's nationwide policy of denying additional leave as a reasonable accommodation for a disability. The conciliation agreement included provisions requiring the employer to revise its disability leave policy at all of its facilities nationwide, post a notice for all employees, conduct ADA training for all managers, supervisors and Human Resources personnel and EEOC monitoring of any revisions or modifications of its leave policy for the term of the agreement.

• In a case involving the failure to promote on the basis of race, a charge with a home improvement store was settled for $1.09 million. The charge alleged that African-Americans were rarely promoted into assistant general manager or general store manager positions. The charge was settled with 300 individuals receiving monetary relief. In addition, the company agreed to change its human resources and promotion policies to ensure equal employment opportunity in promotion for its black employees, which will affect almost 9,000 employees. Other terms of the agreement include the company providing reports to EEOC on the review and modification of its policies, diversity training for its managers, better communication of promotional opportunities to ensure equal opportunity, review of its internal complaint procedures, reporting on complaints of race discrimination in management positions, and reporting on promotion decisions.

• In a charge that alleged a lifting test had a disparate impact on female applicants, the company, a manufacturer of heavy equipment and a holder of several Department Of Defense contracts, agreed to terms in a conciliation agreement that provided $2.23 million. The charge alleged that the company had hired few women to work in its plant after the inauguration of the heavy lifting test. In additional to the significant monetary relief, the agreement included the provision of job offers for the charging party and a class of 36. This charge also represented a collaborative effort between the EEOC and the Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) during the investigation.

• In a conciliation agreement involving a charge of discriminatory hiring under the ADEA, the case was resolved for $1.68 million. The agreement included creative and detailed hiring and recruiting policies and practices changes, including modifications to present policies and the EEOC's review of them; stopping the use of a study which advocated hiring criteria that adversely impacted those over the age of 40; reporting on the hiring of individuals over the age of 40 with specified avenues of recruitment geared towards increasing the pool of such individuals, and an agreement by the company not to rely on college recruiting.

• Based on a systemic directed charge and several individual charges, a conciliation agreement was secured involving the disparate impact of a company's layoff policy on persons 40 years of age or older. The agreement provides $1.54 million divided among 81 class members. In addition, the company agreed to adopt procedures to review selection decisions reached in future reductions-in-force and take reasonable steps to reduce as much as possible any disparate impact on workers in the protected age group. The company also agreed to provide training to salaried employees, and at the time of a group layoff or reduction-in-force, it will provide training on non-discrimination requirements and mitigation of disparate impact to all managers responsible for recommendations or decisions regarding lay-offs or reductions-in-force.

• A charge was settled for $450,000 to be paid to the charging party and a class of 81 African-Americans who, like the charging party, were denied employment due to the employer's blanket "no felony" conviction record policy. The settlement agreement also includes provisions in which any money not awarded to the charging party or the class will be donated to not-for-profit organizations that do job training and placement for individuals with conviction records.

• In an age discrimination caseagainst a major technology company, a successful conciliation of $2.39 million involving 46 harmed parties was negotiated. Significant injunctive relief was also obtained to include a complete overhaul of the employer's reduction-in-force policies and practices. Furthermore, the conciliation agreement makes provisions for the establishment of a Regional Coordinator for any large scale employment action who would perform critical evaluations to ensure that actions taken were in compliance with the ADEA and the Older Workers Benefits Protection Act (OWBPA).

Systemic Litigation

When the agency makes a finding of systemic discrimination and efforts to secure voluntary compliance fail, the agency may choose to file suit to enforce the law. In FY 2012, the Commission filed 10 systemic lawsuits. These new suits challenge a variety of types of systemic discrimination, including large scale patterns of hiring and promotion discrimination against women and African-Americans, inflexible leave policies under the ADA, discriminatory benefits policies under the ADEA, a policy that facially discriminates against pregnant employees, and a restrictive language policy that discriminates based on national origin. Systemic suits comprised eight percent of all merits filings in FY 2012. Expressed differently, 62 cases on the active docket at the end of FY 2012 were systemic cases, accounting for 20 percent of all active merits suits. This is the largest proportion of systemic suits on the Commission's active docket since we began tracking in FY 2006. Moreover, the nature of the cases on the active systemic litigation docket has been changing - the EEOC is now litigating more large scale systemic cases, particularly involving widespread harassment against vulnerable workers and pattern-or-practice hiring cases spanning large geographic regions. Based on the large volume of systemic charges currently in investigation, the quantity of systemic lawsuits and their representation on the total docket is expected to continue to steadily increase. Under the new strategic plan, the agency projects an active systemic docket of 22-24 percent of all pending lawsuits by FY 2016.

This past year, the EEOC resolved 21 systemic cases, four of which included at least 50 victims of discrimination. Below is a sampling of significant outcomes of systemic discrimination lawsuits and appeals in FY 2012:

EEOC v. Yellow Freight: This case was the largest litigation monetary recovery of FY 2012--$11 million. The EEOC alleged that the trucking giant subjected black employees at a Chicago facility to a racially hostile working environment and discriminatory terms and conditions of employment. The EEOC had evidence of multiple hangmen's nooses, racist graffiti, and harsher discipline and scrutiny of black employees. In addition, the EEOC had evidence that blacks received more difficult and time-consuming assignments. Numerous employees complained to the company, but it continually failed to take effective action to correct these problems. The suit was resolved by consent decree providing $11 million to over 300 victims. In addition, the company will retain consultants to examine its discipline and work assignment procedures and recommend changes to prevent racial disparities.

EEOC v. Henry's Turkey: The EEOC alleged that a turkey processing plant in Iowa hired a group of intellectually disabled men and then paid them lower wages than non-disabled employees for the same work. The EEOC further alleged that the company subjected the men to horrific working conditions because of their disabilities. The EEOC filed a motion for partial summary judgment on the wage claims and won. The U.S. District Court awarded $1.3 million damages on the claim, plus interest. The remaining claims are set for trial in March 2013.

EEOC v. Dura Automotive: The EEOC alleged that a manufacturer of driver control systems in Tennessee conducted illegal medical examinations of its employees and then used the information it obtained to take adverse actions against them. The suit was resolved by consent decree providing $750,000 to 27 victims. In addition, the company will be precluded from conducting random screens for prescribed drugs and taking action against employees who take prescribed medications without an individualized assessment.

EEOC v. Delano: The EEOC alleged that a hospital in California's San Joaquin Valley subjected Filipino employees to harassment, scrutiny and discipline particularly for speaking Filipino languages like Tagalog or Ilocano. The EEOC had evidence that supervisors, staff, and even volunteers were encouraged to act as vigilantes, constantly berating and reprimanding Filipino employees for speaking their native tongues, making fun of their accents, and ordering them to speak English. Some endured threats of arrest and were told to go back to the Philippines. The suit was resolved by consent decree providing $975,000 to around 70 victims. In addition, the hospital is required to develop strong protocols for handling harassment and discrimination, to adopt a language policy that complies with Title VII, and to hire an EEO monitor.

EEOC v. United Airlines: The Seventh Circuit reversed the dismissal of the Commission's ADA suit challenging the airline's policy of requiring competitive transfers rather than reassignment as a reasonable accommodation for disabled employees. The appeals court acknowledged that the district court's dismissal had been compelled by existing 7^th Circuit precedent. However, the appellate court stated, every active circuit judge agreed that the 7^th Circuit precedent should be overruled in light of intervening Supreme Court precedent. The appeals court therefore reinstated EEOC's suit and remanded it to the district court to determine whether "fact-specific considerations particular to United's employment system" would render mandatory reassignment unreasonable.

More details about the Systemic Program can be found at http://www.eeoc.gov/eeoc/task_reports/systemic.cfm.

LEADERSHIP IN FEDERAL CIVIL RIGHTS ENFORCEMENT

Leveraging Inter-Agency Relationships for Strategic Enforcement

The work of the Commission is made more efficient with interagency coordination and it has established an active and ongoing relationship with other agencies as well as the White House. The efforts allow a greater impact on many communities and issues. In FY 2012 this included the Asian American and Pacific Islander (AAPI) community (https://www.federalregister.gov/documents/2021/06/03/2021-11792/advancing-equity-justice-and-opportunity-for-asian-americans-nat), the National HIV/AIDS Strategy (www.whitehouse.gov/administration/eop/onap/nhas), the Federal Interagency Reentry Council (www.eeoc.gov/eeoc/interagency/reentry_council.cfm), the President's Interagency Task Force to Monitor and Combat Human Trafficking and Senior Policy Operating Group, and the National Equal Pay Enforcement Task Force.

The EEOC has continued to play a pivotal role in the work of the National Equal Pay Enforcement Task Force. For example, building on a training plan initiated in FY 2011, in FY 2012 the EEOC trained 1,492 enforcement personnel from federal, state, and local civil rights enforcement agencies on techniques for investigating and analyzing violations of compensation discrimination laws. This brought the total number of employees trained through this program to over 2,000. By including the Department of Labor's OFCCP and Wage and Hour Division (WHD), and the Department of Justice in the design, delivery and audience of the training, the EEOC maximized the benefit of its investment by creating connections between enforcement personnel in the three agencies and the Fair Employment Practices Agencies. The training not only improved EEOC's capacity to identify and remedy pay discrimination, but also improved the capacity of each participating agency to recognize situations in which interagency collaboration could lead to greater efficiency and improve enforcement outcomes.

This focus on interagency collaboration continues to be a driving force in outreach as well. In FY 2012, EEOC conducted over 70 free joint outreach events with National Equal Pay Enforcement Task Force member agencies, including OFCCP, WHD, the Department of Labor's Women's Bureau, and the Department of Justice, reaching over 1,700 attendees.

In accordance with the 2010 recommendations of the National Equal Pay Enforcement Task Force, in November of 2011, the EEOC and OFCCP signed a revised Memorandum of Understanding (MOU) aimed at streamlining information sharing and improving coordination. Since that time, EEOC personnel have worked diligently to implement the information sharing provision of the MOU, and to identify best practices for collaboration.

The EEOC has also continued to develop its partnership with the Department of Justice (DOJ) Civil Rights Division. This collaboration has entailed the involvement of the DOJ in the early phases of EEOC's investigations of charges of discrimination against state and local governmental employers where the DOJ has litigating authority under Title VII, the ADA and GINA, and has resulted in a number of DOJ and EEOC law suits challenging discrimination. For example, in June of 2012, the DOJ intervened in a case brought by 20 female sheriff's deputies in Akron, Ohio, upon EEOC's referral of the charges to it. EEOC and DOJ also joined forces to bring suit against the Texas Department of Rural Affairs, the Texas Department of Agriculture, and the Texas General Land Office to contest wage discrimination against female employees on the basis of sex, in a series of cases filed in FY 2011 and 2012.

Providing Clarity through Regulations, Enforcement Guidance and Technical Assistance

Issuing regulations and guidance is at the heart of the Commission's role of leading the enforcement of federal employment anti-discrimination laws. Regulations and guidance inform individuals and employers of their legal rights and responsibilities, aid EEOC employees in conducting their work, and serve as references for the courts when resolving novel legal issues. In FY 2012, the agency issued the following regulations or guidance on substantive issues:

• Final Rule on Disparate Impact and Reasonable Factors Other Than Age (RFOA) Under the Age Discrimination in Employment Act (ADEA). The Commission issued its final regulation about ADEA disparate impact liability and the RFOA defense on March 30, 2012, after considering two sets of public comments.. The regulation incorporates principles from Supreme Court decisions concerning the RFOA - Smith v. City of Jackson and Meacham v. Knolls Atomic Power Laboratory - to make clear that the employer bears the burden of proving the RFOA defense, and that it only applies to claims of disparate impact, i.e., to challenges alleging that facially neutral policies or practices have an adverse effect on older workers. It also clarifies the RFOA standard by providing a non-exhaustive list of considerations relevant to deciding whether the employer has satisfied the defense.

  To help the public better understand this document, the Commission also issued a technical assistance document, Questions and Answers on EEOC Final Rule on Disparate Impact and "Reasonable Factor Other Than Age" (RFOA) Under the Age Discrimination in Employment Act of 1967. Both the final rule and technical assistance document can be found on our website at http://www.eeoc.gov/laws/regulations/index.cfm.

• Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. This Enforcement Guidance, which concerns the discriminatory use of criminal records in making employment decisions, was approved and issued by the Commission on April 25, 2012. It consolidates and updates several EEOC policy documents, or portions thereof. Prior to voting to approve this guidance, the Commission held two public hearings and reviewed approximately 300 written comments. The consolidated Enforcement Guidance reiterates the Commission's basic, longstanding positions, while providing greater detail on disparate impact analysis and the related employer defense of "job related and consistent with business necessity, as applied to criminal records screening." The Commission also gave significantly more emphasis to situations where employers treat individuals with the same qualifications and criminal records differently because of their race, national origin, sex, or another Title VII-protected basis. Finally, the Commission identified best practices for employers to follow in order to avoid discrimination when screening for certain criminal records.

  To help the public better understand the Commission's updated Enforcement Guidance, the Commission issued a technical assistance document, Questions and Answers About the EEOC's Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions. Both documents are available on EEOC's website; the Enforcement Guidance may be found at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm, and the Q&A is accessible from http://www.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm.

EEOC Regulations also govern the procedures for how complaints are filed and processed within the EEOC, and how the EEOC otherwise conducts many of its activities. These regulations play the important role of notifying the public of how to pursue their rights with the EEOC, and of ensuring that the agency complies with the laws applicable to government operations generally. The Commission regularly reviews its procedures to improve their efficacy and to ensure compliance with other applicable laws. In fiscal year 2012, the Commission took the following regulatory actions on procedural issues:

• Final Rule on Federal Sector Equal Employment Opportunity. In response to recommendations from the Commission's Federal Sector Workgroup, the Commission changed select parts of its procedures for processing equal employment opportunity (EEO) complaints from federal employees, former employees, and applicants. These revisions were finalized after federal agencies and the public were given an opportunity to comment on a notice of proposed rulemaking. The final rule reaffirmed agency obligations to follow EEOC regulations, Management Directives, and Bulletins; enhanced the overall efficiency and fairness of the administrative process for federal employee EEO complaints; and permitted agencies to develop pilot projects for processing their EEO complaints. The final rule represents the Commission's initial step in its ongoing review of the federal sector EEO complaint process in order to improve quality and efficiency.

  The Commission issued technical assistance to help relevant stakeholders understand the changes to federal sector EEO complaint processing. The final rule, along with the technical assistance document - Questions and Answers on EEOC's Final Rule Implementing Revisions on 29 CFR Part 1614 - is available on the EEOC's website at http://www.eeoc.gov/laws/regulations/index.cfm.

• Notice of Proposed Rulemaking on Availability of Records. The EEOC must disclose information to the public consistent with the Freedom of Information Act (FOIA). The Commission proposes to update its FOIA regulation to improve EEOC efficiency, reduce delays for the public, conform the regulation to the 2007 FOIA amendments, and exercise an option under the Electronic FOIA Amendments of 1996 (multi-tracking). For example, the proposed FOIA regulation would replace the EEOC's first in/first out FOIA process with a more efficient system that categorizes requests at the outset as simple, complex, or expedited, and then moves the requests on different tracks. The updated regulation also would require FOIA requestors seeking disclosure of an EEOC charge files to submit the court complaint showing that a lawsuit was filed on the issues investigated in the EEOC charge. This establishes that disclosure of the charge file is permissible, subject to the pertinent FOIA exemptions. The EEOC published the proposed FOIA regulation on September 4, 2012, and the public comment period ended on November 4, 2012. A copy of the proposed rule is available on EEOC's website at http://www.eeoc.gov/laws/regulations/index.cfm.

Providing Strong Leadership and Oversight for Federal Agencies

The EEOC provides leadership and guidance to federal agencies on all aspects of the federal government's equal employment opportunity program. The Commission assures federal agency and department compliance with EEOC federal sector regulations, provides technical assistance to federal agencies concerning EEO complaint adjudication, monitors and evaluates federal agencies' affirmative employment programs, and develops and distributes federal sector educational materials and conducts training for stakeholders.

EEOC's Management Directive 715 (MD-715) identifies "Essential Elements" for structuring model EEO programs. Attaining a model EEO program provides an agency with the necessary foundation for achieving a discrimination-free work environment. The six essential elements for maintaining model Title VII and Rehabilitation Act programs are: (1) demonstrated commitment from agency leadership; (2) integration of EEO into the agency's strategic mission; (3) management and program accountability; (4) proactive prevention of unlawful discrimination; (5) efficiency; and (6) responsiveness and legal compliance.

A discrimination-free work environment, characterized by an atmosphere of inclusion and free and open competition for employment opportunities, is the ultimate goal of MD-715 and the federal government. MD-715 provides a roadmap for creating effective EEO programs for all federal employees as required by Title VII and Section 501 of the Rehabilitation Act of 1973, which prohibits disability discrimination in the federal sector.

To assist agencies in reporting under MD-715, the EEOC provides tools and assistance to agencies to help them analyze their work forces and uncover barriers to equal employment opportunities. Once barriers are identified by agencies, Commission staff collaborates with them to develop creative strategies to eliminate or reduce the impact of identified obstacles. Further, the EEOC works with agencies to promote workplace policies and practices that foster an inclusive work culture and prevent employment discrimination. This effort includes working with federal agencies to adopt and successfully implement the attributes of the EEOC's Model EEO Program.

In FY 2012, EEOC deployed the Federal Sector EEO Portal (FedSEP) to all federal agencies to provide electronic submission and collection of Federal Agency EEO Program Reporting (MD-715) data. FedSEP is a multi-year initiative for capturing and storing the data used by EEOC for analyzing the workforce composition of federal agencies and trends within the federal workforce. It will allow EEOC to better identify potential discriminatory policies or practices within federal agencies to establish priorities and issue/monitor compliance plans to address the areas of concern. During FY 2013, EEOC will expand FedSEP to include submission and integrated analysis for the Annual Federal Equal Employment Opportunity Statistical Report of Discrimination Complaints (EEOC Form 462) data. Using an integrated web-based data collection system will benefit EEOC by reducing costs, increasing data accuracy, and improving the analysis of data.

The Strategic Plan for Fiscal Years 2012-2016 calls for the integration and coordination of the federal sector adjudicatory and oversight functions, resulting in an integrated data system that will allow information gathered in the adjudicatory process to support and enhance the Federal Sector Programs's (FSP) oversight and evaluation activities. To that end, in FY 2012, EEOC began developing FedSEP to capture MD-715 data, Form 462 data, and complaint data. Once FedSEP is fully operational in December 2012, EEOC will utilize business intelligence software to analyze for trends in particular agencies and across the government.

EEOC staff analyzes and assesses federal agencies' annual submission of MD-715 reports to ascertain agencies' progress in creating model EEO programs. EEOC provides oversight to over 200 federal agencies and their subcomponents. To facilitate this oversight responsibility, EEOC conducts in-person and telephonic remote assistance meetings with the responsible agency employees, as well as provides multi-year trend analysis feedback letters to the agencies.

The EEOC's success in its oversight role comes not from the mere exercise of collecting data; it comes from what EEOC and the agencies do with that data. Agencies have the responsibility to identify those red flags that are discovered in the MD-715 data and conduct investigations of the anomalies generated by workplace policies, procedures, and practices with an eye toward eliminating barriers to equal employment. If an agency finds a barrier, it has a responsibility to eliminate it. Similarly, EEOC, as the oversight agency, has the ongoing responsibility to provide the technical assistance necessary to accomplish this enormously important task.

The EEOC has provided feedback to agencies on their MD-715 submissions via various means, including technical assistance visits, one-year feedback letters, and three-year trend analysis letters. In response to comments from federal agency stakeholders, the Commission continues to provide feedback letters to agencies on a rotating basis. This feedback is designed to provide comprehensive analysis that tracks the agency's progress toward establishing a model EEO program.

During FY 2012, Office of Federal Operations (OFO) conducted 79 detailed technical assistance meetings with agencies. Despite staff reductions, OFO met with the EEO staff for over 33 percent of all agencies. OFO issued 25 trend analysis letters to federal agencies in FY 2012. Based on lessons learned over the previous five years, in FY 2012 FSP undertook a program to bolster its technical assistance effort with a plan to increase technical assistance contacts with agency EEO offices and provide structured in-person visits.

EXTENDING THE REACH OF THE AGENCY

Agency Outreach Continues to Reach Diverse Audiences

In keeping with the Strategic Plan's prioritization of outreach and education, in FY 2012, the Commission's outreach, education and technical assistance efforts focused on increasing voluntary compliance with federal equal employment laws and on improving employee and employer awareness of rights and responsibilities under federal employment discrimination laws, especially amongst underserved groups and in underserved areas.

The agency's no-cost outreach programs reached 318,838 persons in FY 2012. EEOC offices participated in 3,992 no-cost educational, training, and outreach events. Additionally, in FY 2012, the Training Institute trained 23,119 individuals at 473 events, including 417 field Customer Specific Training events with 16,932 attendees.

Specific outreach events included 1,884 oral presentations, 268 training sessions and 292 stakeholder input meetings. These three major types of educational events reached 161,958 people. Offices represented the Commission at 687 public events that reached 72,319 people. These events included information meetings with community organizations and professional associations. Through participation in job fairs, ethnic and cultural festivals, expositions and conventions, Commission personnel distributed informational materials to 49,043 people. Commission employees also made 386 media presentations, including newspaper, radio and TV interviews, talk shows, and press conferences that provided substantive equal employment opportunity information to millions of stakeholders.

Small Business Outreach. The Commission worked collaboratively with the small business community to prevent employment discrimination and promote voluntary compliance. EEOC offices conducted 577 no-cost outreach events directed toward small businesses in FY 2012, reaching 62,738 small business representatives. The most popular topics for small business audiences were an overview of the laws enforced by EEOC, charge processing procedures, sexual harassment, Title VII and the ADA. In addition, some small businesses took advantage of training offered by the Training Institute with 98 events reaching 4,654 small business representatives.

Outreach to Vulnerable/Underserved Workers and Areas. In FY 2012, the Commission conducted events geared toward reaching vulnerable/underserved workers and underserved areas. The Commission reached 144,141 people by conducting a total of 2,108 events. Commission staff members traveled to states and communities where no EEOC office is located or where certain communities are reluctant to come forward to complain of employment discrimination, and partnered with local community organizations, consulates and other entities to reach these workers. For example, 254 events, reaching 17,709 individuals, were targeted to migrant farm worker communities and their advocates to provide education and information about discrimination. The were 193 events focused on human trafficking issues, working with community-based organizations devoted to trafficking issues, and reaching 10,622 people. In addition, 347 events, reaching 29,338 people, focused on the issue of the use of arrest and conviction records in employment, raising awareness about the impact on those who are trying to re-enter the workforce and become productive citizens. Finally, the Commission also provided over 150 off-site intake and counseling services in neighborhoods where persons with limited English proficiency may be less likely to come to Commission offices.

Equal Pay Outreach. In FY 2012, continuing efforts from the prior year, the Commission conducted 422 total events that included education on the issue of equal pay in the workplace, reaching 27, 852 individuals in these efforts.

Outreach to Asian American and Pacific Islander Communities. As part of the White House Initiative, the Commission improved its communications and partnerships with the AAPI community. In FY 2012, the Commission conducted 197 events, reaching 24,414 people, to raise awareness about the EEOC and the laws we enforce. The EEOC partnered with several organizations across the country that represent the AAPI communities. The events included ethnic media interviews, presentations at community gatherings and cultural fairs and celebrations, staffing informational booths, stakeholder input meetings, training, information dissemination in several languages that educate the AAPI community about employment discrimination laws and expanded presence sessions where Commission personnel conducted off-site intake and counseling. Examples of these events and partnerships include:

• The Festival of Asian Cultures in Albuquerque, New Mexico; the QARI Chinese Celebration in Boston, Massachusetts; the Thai Festival in Los Angeles, California; the Philippine Cultural Foundation Festival in Tampa, Florida; the Vietnamese Tet Festival in Orange County, California and Asian Heritage Festivals in Cleveland, Ohio, Indianapolis, Indiana, New Orleans, Louisiana and Fairfax and Falls Church, Virginia.

• EEOC staff developed or strengthen significant partnerships with AAPI community organizations, through training (e.g., for the Sikh American Legal Defense and Education Fund in Los Angeles and San Francisco), new relationships (Mississippi Immigrants Rights Alliance and the Catholic Charities Migration Refugee Center); and stakeholder meetings (Asian American Association of New Mexico, Asian American Resource Center in Little Rock, the Asian American Group of Las Vegas, the Asian Pacific American Legal Center in Los Angeles, Asian Americans for Community Involvement and Silicon Valley Asian American Voices project in San Jose and the South Asian Americans Leading Together (SAALT) in Philadelphia.

• Given the ethnic, cultural and religious diversity of the AAPI communities, many outreach events that cover particular issues such as immigrant worker rights and human trafficking, also reach members of the AAPI community. For example, two managers from our Little Rock office presented at the Second Annual Immigrant Victims of Domestic Violence and Human Trafficking Conference.

In addition to outreach to individual members of the AAPI communities and organizations that represent them, the agency also conducted outreach to the AAPI business community. For example, staff met with, provided training for or developed partnerships with employer groups such as the Carolinas Asian American Chamber of Commerce, Las Vegas Asian Chamber of Commerce, a group of Thai small business owners in conjunction with the Thai Community Development Center in Los Angeles, the Asian Chamber of Commerce in Phoenix and a small Japanese owned technology company in Atlanta.

Providing Employers and Employees with Education and Technical Assistance

The EEOC Training Institute is managed under a separate statutory authority that enables the Commission to offer in-depth and specialized programs on a fee basis, supplementing the free general informational and outreach activities that are an on-going aspect of the agency's mission. The Training Institute offers diverse, high quality, reasonably priced EEO expertise and training products to private sector employers, state and local government personnel, and employees of federal agencies. In FY 2012, the Institute trained over 20,000 individuals at more than 430 events, generating about $3.4 million in revenue. This enabled the Institute to remain self-sustaining for another year, and allowed for the reimbursement of $2.3 million to the Commission for indirect costs associated with its operations, including 100 percent of Training Institute staff and portions of field and headquarters staff performing dedicated activities for the Institute. The Institute offered the following products/service lines:

Technical Assistance Program Seminars (TAPS). The one- and two-day TAP Seminars offered by the Training Institute are responsive to employers' information and training needs and allow EEOC to educate employers and employees about how to identify, prevent and eliminate workplace discrimination. In FY 2012, 38 TAPS were conducted throughout the country with nearly 5,400 participants. Throughout FY 2012, TAPs continued to receive excellent evaluations. Over 90 percent of the attendees at multi-issue TAPs rated the event as "above average" or "outstanding."

National Federal Sector Conference. An annual national federal sector conference, the Examining Conflicts in Employment Laws (EXCEL) Conference, has become a widely anticipated and highly acclaimed event for federal EEO managers, attorneys, union officials, and other EEO professionals. This year's conference marked the 15^th anniversary of this event and attracted more than 400 attendees. The conference included three plenary sessions and more than fifty open workshops. In addition to the general plenary and workshops, there was a preconference session for new investigators and counselors attended by more than 80 individuals and three separate closed tracks covering Basic Mediation, Advanced Mediation and Hearings Preparation.

Customer Specific Training. The Customer Specific Training (CST) program trains employees, managers, supervisors and human resource professionals from large, mid-size and small employers on their EEO responsibilities and how to prevent and correct workplace discrimination. Standardized courses are available, or the Institute can design customized courses to be delivered at employers' worksites. In FY 2012, the Training Institute held 400 field CST events that reached approximately 14,000 attendees.

Webinars. In an effort to bridge the Institute's training offerings with technology developments, the Institute once again offered webinars as part of its product line. During FY 2011, the Institute presented six webinars covering harassment, GINA, ADAAA regulations and social networking. These sessions reached over 1,100 sites.

Federal Courses and CSTs. In addition to the EXCEL conference, 42 courses covering skills training for federal investigators, mediators and counselors were presented and funded through the Training Institute. There were more than 800 attendees this year for the federal courses offered around the country and in Washington, DC. There were also about 85 federal CSTs conducted during FY 2012.

IMPROVED LABOR MANAGEMENT RELATIONS

Pursuant to the President's Executive Order (EO) 13522: "Creating Labor-Management Forums to Improve Delivery of Government Services," the EEOC established a National Joint Labor Management Council (JLMC) in addition to District Joint Labor Management Councils in each of its 15 Districts, one in the Washington Field Office, and one in Headquarters. In 2010, the National JLMC established metrics to measure goal-related activities associated with implementing the EO. Each metric included an established baseline by which to measure successes. These three principle metrics were "Improve Mission and Service Delivery," "Employee Satisfaction and Engagement" and "Improved Labor-Management Relations."

The JLMC's most recent report to the Office of Personnel Management indicates that the agency has experienced improvements in each of these areas. For example, the baseline for the metric "Improved Mission and Service and Delivery" was established to demonstrate the agency's efforts to reduce its backlog. The agency reduced its private sector backlog by 9.6 percent - well over the 2 percent that had been projected. In comparison, our backlog in the federal sector increased by 15 percent, rather than resulting in the projected 2 percent reduction.

Labor relations have continued to improve over previous years. Whereas,,the union would typically file at least twenty to thirty unfair labor practices (ULP's) yearly, in the past two years, there were seven ULP's filed in 2012 and four in 2011. The agency also was able to reach an agreement over a new Collective Bargaining Agreement in only a four week period. The parties' win-win approach to negotiations served the interests of both. Specifically, while the agency was interested in controlling official time, the union had an interest in trying maxiflex, a type of flexible work schedule that permits employees to vary the number of core hours worked on a given workday or the number of hours each week within an 80 hour biweekly pay period, on a trial basis. The parties agreed to procedures for both maxiflex and official time.

Improving Federal Employees' Viewpoint Survey Results

The FY 2012 results show that EEOC employees continue to like the kind of work they do, believe their work is important, are willing to give extra effort to get a job done and, are looking for ways to do their jobs better. In fact, employees rate the overall quality of work done in their work unit above 80 percent. Employees also say they are held accountable for achieving results and know how their work relates to agency goals. Supervisors/Team Leaders talk with their employees about their performance and treat them with respect.

In FY 2011, EEOC employees expressed several concerns about their workplace and the agency responded by launching the "BEST" Initiative. BEST, an acronym for Building Employee Satisfaction Together focuses on employee satisfaction and implements a strategy for improving satisfaction by creating opportunities for employee involvement to resolve workplace issues. BEST began its journey by starting with three areas of focus: reprisal, workplace health and safety, and skill development and workload management.

The FY 2012 results reveal there is more work to do in the three areas of focus The agency is making progress. For example, EEOC comparisons show an increase in positive percentage points for four out of these six items since last year. Since FY 2011, positive percentage points increased by a notable six percentage points for "prepared employees for potential security threats," three points each for "fear of reprisal and arbitrary action" and two points for "reasonable workload." Government-wide comparisons, or a comparison of fiscal years 2011 and 2012 ratings for EEOC items that trail government-wide averages, reveals that gaps are closing in these areas as well. Last year, EEOC's positive percentage points for "fear of reprisal" trailed government-wide averages by 14 points compared to 9 points this year. Similarly, percentage points for "arbitrary action" lagged government-wide averages by 9 points last year but only by 5 points this year. EEOC's positive percentage points for "prepared employees for potential security threats" lagged this year only by 4 points when last year it lagged by 10. Even these small differences are significant when analyzing results for improvement.

Implementing Hiring Reform

The agency hoped to be able to fill positions left open by attrition in FY 2011. However, a hiring freeze was imposed effective January 3, 2011. The freeze meant that virtually no hires were made in FY 2012; indeed, only 11 employees were hired in FY 2012. By comparison, 93 employees were hired in FY 2011.

Pursuant to initiatives from the Office of Personnel Management and the Office of Management and Budget, EEOC's Office of Human Resources worked with agency hiring managers and senior officials to develop a new hiring reform action plan designed to improve the agency's hiring process. The goal continues to be hiring new employees within 78 calendar days. In FY 2012, the agency increased its baseline of 25 percent of hires completed in 78 day by 20 percent. Forty-five percent of hires were made in or less than 78 calendar days. The improved tracking system allowed EEOC to quickly identify barriers, such as delays in announcing positions due to inaccurate or incomplete crediting plans; delays in interviewing and selecting, extensions of time to select from a certificate, and allow for adjustments to ensure continued work towards the goal.

Program Evaluations

Program evaluation is an important component of EEOC's effort to assure that its programs are operating as intended and achieving results. A program evaluation is a thorough examination of program design and/or operational effectiveness that uses rigorous methodologies and statistical and analytical tools. Evaluations also use expertise internal and external to the agency and the program under review to enhance the analytical perspectives and lend credence to the methodologies employed, the evaluation processes and findings, and any subsequent recommendations.

Independent program evaluations continue to play an important role in formulating the strategic objectives and performance goals detailed in EEOC's new FY 2012-2016 Strategic Plan and helped shape some of the program issues and key focus areas for improvement. They are an invaluable management tool to guide the agency's strategic efforts in attaining overall productivity and program efficiency, effectiveness, and accountability. To that end, EEOC has undertaken the following program evaluations to advance its performance-based management initiatives under the Government Performance and Results Modernization Act (GPRAMA) of 2010, and to improve the effectiveness of key agency programs.

Collecting Compensation Data from Employers; Panel on Measuring and Collecting Pay Information from U.S. Employers by Gender, Race, and National Origin, National Research Council of the National Academies, August 2012.

Evaluation of the Management of the EEOC's State and Local Programs, Equal Employment Opportunity Commission, Office of Inspector General, Williams, Adley & Company-DC, LLP, March 2011.

U.S. Equal Employment Opportunity Commission Evaluation of the Priority Charge Handling Procedures Report, Federal Consulting Group (FCG), December 2010.

Consistent with the Administration's focus on improving the effectiveness of government through rigorous evaluation and evidence-based policy initiatives, the EEOC will continue to consider appropriate program areas for evaluation each year. This will ensure that the agency's efforts align with EEOC's budget and other programmatic priorities.

VERIFICATION AND VALIDATION OF DATA

Our private sector, federal sector, and litigation programs require accurate enforcement data, as well as reliable financial and human resources information, to assess EEOC operations and performance results and make good management decisions. The agency will continue efforts to ensure the accuracy of program information and any analysis of the information.

The Commission continually reviews the information collected in its databases for accuracy by using software editing programs and program reviews of a sample of records during field office technical assistance visits. In addition, headquarters offices regularly conduct analyses to review the information collected in order to identify any anomalies that indicate erroneous entries requiring correction to collection procedures. In July 2012, the agency expanded the formats that respondents can use when uploading their EEO-1 data so that more firms can use this option for filing. This should help increase the accuracy of the data provided as manual data entry in the online system will be eliminated.

The EEOC also monitors internal mechanisms for improving the validity and reliability of the EEO-1 data. For example, a 2012 security audit for the host facility was implemented to make certain that the data was secure and accessible. Greater use of the EEO-1 by field staff continues to assist in identifying non-filers, which has enabled the agency to collect information more rapidly and completely. In addition, EEOC has now implemented two secure, web-based systems that enable all federal agencies to electronically submit annual equal employment opportunity statistics (Form 462 and MD-715). These systems continue to improve the quality and timeliness of the information received. Finally, the collection and validation of information for the Integrated Mission System (IMS), is continually approved, which consolidates mission data on charge intake, investigation, mediation, litigation, and outreach functions into a single shared information system. IMS includes many automated edit checks and rules to enhance data integrity. Since several performance measures require use of data to assess achievements, it is significant that this data can now be obtained much more quickly and with greater data accuracy.

The EEOC's Office of Inspector General continues to review aspects of the status of the agency's data validity and verification procedures, information systems, and databases and offer recommendations for improvements in its reports. This information and recommendations are used to continually improve Commission systems and data.