Annual Report on the Federal Work Force Fiscal Year 2008

The U.S. Equal Employment Opportunity Commission

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Table of Contents

PREFACE

EXECUTIVE SUMMARY

PART I SUMMARY OF EEO STATISTICS IN THE FEDERAL GOVERNMENT

PART II PROFILES FOR SELECTED FEDERAL AGENCIES

APPENDIX I  GLOSSARY / DEFINITIONS

APPENDIX II FEDERAL SECTOR EEO COMPLAINT PROCESSING PROCEDURES

APPENDIX III FEDERAL WORK FORCE & COMPLAINTS PROCESSING TABLES

PREFACE

The U.S. Equal Employment Opportunity Commission (EEOC or Commission) was established by the Civil Rights Act of 1964, Title VII, with the mission of eradicating discrimination in the workplace. In the federal sector, EEOC enforces Title VII, which prohibits employment discrimination on the basis of race, color, religion, sex, and national origin; the Age Discrimination in Employment Act of 1967 (ADEA), which prohibits employment discrimination against individuals 40 years of age and older; the Equal Pay Act of 1963 (EPA), which prohibits discrimination on the basis of gender in compensation for substantially similar work under similar conditions; and the Rehabilitation Act of 1973 (Rehabilitation Act), which prohibits employment discrimination against federal employees and applicants with disabilities, and requires that reasonable accommodations be provided.

EEOC is charged with monitoring federal agency compliance with equal employment opportunity (EEO) laws and procedures and reviewing and assessing the effect of agencies' compliance with requirements to maintain continuing affirmative employment programs to promote equal employment opportunity and to identify and eliminate barriers to equality of employment opportunity.

Equal Employment Opportunity Management Directive 715 (MD-715), issued October 1, 2003, established standards for ensuring that agencies develop and maintain model EEO programs. These standards are used to measure and report on the status of the federal government's efforts to become a model employer. As detailed in MD-715, the six elements of a model EEO program are:

• Demonstrated commitment from agency leadership,
• Integration of EEO into the agency's strategic mission,
• Management and program accountability,
• Proactive prevention of unlawful discrimination,
• Efficiency, and
• Responsiveness and legal compliance.

This report covers the period from October 1, 2007, through September 30, 2008 and contains selected measures of agencies' progress toward model EEO programs.¹ Working within our mission as an oversight agency, EEOC strives to create a partnership with agencies. In FY 2008, EEOC's Relationship Management program comprised 10 Cabinet/Mid-Size agencies and continued its small agency program with 14 agencies.

The FY 2008 Annual Report on the Federal Work Force, submitted to the President and Congress, presents a summary of selected EEO program activities in the federal government, including work force profiles of 59 federal agencies. The report provides valuable information to all agencies as they strive to become model employers.

To prepare this report, the Commission relied on the following data: 1) work force data, as of September 30, 2008, obtained from the U.S. Office of Personnel Management's (OPM) Central Personnel Data File (CPDF)² supplemented with data provided by the Army & Air Force Exchange Service (AAFES), Federal Energy Regulatory Commission (FERC), the Department of State, Tennessee Valley Authority (TVA) and the United States Postal Service (USPS); 2) data from the 2000 EEO Special Files; 3) EEO complaint processing data submitted and certified as accurate by 122 federal agencies in their fiscal year (FY) 2008 Federal Equal Employment Opportunity Statistical Report of Discrimination Complaints (EEO 462 reports); 4) hearings and appeals data obtained from EEOC's internal databases; and 5) EEO program data submitted and certified as accurate by 172 of 198 federal agencies and subcomponents in their FY 2007 Federal Agency Annual Equal Employment Opportunity Program Status Reports (MD-715 reports).³

Effective January 1, 2006, OPM required federal agencies to report ethnicity and race information for accessions on the revised Standard Form 181. Accordingly, the CPDF contains data on persons who are Native Hawaiian/Other Pacific Islander or who are of Two or More Races. Thus, for the third year, separate data on these groups is contained in this Report. Readers should bear in mind that in prior years, data on Asians included Native Hawaiian/Other Pacific Islander and no data was reported on persons of Two or More Races. As a result, care should be exercised when comparing current data to data from prior years.

Finally, the Commission would like to extend its thanks to: 1) OPM for providing the work force data from the CPDF; 2) AAFES, FERC, the Department of State, TVA, and USPS for providing their work force data; and 3) those agencies that timely submitted accurate and verifiable EEO complaint processing data.

This year the Commission again provided agencies an opportunity to comment on the draft of this report. The Commission thanks those agencies that submitted comments and suggestions for assisting in the publishing of a more accurate report. Agencies are encouraged to submit all Reports to the Commission in a timely and accurate manner to ensure that the state of EEO in the federal work force is reflected correctly.

EXECUTIVE SUMMARY

STATE OF EEO IN THE FEDERAL GOVERNMENT

• In FY 2008, there were almost 2.7 million women and men employed by the federal government across the country and around the world.
  • 55.9% were men and 44.1% were women; the participation rate for women has slowly but steadily increased over the last ten years.
  • 7.9% were Hispanic or Latino, 65.4% were White, 18.3% were Black or African American, 5.9% were Asian, 0.3% were Native Hawaiian/Other Pacific Islander, 1.6% were American Indian/Alaska Native, and 0.6% were persons of Two or More Races.
• Between FY 2007 and FY 2008, Hispanic or Latinos, Whites, women and persons of Two or More Races remained below their overall availability in the national civilian labor force, as reported in the 2000 census (CLF). Black or African Americans, Asians, Native Hawaiian/Other Pacific Islanders, American Indian/Alaska Natives and men remained above their overall availability in the CLF.
• The number of employees with targeted disabilities in the federal work force has been steadily declining in the past ten years, from 27,601 (1.12%) in FY 1999 to 24,427 in FY 2008. Despite a modest net gain of 434 employees in FY 2008 over FY 2007, Individuals with Targeted Disabilities still represented less than one percent (0.88%) of the total work force.
• Of the total work force, 0.74% held senior pay level positions, which is an increase from 0.65% in FY 1999. Hispanic or Latinos and women have made the most gains in securing senior level positions in the federal government, increasing their participation rates 50.92% and 49.79% respectively while Hispanic or Latinos increased their participation rates in the total work force over the ten year period by 33.17% and women by only 17.62%.
• Of the total work force, 46.97% of employees occupied General Schedule and Related pay system positions.
• The average grade for permanent and temporary General Schedule employees was 9.9; Hispanic or Latino 9.4, Black or African American 9, Native Hawaiian/Other Pacific Islander 7.9, American Indian/Alaska Native 8.4 employees and employees of Two or More Races 8.6 all had average grades lower than the government-wide average. The average grade for Asian 10.4 and Whites 10.2 exceeded the government-wide average.
• The average General Schedule grade for women remained at 9.3, more than one grade below the average grade level for men of 10.5.
• The average General Schedule grade for Individuals with Targeted Disabilities remained at 8.5, nearly one and a half grades below the government-wide average (for permanent and temporary employees) of 9.9.
• Of the total work force, 7.06% of employees occupy positions in the Federal Wage System. In comparison to the General Schedule and Related positions, the Federal Wage System had a higher percentage of men (89.10%), Hispanic or Latino men (6.92%), Black or African Americans (18.23%), Asian men (3.45%), Native Hawaiian/Other Pacific Islanders (0.68%), American Indian/Alaska Natives (2.42%) and Individuals with Targeted Disabilities (1.09%) and a lower percentage of women (10.90%).
• Of the total work force, 45.23% of employees occupied positions in Other Pay Systems (i.e. other than Senior Pay, General Schedule and Federal Wage Systems). In comparison to the General Schedule, the other pay systems had a higher percentage of Black or African Americans (18.57%), and Asians (7.20%), Native Hawaiian/Other Pacific Islanders (0.35%); and a lower percentage of Hispanic or Latinos (7.98%), Whites (64.04%), and American Indian/Alaska Natives (1.08%).
• Of the 172 agencies and subcomponents that submitted a FY 2007 MD-715 report, 59% reported that they had issued an EEO policy on an annual basis, a decrease from the 68% of the 167 agencies and subcomponents that submitted an MD-715 report in FY 2006.
• Of the 122 agencies that submitted a FY 2008 EEOC Form 462 report, 86 (68.9%) reported that the EEO Director reports directly to the agency head.
• A state of the agency briefing to the agency head, required by MD-715, was conducted by 72% of the 172 agencies and subcomponents that submitted a FY 2007 MD-715 report, up from the 63% of the 167 agencies and subcomponents that submitted a FY 2006 MD-715 report.
• Pre-complaint EEO counseling and alternative dispute resolution (ADR) programs addressed many employee concerns before they resulted in formal EEO complaints. Of the 38,898 instances of counseling in FY 2008, 55.1% did not result in a formal complaint due either to settlement by the parties or withdrawal from the EEO process.
• In FY 2008, 15,539 individuals filed 16,752 complaints alleging employment discrimination against the federal government.
• The number of complaints filed increased by 2.4% from the number filed the previous year and there was a 1.6% increase in the number of individuals who filed complaints over the same period. In FY 2008, 7.2% of the complaints filed were by individuals who had previously filed at least one other complaint during the year, a decrease from the 9.3% in FY 2007.
• A total of 11,157 investigations were completed government-wide in an average of 180 days in FY 2008. Significantly, 8,229, or 74.0%, of the investigations were timely completed, maintaining FY 2007's 74.0% timely completed rate. Without the United States Postal Service's (USPS) investigations, the government-wide average drops to 58.7%.
• Agencies issued 4,576 merit decisions without a decision by an EEOC Administrative Judge, and 2,906 (63.5%) of these decisions were timely issued, up slightly from 63.4% timely issued in FY 2007. Without the USPS' merit decisions, the government-wide average drops to 38.8%.
• EEOC's hearing receipts increased by 2.1%, from 7,869 in FY 2007 to 8,036 in FY 2008. The average processing time for a hearing was 262 days, a 5.6% increase from FY 2007's average of 248 days.
• EEOC's appeal receipts decreased by 2.75%, declining from 5,226 in FY 2007 to 5,082 in FY 2008. The average processing time for appeals in FY 2008 was 278 days, a 20.9% increase from the FY 2007 average of 230 days.
• In FY 2008, as a result of final agency decisions, settlement agreements, and final agency actions in which agencies agreed to fully implement EEOC Administrative Judges' decisions, agencies paid monetary benefits to EEO complainants totaling $41.0 million, up from the $36.4 million paid in FY 2007. An additional $12.3 million was paid out in response to appellate decisions, an increase from the $10.7 million paid out in FY 2007.
• In FY 2008, EEOC's training and outreach program reached 6,861 federal employees through 179 sessions.
• In FY 2008, EEOC Form 462 reports were timely filed by 76 or 78% of the 97 agencies (with 100 or more employees) that were required to submit an EEOC Form 462 report.
• In FY 2008, 50% or 73 of the agencies and subcomponents that submitted an MD-715 report did so by the February 2, 2009 deadline; with extensions more than twice as many agencies and subcomponents timely filed their MD-715 report than in FY 2007. Eighty point seven percent or 117 of the 145 reports submitted in FY 2008 were timely. In FY 2007, MD-715 reports were timely filed by 77 or 44.7% of the 172 reporting agencies and subcomponents down from the 50% or 84 of the 167 reporting agencies and subcomponents in FY 2006.

Part I
Summary of EEO Statistics in the Federal Government

Section A - Demonstrated Commitment From Agency Leadership

 

Now, more than ever before, with the increasing expectations of government institutions, federal agencies must position themselves to attract, develop and retain a top-quality work force in order to ensure our nation's continued growth, security and prosperity. To develop this competitive, highly qualified work force, federal agencies must fully utilize the talents of all employees, regardless of race, color, religion, national origin, sex or disability. In order to assist agencies in attaining these goals, on October 1, 2003, MD-715 became effective and set forth "policy guidance and standards for establishing and maintaining effective affirmative programs of equal employment opportunity under Section 717 of Title VII and effective affirmative action programs under Section 501 of the Rehabilitation Act."

 

MD-715 requires agency heads and other senior management officials to demonstrate a firm commitment to equality of opportunity for all employees and applicants for employment. Agencies must promote and safeguard equal employment opportunity into everyday practice and make those principles a fundamental part of agency culture. MD-715 reports are not currently submitted electronically; therefore the only FY 2008 data in this report regards timeliness of report submission. All other MD-715 data reported in this document reflect submitted FY 2007 MD-715 reports.

1. 59% of Agencies Issued EEO Policy Statements on an Annual Basis

Section II(A) of MD-715 provides that "commitment to equal employment opportunity must be embraced by agency leadership and communicated through the ranks from the top down. It is the responsibility of each agency head to take such measures as may be necessary to incorporate the principles of EEO into the agency's organizational structure." In addition, this section establishes that "agency heads must issue a written policy statement expressing their commitment to EEO and a workplace free of discriminatory harassment. This statement should be issued at the beginning of their tenure and thereafter on an annual basis and disseminated to all employees."

Figure 1 above shows that the number of agencies that issued its EEO policy statement on an annual basis increased 2 of the 4 years since MD-715 was issued. Of the 172 agencies and subcomponents that submitted an MD-715 report for FY 2007, only 101 (58.7%) reported that they had issued an EEO policy statement annually and would continue to do so, a decrease from the 68.3% of 167 agencies that submitted in FY 2006.

Section B - Integration of EEO Into Agencies' Strategic Mission

In order to achieve its strategic mission, an agency must integrate equality of opportunity into attracting, hiring, developing, and retaining the most qualified work force. The success of an agency's EEO program ultimately depends upon decisions made by individual agency managers. Therefore, agency managers constitute an integral part of the agency's EEO program. The EEO office serves as a resource to these managers by providing direction, guidance, and monitoring of key activities to achieve a diverse workplace free of barriers to equal opportunity.

As part of integrating EEO into the strategic mission, Section II(B) of MD-715 instructs agencies to ensure that: (1)  the EEO Director has access to the agency head; (2) the EEO office coordinates with Human Resources; (3) sufficient resources are allocated to the EEO program; (4) the EEO office retains a competent staff; (5) all managers receive management training; (6) all managers and employees are involved in implementing the EEO program; and (7) all employees are informed of the EEO program. Three aspects of this Section are highlighted below.

1. 65% of Agency EEO Directors Report to Agency Head

EEOC's regulations governing agency programs to promote equal employment opportunity require each agency to "maintain a continuing affirmative program to promote equal opportunity and to identify and eliminate discriminatory practices and polices." 29 C.F.R. §1614.102(a). To implement its program, each agency shall designate a Director of Equal Employment Opportunity who shall be under the immediate supervision of the agency head. 29 C.F.R. §1614.102(b)(4).

When the EEO Director is under the authority of others within the agency, the agency creates a potential conflict of interest where the person to whom the EEO Director reports is involved in or would be affected by the actions of the EEO Director. By placing the EEO Director in a direct reporting relationship to the agency head, the agency underscores the importance of EEO to the agency's mission and ensures that the EEO Director is able to act with the greatest degree of independence.

Of the 97 agencies (with 100 or more employees) that were required to submit an EEOC Form 462 report in FY 2008, 63 agencies (64.94%) reported that their EEO Director reports to the agency head, up from the (60.6%) reported in FY 2007. Figure 2 below shows a five year trend.

2. 72% of EEO Directors Presented the State of the EEO Program to the Agency Head

In addition to improving the status and independence of EEO, Section II(B) of MD-715 requires that agencies ". . . provide the EEO Director with regular access to the agency head and other senior management officials for reporting on the effectiveness, efficiency, and legal compliance . . ." of the agency's EEO program. Following each yearly submission of the MD-715 report to EEOC, EEO Directors should present the state of the EEO program to the agency head. See Section I of EEOC's Instructions for MD-715.

Of the 172 agencies and subcomponents that submitted an MD-715 report for FY 2007, 124 (72.1%) indicated that the EEO Director had conducted the briefing; up from the 63% of 105 in FY 2006.

3. 87% of Agencies Provided Their EEO Staff with Required Training

Section II(B) of MD-715 requires that agencies attract, develop and retain EEO staff with the strategic competencies necessary to accomplish the agency's EEO mission. In order to ensure staff competency within its EEO complaint program, agencies must comply with the mandatory training requirements for EEO counselors and investigators as set forth in MD-110. Agencies using contract staff to perform these functions must also ensure that these requirements are met.

Chapter 2, Section II of MD-110 requires that new EEO counselors receive thirty-two hours of EEO counselor training and thereafter eight hours of training each year. Likewise, new EEO investigators are required to have thirty-two hours of EEO investigator training and thereafter eight hours of training each year as set forth in Chapter 6, Section II of MD-110.

Of the 100 agencies with 100 or more employees that filed an EEOC Form 462 report in FY 2008, 87% ensured their EEO staff received the required regulatory training up from the 85% that reported providing the training in FY 2007. Agencies trained 1,691 new EEO counselors and 160 new EEO investigators. Agencies also provided the required eight hour annual refresher training to 3,113 EEO counselors and 1,659 EEO investigators. Additionally, agencies reported providing thirty-two hour training to 303 EEO counselor/investigators and eight hour training to 79 EEO counselor/investigators.

Section C - Management and Program Accountability

A model EEO program will hold managers, supervisors, EEO officials, and personnel officers accountable for the effective implementation and management of the agency's program. As part of management and program accountability, MD-715 provides that agencies should ensure that: (1) regular internal audits are conducted of the EEO program; (2) EEO procedures are established; (3) managers and supervisors are evaluated on EEO; (4) personnel policies are clear and consistently implemented; (5) a comprehensive anti-harassment policy has been issued; (6) an effective reasonable accommodation policy has been issued; and (7) findings of discrimination are reviewed. Two aspects of this Section are highlighted below.

1. 83% of Agencies Evaluate Managers and Supervisors on EEO

Section II(C) of MD-715 provides that a model EEO program must "evaluate managers and supervisors on efforts to ensure equality of opportunity for all employees." The success of an agency's EEO program ultimately depends on individual decisions made by its managers and supervisors. Therefore, agency managers and supervisors constitute an integral part of the agency's EEO program. As such, MD-715 makes clear that all managers and supervisors share responsibility with EEO program and human resources officials for the successful implementation of EEO programs. The EEO office serves as a resource to these managers by providing direction, guidance and monitoring of key activities to achieve a diverse workplace free of barriers to equal opportunity. In this regard, the EEO office should inform managers and supervisors that a positive evaluation will include an assessment of how that manager contributes to the agency's EEO program by emphasizing to managers and supervisors that equality of opportunity is essential to attracting, developing and retaining the most qualified workforce, with such a workforce being essential to ensuring the agency's achievement of its strategic mission.

In FY 2007, 143 (83.1%) of the 172 agencies that submitted MD-715 reports indicated that its managers and supervisors were rated on their commitment to EEO, up from the 117 (70%) of the 167 agencies that submitted MD-715 reports in FY 2006.

2. 72% of Agencies Report They Have A Written Anti-Harassment Policy

Sections II(A) and (C) of EEOC's MD-715 provide that model EEO programs should "issue a written policy statement expressing their commitment to . . . a workplace free of discriminatory harassment" and "establish procedures to prevent . . . harassment."⁴ In order to ensure that the agency's anti-harassment policy is enforced, Section II(C) requires agencies to establish procedures to prevent harassment and to take immediate corrective action if harassment is found. These procedures are separate from the federal sector administrative EEO complaint process.

EEOC's Enforcement Guidance on Harassment makes clear that agencies can be held liable for harassment based on race, color, sex, religion, national origin, protected activity, age (40 and over), or disability, and not merely for harassment that is of a sexual nature. Accordingly, the policy guidance emphasizes that agencies should establish written anti-harassment policies and complaint procedures covering unlawful harassment on all bases.

In FY 2007, 124 (72.1%) of the 172 agencies and subcomponents that submitted MD-715 reports reported they had a written anti-harassment policy, up from the 96 (57.5%) of the 167 agencies and subcomponents that submitted an MD-715 report in FY 2006, and the 101 of 158 agencies (64%) in FY 2005.

Section D - Proactive Prevention of Unlawful Discrimination

Part 1614 of EEOC's regulations provides that each agency shall "establish a system for periodically evaluating the effectiveness of the agency's overall equal employment opportunity effort." 29 C.F.R. §1614.102(a)(11). In particular, "each agency shall maintain a continuing affirmative program to promote equal opportunity and to identify and eliminate discriminatory practices and policies." 29 C.F.R. §1614.102(a).

1. Barrier Analysis

Pursuant to Section II(D) of MD-715, a model EEO program "must conduct a self-assessment on at least an annual basis to monitor progress and identify areas where barriers may operate to exclude certain groups." Part A(II) of MD-715 provides that "where an agency's self-assessment indicates that a racial, national origin, or gender group may have been denied equal access to employment opportunities, the agency must take steps to identify and eliminate the potential barrier." Of the 172 agencies and subcomponents that submitted a FY 2007 MD-715 report, 109 (63.4%) reported addressing potential barrier(s), down from the 143 of 167 (85.6%) in FY 2006.

Barriers are defined as policies, procedures, practices, or conditions that limit or tend to limit employment opportunities for members of a particular race, ethnic or religious background, gender, or for individuals with disabilities. While some barriers are readily discernable, most are embedded in the agency's day-to-day employment policies, practices and programs, including: recruitment; hiring; career development; competitive and noncompetitive promotions; training; awards and incentive programs; disciplinary actions; and separations.

2. Composition of the Federal Work Force

With the increasing number of new grade and pay systems being adopted throughout the federal government, this year's report provides statistics on the composition of the Total Work Force as well as statistics on employees in four pay structures:

Senior Pay Level pay structures were created by the Civil Service Reform Act of 1978, which established the Senior Executive Service (SES) as a separate personnel system covering a majority of the top managerial, supervisory, and policy-making positions in the Executive Branch of government.

The General Schedule pay system was created by the Classification Act of 1949, which created a centralized job evaluation for all White-Collar positions and merged several separate schedules into one.

The Federal Wage System was established by Public Law 92-392 in 1972 to standardize pay rates for Blue-Collar federal employees.

Today, many alternative pay plans are being used and proposed across the federal government. In this report they are identified as "Other Pay Systems." These systems include pay-banding systems, the Market-Based Pay system of the Army and Air Force Exchange Service, and include such agencies as the United States Postal Service and the Tennessee Valley Authority. Table 1 below shows the representation rates for each of these pay structures.

a. Total Work Force: Hispanic or Latinos, White Women and Persons of Two or More Races Remain Below Availability

In FY 2008, the federal government had a Total Work Force of 2,763,183 employees, compared to 2,462,152 in FY 1999. Table 2 shows the participation rate of the identified groups below, as compared to the civilian labor force (CLF). Table A-1 in Appendix III, located at http://www.eeoc.gov/, provides ten-year trend data.

*Asians, Native Hawaiian and Other Pacific Islander data included in Asian data  **Data not available.

A comparison of the data on the participation rates of persons in particular agency components or specific major occupations can serve as a diagnostic tool to help identify possible areas where barriers to equal opportunity may exist within an agency.

Participation rate information is located in Tables A-1a, A-6b and A-6c of Appendix III, located at http://www.eeoc.gov.⁶

b. Senior Pay Levels: Continued Improvement

With a total of 20,407 employees, the Senior Pay Level (SPL) positions comprise 0.74% of the total work force. SPL positions include the SES, Executive Schedule, Senior Foreign Service, and other employees earning salaries above grade 15 of the General Schedule. Table 3 below reflects the SPL representation. Table A-2 of Appendix III at contains additional data.

  *Includes both Asian and Pacific Islander  **Data not available

• From FY 1999 to FY 2008, the Total SPL Work Force increased by 4,435 employees, a net change of 27.77%. Likewise, the number of Individuals with Targeted Disabilities in the SPL work force increased from 65 in FY 1999 to 104 in FY 2008, a net change of 60%.
• The participation rate for women in the SPL work force increased 50.98% over the ten year period from FY 1999 (3,744) to FY 2008 (5,653) while women increased their participation rate in the total work force by only 17.61% over the same ten-year period from 1,036,812 in 1999 to 1,219,484 in FY 2008.
• Between FY 1999 and FY 2008, the participation rate for Hispanic or Latinos increased (50.92%) over the ten-year period from FY 1999 (489) to FY 2008 (738), while their overall participation rate in the total work force increased 33.17%, although still remaining below the 2000 CLF. The participation rate was (0.51%) for Individuals with Targeted Disabilities, (6.68%) for Black or African American employees, (3.97%) for Asian employees and (0.75%) for American Indian/Alaska Native employees.
• In FY 2008, the "feeder grades" to SPL positions ⁷ (GS grades 14 and 15) showed the following participation rates: men (64.82%), women (35.18%), Hispanic or Latino employees (4.42%), White employees (76.66%), Black or African American employees (10.76%), Asian employees (6.88%), Native Hawaiian/Other Pacific Islander employees (0.06%), American Indian/Alaska Native employees (1.02%), employees of Two or More Races (0.20%) and Individuals with Targeted Disabilities (0.53%).
• Part II of this report also contains information on the major occupations in selected government agencies. Data on participation rates of persons holding positions in an agency's major occupations can serve as a diagnostic tool to help determine possible areas where barriers to equal opportunity may exist and prevent upward mobility to SPL positions.

c. General Schedule and Related Positions: Hispanic or Latino, Asian and Women Improve

In FY 2008, the GSR participation rate for Hispanic or Latino employees was 8.00%; for White employees was 66.19%; for Black or African American employees was 18.24%; for Asian employees was 4.91%, for Native Hawaiian/Other Pacific Islander employees was 0.21%; for American Indian/Alaska Native employees was 2.07%, for persons of Two or More Races (0.38%) and for Individuals with Targeted Disabilities was 1.03%. See Table A-3 in Appendix III at http://www.eeoc.gov/, for the entire ten-year trend in the GSR pay systems.

• With a total of 1,297,866 employees, the General Schedule and Related (GSR) positions comprised 46.97% of the total work force in FY 2008. GSR positions are mostly comprised of positions whose primary duty requires knowledge or experience of an administrative, clerical, scientific, artistic, or technical nature. GSR figures include employees in other pay systems that are easily converted to GS by OPM.

*Includes both Asian and Pacific Islander **Data not available

• Women held 49.40% of all GSR positions in FY 2008, up from 47.93% in FY 1999. Over the ten year period, Hispanic or Latino, Asian and American Indian/Alaska Native employees gradually increased their representation rates in the GSR work force as well.
• Over the ten year period, the participation rate for Individuals with Targeted Disabilities in the total work force declined from 1.12% to 0.88% while the participation rate in the GSR workforce declined from 1.24% to 1.03% of the GSR work force.
• The average grade level for the total GSR permanent and temporary work force was grade 9.9 in FY 2008, slightly lower than the FY 2007 average grade of 10. Of GSR employees, 19.57% were in grades 1-6, 39.02% were in grades 7-11, 29.55% were in grades 12-13, and 11.85% were in grades 14-15.

• The average GSR grade level for Hispanic or Latino employees (9.4), Black or African American employees (9), Native Hawaiian/Other Pacific Islander employees (7.9), American Indian/Alaska Native employees (8.4) and persons of Two or More Races (8.6) was lower than the government-wide average grade level (9.9).
• Approximately 41.30% of women employed in the GSR work force were in grades 7-11. The average GSR grade for women was 9.3 more than half a grade below the government-wide average of 9.9 and more than one grade below men (10.5).
• The average GSR grade level for Individuals with Targeted Disabilities was 8.5, almost one and a half grades below the government-wide average. See Table A-3 in Appendix III at http://www.eeoc.gov/.

d. Federal Wage System Positions: Women and Minorities Decrease Slightly

• With a total of 195,073 employees, Federal Wage System (FWS) positions comprised 7.06% of the total work force in FY 2008. FWS (Blue-Collar) positions are mostly comprised of trade, craft and labor occupations.

* Includes data for Native Hawaiian/Other Pacific Islander until separate data in FY 2006 data.

• FY 2008 FWS positions declined 12.69% from FY 1999.
• Since FY 1999, the participation rates for Hispanic or Latino employees (7.72%), Black or African American employees (18.23%), Asian employees (3.96%), American Indian/Alaska Native employees (2.42%) and women (10.9%) have declined, while the participation rates of White employees (66.63%) have increased slightly. See Table A-4 in Appendix III at http://www.eeoc.gov/ for the complete ten-year trend.
• In FY 2008, the participation rate of men in the FWS pay system was 38.39 percentage points higher than the participation rate of men in the GSR pay system. Comparatively, FWS participation rates for White, Black or African American employees, Native Hawaiian/Other Pacific Islander, American Indian/Alaska Native employees and Individuals with Targeted Disabilities were higher than the GSR participation rates, while the FWS work force participation rates for women, Hispanic or Latino employees, White employees, and Asian employees were lower.

e. Other Pay Systems: Employees Increase By 16.33%

• With a total of 1,249,837 employees, other pay systems (OPS) comprised 45.23% of the total work force in FY 2008. Other Pay Systems include pay banding and other pay-for-performance systems.

*Includes both Asian and Pacific Islander employees;  ** Included with Asian employees

• The participation rate for women (44.12%) in OPS was significantly lower than those (49.40%) in the GSR pay system.
• In FY 2008, the OPS participation rates for Hispanic or Latino employees (7.98%), Asian employees (7.20%), American Indian/Alaska Native employees (1.08%) and employees of Two or More Races (0.79%) slowly rose, while the participation rates for White employees (64.04%), Black or African American employees (18.57%) and Individuals with Targeted Disabilities (0.70%) fell from FY 1999 levels.
• In FY 2008, the OPS participation rates for Hispanic or Latino employees, Black or African American employees, and Asian employees were higher than in the GSR and FWS pay systems. OPS participation rates for White employees and American Indian/Alaska Native employees and Individuals with Targeted Disabilities were lower than those in the GSR and FWS pay systems. See Table A-5 in Appendix III at http://www.eeoc.gov/ for the complete ten-year trend.

3. Participation Rate of Individuals with Targeted Disabilities Continues to Fall

• From FY 1999 to FY 2008, the Total Work Force increased by 301,031 employees, a net change of 12.22%. However, the number of federal employees with targeted disabilities decreased from 27,601 in FY 1999 to 24,427 in FY 2008, a net change of –11.49%, resulting in a 0.88% participation rate. Only thirteen agencies have achieved the federal goal of at least a 2% participation rate for Individuals with Targeted Disabilities.
• The EEOC had the highest percentage of Individuals with Targeted Disabilities (2.95%) among those agencies with 500 or more employees. See Table 7 below.

* These agencies showed an increase in the number and participation rate of IWTD in FY 2008.

^^Defense Contract Management Agency was a part of Defense Logistics Agency until March 27, 2000.

* These Defense Components showed an increase in the number and participation rate of IWTD in FY 2008.

Section E- Efficiency in the Federal EEO Process

EEOC's regulations provide that each agency shall assure that individual complaints are fairly and thoroughly investigated and that final action is taken in a timely manner. 29 C.F.R. §1614.102(c)(5). Section II(E) of MD-715 establishes that a model EEO program must have an efficient and fair dispute resolution process and effective systems for evaluating the impact and effectiveness of its EEO programs. In this regard, Section II(E) recommends that agencies "benchmark against EEOC regulations at 29 C.F.R. Part 1614 and other federal agencies of similar size which are highly ranked in EEOC's Annual Report on the federal sector complaints process."

1. Federal Agency EEO Programs: Complaints Increase and Processing Times Continue to Exceed Regulatory Deadlines

Agencies process federal employees' EEO complaints under EEOC's regulations at 29 C.F.R. Part 1614. Employees unable to resolve their concerns through counseling can file a complaint with their agency.¹⁰ The agency will either dismiss¹¹ or accept the complaint. If the complaint is accepted, the agency must conduct an investigation, and, in most instances, issue the investigative report within 180 days from the date the complaint was filed.¹²

After the employee receives the investigative report, s/he may: (1) request a hearing before an EEOC Administrative Judge, who issues a decision that the employee or the agency may appeal to EEOC's Office of Federal Operations; or (2) forgo a hearing and request a final agency decision. An employee who is dissatisfied with a final agency decision or the agency's decision to dismiss the complaint may appeal to EEOC. The complainant or agency may also request EEOC to reconsider its decision on the appeal. In addition, during various points in the process, the complainant has the right to file a civil action in a federal court.

As the EEO complaint process has become increasingly more costly, adversarial, and lengthy, EEOC has encouraged agencies to promote and expand the use of alternative dispute resolution (ADR) as a means of avoiding formal adjudication processes. Used properly, ADR can provide fast and cost-effective results while improving workplace communication and morale.¹³

a. Pre-Complaint Counselings and Complaints Increase

Completed counselings increased by 2.9% from FY 2007 to FY 2008 and decreased 8.3% from FY 2004. Formal complaints increased by 2.4% from FY 2007 to FY 2008 and decreased 12.0% from FY 2004. Of the 38,898 completed counselings, 15,539 individuals filed 16,752 formal complaints in FY 2008.¹⁴ The number of formal complaints filed represents 41.8% of all pre-complaint counseling activities in FY 2008. As Figure 5 shows, over the past five fiscal years, the number of pre-complaint counseling activities has decreased from 42,412 in FY 2004 to 38,898 in FY 2008, and likewise, the number of complaints filed by individuals decreased over the five-year period. During the same five-year period, the number of formal complaints filed continued to represent less than 50% of all pre-complaint counseling activities. See Figure 5. Significantly, while the United States Postal Service constituted 27.6% of the work force, it accounted for 47.1% of all EEO counselings, 36.6% of all complaints filed, 36.9% of all completed investigations and 40.8% of all complaints closed in FY 2008. See Tables B-1, B-9 and B-10 in Appendix III at http://www.eeoc.gov/.

Table 9 below shows that among the cabinet/large (15,000 or more employees) agencies, in FY 2008, the USPS reported the highest percentage (2.2%) of its work force that completed counseling, while the government-wide average was 1.2%. Among the medium sized agencies (1,000 to 14,999 employees), Broadcasting Board of Governors reported the highest percentage (4.1%) of its work force completed counseling. Agencies that had fewer than 25 completed/ended counselings were not included in the ranking. Small and Micro agencies (1-999 employees) typically have fewer than 25 completed/ended counselings and therefore are not ranked. Table B-1 in Appendix III lists this information for all agencies and is located at http://www.eeoc.gov/.

As shown in Table 10 below, in FY 2008, among the cabinet/large (15,000 or more employees), the Department of Housing and Urban Development reported the highest complainant rate (1.0%), while the government-wide average was 0.5%. Among the medium sized agencies (1,000 to 14,999 employees), the Broadcasting Board of Governors reported the highest complainant rate of (1.7%). Agencies that had fewer than 25 complaints filed were not included in the ranking. Table B-1 in Appendix III contains this information for all agencies and is located at http://www.eeoc.gov/.

b. Pre-Complaint ADR Usage – Higher Rates in Two Major Categories

Beginning in FY 2006, ADR offer and participation rates were measured in completed/ended counselings at the end of the fiscal year to ensure greater uniformity, consistency, and quality in the reporting and utilization of ADR data.

Therefore, comparison of FY 2006 through FY 2008 data with prior year's data is not possible. In FY 2008, the government-wide offer rate was 81.3% based upon 31,607 ADR offers made in 38,898 completed/ended counselings. Of these offers, 19,267 were accepted into agencies' ADR programs, resulting in a 49.5% participation rate in FY 2008, up from the 48.3% reported for FY 2007.

Twenty-six agencies had 100% offer rates in FY 2007. The agencies were the Broadcasting Board of Governors, Central Intelligence Agency, Commission on Civil Rights, Committee for Purchase from People Who Are Blind or Severely Disabled, Defense Army & Air Force Exchange Service, Defense Human Resources Activity, Defense Intelligence Agency, Defense National Geospatial Intelligence Agency, Defense Nuclear Facilities Safety Board, Defense Office of the Secretary/Wash. Hqtrs. Services, Defense Security Service, Defense Threat Reduction Agency, Farm Credit Administration, Federal Election Commission, Federal Reserve System-Board of Governors, Federal Trade Commission, Government Printing Office, International Boundary and Water Commission, International Trade Commission, National Credit Union Administration, National Gallery of Art, National Labor Relations Board, National Reconnaissance Office, Nuclear Regulatory Commission, Securities & Exchange Commission and the Smithsonian Institution.

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

In FY 2008, the U.S. Postal Service reported the highest ADR participation rate in the pre-complaint process (74.1%) among the cabinet/large agencies, while the government-wide average was 49.5%. Among the medium sized agencies EEOC reported the highest pre-complaint ADR participation rate (34.6%). The government-wide average falls to 27.7% without the U.S. Postal Service. No other agency with 25 or more completed/ended counselings had a participation rate greater than fifty percent. See Table 11. Agencies that had fewer than 25 completed/ended counseling were not included in the ranking. See Tables B-1 and B-4 in Appendix III for information on all agencies, which is located at http://www.eeoc.gov/.

c. Agencies Meet Counseling Deadlines in 91.2% of Cases

On average, in FY 2008 agencies met timeliness requirements for EEO counseling in 91.2% of all completed/ended counselings, an improvement from 90.0% in FY 2007 and more successful then the 76.3% that were timely in FY 2004. Agencies are required to complete counseling in 30 days except when there is a 60-day extension due to an ADR election or the complainant agrees in writing to an extension.

d. Agencies Pre-Complaint Resolution Rate in FY 2008 Falls

During counseling and ADR in the pre-complaint stage, EEO disputes can be resolved by either a settlement or a decision not to file a formal complaint. In FY 2008, the government-wide resolution rate average was 55.1%, down from 55.6% in FY 2007.

National Endowment for the Arts Holds the Highest Pre-Complaint Resolution Rate

In FY 2008, the National Endowment for the Arts again reported the highest pre-complaint resolution rate (100%) among agencies with more than 25 completed/ended counselings. Among cabinet/large agencies, Defense National Guard Bureau reported the highest pre-complaint resolution rate (86.1%). See Table 12. The Federal Reserve System – Board of Governors reported the highest pre-complaint resolution rate (91.3%) among the medium sized agencies. Agencies that had fewer than 25 completed/ended counselings were not included in the ranking. However eight agencies, African Development Foundation, Committee for Purchase from Blind and Severely Disabled, Farm Credit Administration, Federal Energy Regulatory Commission, Federal Housing Finance Board, Federal Maritime Commission, International Boundary and Water Commission, Office of Government Ethics and the U. S. Tax Court in this category had 100% resolution rates. Table B-3 in Appendix III contains this information for all agencies and is located at http://www.eeoc.gov/.

Defense National Guard Bureau Had the Highest ADR Resolution Rate in FY 2008

In FY 2008, the Defense National Guard Bureau reported the highest ADR resolution rate in the pre-complaint process (100%), whereas the government-wide average was 66.6%. See Table 13. When the U.S. Postal Service resolution rate (74.87%) is excluded from the government-wide average, the government-wide ADR resolution rate decreased to 46.9% in FY 2008. Agencies that had fewer than 25 ADR closures were not included in the ranking. Table B-5 in Appendix III contains this information for all agencies and is located at https://www.eeoc.gov/federal-sector/reports/annual-report-federal-work-force-fiscal-year-2008.

e. Monetary Benefits in Pre-Complaint Phase Almost Doubles

Monetary benefits awarded in settlements during the pre-complaint phase, shown in Table 14, have surpassed the FY 2004 benefits amount. The data showed an increase in the average amount of monetary benefits from $3,349 in FY 2007 to $6,112 in FY 2008.

f. The Most Frequently Alleged Basis and Issue Remain Unchanged

Of the 16,752 complaints filed in FY 2008, the basis most frequently alleged was reprisal (7,489) and the issue most frequently alleged was non-sexual harassment (4,999). As shown in Tables 15 and 16, this trend has remained unchanged for the past five fiscal years. In FY 2008, complaints filed with allegations of race (Black) again exceeded those complaints filed with allegations of disability (physical).

In FY 2008, allegations of race discrimination were made in 37.4% of all complaints, up from the 36.4% of all complaints filed in FY 2007. In FY 2008, there was an 11.9% decrease in the number of complaints filed since FY 2004, and the percentage of complaints alleging discrimination based on race decreased by 18.0%. During that same period, the percentage of complaints filed alleging discrimination based on color decreased 19.9%, from 2,183 in FY 2004 to 1,752 in FY 2008.¹⁵

In April 2006, EEOC issued Section 15 of the new Compliance Manual on "Race and Color Discrimination." It includes numerous examples and guidance in proactive prevention and "best practices." This Manual Section is located at https://www.eeoc.gov/laws/guidance/section-15-race-and-color-discrimination.

g. Agency Investigation Times Remain within Regulatory Time Limits, Yet, Agencies Continue to Exceed Time Limits for Issuing Final Agency Decisions

Investigations

Investigations into allegations of discrimination are a key component of the formal EEO complaint process. Delays may impede the primary goal of gathering sufficient evidence to permit a determination as to whether discrimination occurred. EEOC regulation 29 C.F.R. §1614.106(e)(2) requires agencies to conduct an investigation and issue a report to the complainant within 180 days of the filing of a complaint unless: 1) the parties agreed to no more than a 90-day extension (may not exceed 270 days); or 2) the complaint was amended or consolidated, which can add another 180 days to the period but may not exceed a total of 360 days.

In FY 2008, agencies timely completed investigations 73.8% of the time, slightly lower than the 73.95% timely completed in FY 2007 (including written agreements to extend the investigation and consolidated or amended complaints). When the U.S. Postal Service is not included, the percentage of timely completed investigations decreased to 58.7% government-wide. Agencies' average time to complete investigations slipped upward in FY 2008 to the regulatory timeframe of 180 days while last year's reported average of 176 days was the best in fourteen years. In comparison, agency investigations averaged 186 days in FY 2006 and 280 days in FY 2004. See Figure 6 below.

Of those investigations required to be completed within the 180-day time limit, agency in-house investigators averaged 213 days to complete the investigation, while contract investigators averaged 165 days. Several years ago, in a review of the investigatory practices of selected agencies, EEOC identified several reasons for untimely investigations: poorly staffed EEO offices, unnecessary and time-consuming procedures,¹⁶ delays in obtaining affidavits, and inadequate tracking and monitoring systems. For more information, see EEOC's Federal Sector Investigations – Time and Cost, issued June 2004 and Attaining a Model Agency Program: Efficiency at https://www.eeoc.gov/federal-sector/reports.

Tennessee Valley Authority Completed the Highest Percentage of Timely Investigations

As shown in Table 17, the Tennessee Valley Authority timely completed 100% of its investigations.¹⁷ Significantly the US Postal Service timely completed 99.5% of its 4,113 investigations in FY 2008. Among medium agencies the Tennessee Valley Authority topped the list while the General Services Administration reported the next highest timely completed investigation rate (94.1%) among those agencies which completed 25 or more investigations. Agencies that had completed fewer than 25 investigations were not included in the ranking. Table B-9 in Appendix III contains this information for all agencies and is located at http://www.eeoc.gov/.

In FY 2008, the government-wide average cost for contracting out complaint investigations $2324.00 decreased 0.98% from the FY 2007 average cost of $2347.02. However, the FY 2008 average cost of agency (in-house) investigations ($5352.26) increased 12.6% from the FY 2007 average cost of $4753.30. Average costs to contract out investigations in FY 2008 were approximately 56.6% (up from the 52.7% difference in FY 2007) less than the average costs of agency (in-house) investigations.

Final Agency Actions

EEOC regulations require an agency to take a final action on each formal complaint filed. Table 18 below provides a breakdown with processing time for all final agency actions. Agencies may issue a decision dismissing a complaint on procedural grounds such as untimely EEO counselor contact or failure to state a claim. Government-wide, agencies took an average of 88 days, a significant drop from the 125 days in FY 2007, to issue a decision dismissing a complaint on procedural grounds. EEOC maintains that, in general, acceptance letters/dismissal decisions should be issued well in advance of the 180-day time limit to complete an investigation. A suggested practical method of procedure is to issue these actions within 60 days of the filing of the formal complaint.

An agency may also issue a decision after an investigation, either finding discrimination or finding no discrimination. In FY 2008, agencies timely issued 63.5% of their final agency merit decisions, a slight increase from the 63.4% timely completed in FY 2007. Commission regulations require agencies to issue final decisions within 60 days of a complainant's request for such a decision or Administrative Judge's remand for a final agency decision. In addition, regulations require agencies to issue a final agency decision within 90 days after completion of an investigation if the complainant has not requested either a final decision or an EEOC hearing. In FY 2008 agencies issued merit final agency decisions without an Administrative Judge's decision in an average of 126 days up from 120 days in FY 2007.

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

In FY 2008, the Department of the Navy reported the highest percentage (97.9%) of timely issued merit decisions without an Administrative Judge decision. The FY 2008 government-wide average timely issued merit decision percentage was 59.7% with the U.S. Postal Service and dropped to 35.6% without the U.S. Postal Service. See Table 19 below.¹⁸ Agencies that issued fewer than 25 merit decisions without a hearing were not included in the ranking. In FY 2008, there were no agencies smaller than cabinet/large (15,000 or more employees) that issued 25 or more merit decisions without an Administrative Judge Decision. See Table B-14 in Appendix III for this information on all agencies located at http://www.eeoc.gov/.

Finally, when an EEOC Administrative Judge has issued a decision, the agency must issue a final order either implementing the Administrative Judge's decision or not implementing and simultaneously appealing to EEOC. In FY 2008, agencies issued 3,063 final orders implementing and 64 orders not implementing the Administrative Judge's decision. Commission regulations require agencies to issue an order within 40 calendar days of receiving the Administrative Judge's decision or the decision becomes the agency's final decision. In FY 2008, agencies issued orders on AJ merit decisions in an average of 583 days after the complaint was filed, a significant drop from 743 days in FY 2004.

h. % of Findings of Discrimination Decline and Monetary Benefits Highest in 5 Years

In FY 2008 the findings of discrimination dropped to the FY 2006 level of 2.5%, the percentage of findings of discrimination had risen in FY 2007 to 2.9%. However, Table 20 below shows that both the total number of merit decisions and the number of findings of discrimination have decreased this year.

Average monetary benefits awarded in resolution of formal EEO complaints increased by 14.4% between FY 2007 and FY 2008 and by 94.6% from FY 2004. Table 20 above shows the total monetary benefits awarded during the formal complaint process for the past five fiscal years, while Figure 7 indicates what portion of these benefits were for compensatory damages, attorney's fees and lump sum payments.

i. Affirmation Rate of Final Agency Decisions on Appeal

As demonstrated by Table 21 below, 66.6% of final agency decisions (FADs), excluding those in which an AJ issued a decision, were affirmed on appeal in FY 2008. This represents a 1.8% decrease from the FY 2007 affirmation rate and a 14.1% decrease from the FY 2004 affirmation rate.

2. EEOC Hearings and Appeals: Processing Times Increase for Hearings and Appeals

By federal regulation, EEOC becomes involved in the handling of an EEO complaint from a federal employee after the case initially has been processed by the employing agency and a hearing has been requested before an EEOC Administrative Judge or an appeal from a final agency action has been filed.

If a complainant requests a hearing, an EEOC Administrative Judge may oversee discovery between the parties and hold a hearing or issue a decision on the record. If a hearing is held, the Administrative Judge will hear the testimony of witnesses, review relevant evidence, and make findings of fact and conclusions of law in a decision issued to the parties. In appropriate cases, an Administrative Judge may, in lieu of holding a hearing, procedurally dismiss a case or issue a decision by summary judgment.

EEOC is also responsible for deciding appeals from final actions issued by federal agencies on complaints of employment discrimination. These final actions may involve an agency's decision to procedurally dismiss a complaint, a final decision on the merits of a complaint when the complainant has not requested a hearing, or a decision on whether or not to fully implement the decision of an EEOC Administrative Judge. Once appellate decisions are issued, EEOC monitors agency compliance with all orders and takes appropriate action to enforce them. EEOC's adjudicatory responsibilities also include resolving allegations of a breach of a settlement agreement involving a federal sector EEO complaint, as well as deciding petitions for review of decisions involving claims of discrimination by the Merit Systems Protection Board and petitions for review of final grievance decisions when claims of discrimination are permitted to be raised in the grievance procedure.

In addition to and equally important to its adjudicatory role, is EEOC's engagement in vigorously assisting federal agencies in the proactive prevention of discrimination. EEOC's Office of Federal Operations (OFO) provides outreach, technical assistance and oversight to federal agencies, including conducting program reviews throughout the federal government to evaluate agencies' efforts to develop and maintain model EEO programs. OFO monitors and evaluates agencies' activities to identify and correct barriers to equal opportunity, reasonable accommodation procedures for individuals with disabilities, and ADR programs. OFO also gathers and analyzes data provided by federal agencies on employment trends and EEO complaint processing; issues periodic reports which are publicly available; and works with individual agencies to identify both positive and negative trends in their EEO programs. In addition, through EEOC's Revolving Fund, OFO develops and delivers training to federal agencies and other interested parties on a wide variety of federal-sector EEO topics.

a. Hearings

i. Hearings Inventory on the Rise

The hearings inventory increased from 5,505 in FY 2007 to 6,488 in FY 2008, which represents an increase of 17.9%. Since FY 2004, the hearings inventory has increased 8.6%.

ii.  Hearing Requests Increase

Hearing requests increased by 2.1% from 7,869 in FY 2007 to 8,036 in FY 2008, and have decreased by 10.9% from FY 2004. For comparison purposes, the 8,036 hearings requested comprised 47.9% of the total complaints filed in FY 2008.

iii. Hearing Closures

During FY 2008, EEOC's Hearings Program resolved 7,138 cases, including 60 class actions, which represents a 0.3% decrease from the 7,163 cases closed in FY 2007 and a 39.2% decrease from the 11,740 cases closed in FY 2004. Excluding the class actions, the 7,078 individual cases in FY 2008 were closed in the following manner: 12.9% were by decision following a hearing; 29.1% were by decisions on the record; 25.9% were closed by settlements; 15.0% were by procedural dismissal; and 17.1% were withdrawals. See Table 22 for a comparison of FY 2003 – FY 2007.

iv. Average Processing Time for Hearings

The average processing time for hearing closures increased from 248 days in FY 2007 to 262 days in FY 2008, and represents a significant decrease from the 355 days in FY 2004. The average age of the pending inventory increased to 332 days in FY 2008 from 276 days in FY 2007, and has exceeded the 296 days in FY 2003 and FY 2004.

v.  Agencies Challenge Findings of Discrimination

In FY 2008, EEOC Administrative Judges issued 155 decisions finding discrimination, which was 5.5% of all decisions on the merits of complaints. In comparison to the 182 decisions finding discrimination that Administrative Judges issued in FY 2007, the 155 decisions in FY 2007 represent a 14.8% decrease. Agencies may either fully implement or appeal the Administrative Judge's decision to the OFO. In FY 2008, agencies appealed only 2.1% of all Administrative Judge decisions; however, they appealed 34.8% of the cases where an Administrative Judge found discrimination.

vi. Monetary Benefits Decrease at Hearings

In FY 2008, Administrative Judge decisions and settlements at the hearings stage awarded $104.7 million in benefits, as compared to the $39.9 million in FY 2007 and the $45.9 million awarded in FY 2004.²⁰ Note that benefits awarded by decisions of Administrative Judges at the hearings stage are preliminary, pending a decision on implementation by the agency or on appeal.

vii.  High Affirmation Rate of AJ Decisions on Appeal

As demonstrated by the table below, over 94% of Administrative Judge's decisions were affirmed on appeal in FY 2008.²¹ The number of appealed Administrative Judge's decisions decreased 29.8% over the five year period FY 2004 to FY 2008, the affirmation rate increased by only 8.6%.

b. Appeals

i. Appeals Inventory Declines

OFO's appellate inventory fell in FY 2008 to 3,275, which represents a 6.3% decrease from the 3,496 case inventory at the close of FY 2007 and an 9.9% reduction from the 3,634 case inventory at the close of FY 2004.

ii. Appeal Receipts Continue On A Downward Trend

OFO received 5,082 appeals in FY 2008, representing a 2.8% decrease from the 5,226 appeals filed in FY 2007. FY 2008 appeal receipts represent a 35.1% decrease from the 7,831 appeals received in FY 2004.

iii. Appeal Closures Remain Steady

OFO closed a total of 5,303 appellate cases in FY 2008. Of this number, 3,395 (64.0%) alleged violations of Title VII; 1,283 (24.2%) involved the Rehabilitation Act; 1,181 (22.3%) violations of the ADEA; and 26 (0.5%) involved the Equal Pay Act of 1963. In FY 2007, OFO closed a total of 5,617 appellate cases, of which 3,690 were Title VII cases (65.7%); 1,303 involved the Rehabilitation Act (23.2%); 1,293 alleged violations of the ADEA (23.0%); and 25 involved the Equal Pay Act of 1963 (0.4%).²³ See Figure 14 for the appeal closures from FY 2004 to FY 2008.

Table 25 below provides a breakdown by appeal type of all FY 2007 receipts and closures.

In FY 2008, OFO closed 2,374 appeals addressing the merits of the underlying discrimination claims, and made a total of 111 findings of discrimination, which represents 4.7% of the total. In FY 2007, OFO closed 2,298 appeals addressing the merits of the underlying discrimination claims, and made a total of 114 findings of discrimination, which represented 5.0% of the total. In FY 2008, OFO reversed 18.0% of the 2,498 appeals of procedural dismissals.

iv. Average Processing Time of Appeal Closures

The average processing time for appeal closures rose to 278 days in FY 2008, representing a 20.9% increase from 230 days in FY 2007 and a 34.3% increase from 207 days in FY 2004.

OFO resolved 3,355 (63.3%) of the 5,303 appeals closed in FY 2008 within 180 days. The average age of the pending inventory at the end of FY 2008 was 297 days, a 2.6% decrease from the 305-day average age at the end of FY 2007 and a 25.0% decrease from the 396-day average age of the open inventory at the end of FY 2004.

v. Three Most Prevalent Bases and Issues on Appeal Remain Unchanged

In FY 2008, just as in FY 2007, reprisal, age and disability were the most prevalent bases of discrimination in closed appeals. Harassment (non-sexual), promotion and removal were again the three most prevalent issues of discrimination in closed appeals.

vi. $12.3 Million Awarded on Appeal

In FY 2008, the $12.3 million in monetary benefits awarded in compliance with appellate decisions (including settlement agreements resolving appeals) is an increase of almost 15% from the $10.7 million awarded in FY 2007 and a 44.3% decrease from the $22.1 million awarded in FY 2004.

vii. Training and Outreach Conducted By EEOC

In FY 2008, EEOC staff members informed a large number of federal employees of their rights and responsibilities under the EEO process, affirmative employment programs and laws that the Commission enforces. EEOC's proactive prevention activities targeted multiple agencies, and provided to agency managers and supervisors a better understanding of how to prevent employment discrimination within their workplace. OFO staff members as well as staff from various EEOC offices throughout the country provided these training sessions.

Specifically, staff members conducted 173 training sessions reaching 6,721 federal employees, including 185 new EEO counselors, 300 new EEO investigators and 65 EEO professionals in affirmative employment programs. Additionally, staff members participated in 6 outreach sessions which reached another 140 individuals.

OFO staff members also responded to more than 6,672 calls regarding the EEO complaint/appeals process, thereby providing the federal sector EEO community and employees with timely information.

The Commission's training and outreach information can be found at https://www.eeoc.gov/outreach-education-technical-assistance.

Section F - Responsiveness and Legal Compliance

The sixth MD-715 element, "Responsiveness and Legal Compliance," encompasses timely filing of required reports with EEOC and timely compliance with EEOC's issued orders.

1. 78% of Submitted EEOC 462 Reports Were Timely

EEOC regulation 29 C.F.R. § 1614.602(a) requires agencies to report to the EEOC information concerning pre-complaint counseling, ADR, and the status, processing, and disposition of complaints under this part at such times and in such manner as the Commission prescribes.

The requirement to file an EEOC Form 462 Report applies to all federal agencies and departments covered by 29 C.F.R. Part 1614, as defined in 29 C.F.R. § 1614.103(b). This includes Executive agencies as defined in 5 U.S.C. 105, military departments as defined in 5 U.S.C. 102, the Government Printing Office, the Postal Rate Commission, the Smithsonian Institution, the Tennessee Valley Authority, the United States Postal Service, and those units of the judicial branch of the federal government having positions in the competitive service. All covered agencies must file Form 462 Reports with the Commission. EEOC Form 462 Reports are due on or before October 31st of each year.

In FY 2008 EEOC made the EEOC Form 462 Report submission paperless for agencies by assigning a unique personal identification number (PIN) to agency EEO Directors for use as their signatures. The PIN needed to be entered on the secure web site by the October 31st deadline to be considered timely. As with any new process there was a learning curve and the number of timely submitted reports dropped from 87 or 92.6% of the 94 agencies (with 100 or more employees) in FY 2007 to 76 or 78.4% of the 97 agencies (with 100 or more employees) in FY 2008. The FY 2008 percentage of timely filing is also down compared to FY 2006 when 91 agencies (with 100 or more employees) were required to submit an EEOC Form 462 report and 86 or 94.5% submitted them timely.

2. Almost Twice as Many Timely Submitted MD-715 Reports in FY 2008

EEOC regulation 29 C.F.R. § 1614.601(g) requires agencies to report to the EEOC "on employment by race, national origin, sex, and handicap in the form and at such times as the Commission may require." In addition, EEOC regulation 29 C.F.R. § 1614.602(c) requires agencies to "submit annually for the review and approval of the Commission written national and regional EEO plans of action."

MD-715 reports provide information on an agency's progress in achieving the model EEO program elements, eliminating barriers, and ability to conducting a wide array of examinations of the agency's Title VII and Section 501 work force profiles. MD-715 applies to all Executive agencies and military departments (except uniformed members) as defined in Sections 102 and 105 of Title 5. U.S.C. (including those with employees and applicants for employment who are paid from non-appropriated funds), the United States Postal Service, the Postal Rate Commission, the Tennessee Valley Authority, the Smithsonian Institution, and those units of the judicial branch of the federal government having positions in the competitive service. These agencies and their Second Level Reporting Components are required to file an EEOC FORM 715-01 on or before January 31st of each year.

With extensions 80.7% or 117 of the 145 agencies and subcomponents submitted timely MD-715 reports in FY 2008,²⁵ almost twice the number filed timely in FY 2007. 44.8% or 77 of the 172 agencies and subcomponents submitted timely MD-715 reports in FY 2007 down from the 50% or 84 of the 167 agencies and subcomponents that timely submitted in FY 2006 and the 68% or 107 of the 158 agencies and subcomponents that timely submitted in FY 2005.

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Footnotes

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

² The September 30, 2008 snapshot includes only employees in pay status on that date; thus, some permanent employees, like seasonal employees or those on active military tours of duty, are not included.

³ Certain agencies do not provide total work force numbers for national security reasons. The 2000 EEO Special File does not control for citizenship.

⁴ For more information, please review EEOC's Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, Notice 915.002 (June 18, 1999) (Enforcement Guidance on Harassment).

⁵ Because separate data is unavailable, the Asian American/Other Pacific Islander data prior to 2006 throughout this report includes the data for Asian with "Native Hawaiian and Other Pacific Islanders."

⁶ These tables report breakouts of the employment data for specific components of certain large federal agencies, including the Departments of Agriculture, Commerce, Health and Human Services, Homeland Security, Interior, Justice, Labor, Transportation, Treasury and Veterans Affairs, as well as certain defense agencies, the National Aeronautics and Space Administration and the United States Postal Service.

⁷ Where an EEO group has a low participation rate in the feeder grade/applicant pool, there is a strong likelihood that the group will be absent or have a low participation rate in the next higher grade level. See Government Accountability Office Report No.GAO-03-34, Senior Executive Service: Agency Efforts Needed to Improve Diversity as the Senior Corps Turns Over (January 2003).

⁸ Table 8 identifies participation rates for FY 2000 – FY 2008 which reflects total work force numbers. The FY 1999 data reflects participation rates based on permanent employees only. The total work force figures are as reported in CPDF plus AAFES & the Department of State.

⁹ Table 8a data identifies participation rates based on total work force numbers. The total work force figures are as reported in CPDF plus AAFES

¹⁰ Concerns involving both claims of discrimination and agency actions appealable to the U. S. Merit Systems Protection Board follow one of the processes set forth at 29 C.F.R. §1614.302.

¹¹ There are several reasons an agency may dismiss a complaint, including the complainant's failure to state a claim, timely contact an EEO counselor, or failure to provide necessary information to the agency. See 29 C.F.R. §1614.107(a).

¹² The 180-day period may be extended by 90 days if both parties agree. See 29 C.F.R. §1614.108(e). The regulations also extend the 180-day time limit for consolidated and amended complaints to the earlier of 180 days from the date of the most recent consolidated or amended complaint, or 360 days from the date of the earliest pending complaint. See 29 C.F.R. § 1614.108(f).

¹³ See Jeffery M. Senger, Federal Dispute Resolution: Using ADR with the United States Government, 1-7 (Jossey-Bass/John Wiley & Sons, 2003).

¹⁴ Counseling may be provided via EEO Counselor or ADR Intake Officer.

¹⁵ Complaints may contain multiple bases and issues.

¹⁶ For example, time-consuming procedures may appear in lengthy approval of investigative plans, or cumbersome procurement processes.

¹⁷ Twenty-nine agencies with fewer than 25 total investigations timely completed 100% of their investigations.

¹⁸ We note that eleven agencies issued 100.0% of their merit decisions in a timely fashion but issued fewer than 25 total merit decisions.

¹⁹ These numbers do not parallel Administrative Judge findings of discrimination because agencies may not take final action in the same fiscal year as the decision was issued. Also agencies may settle a complaint where the Administrative Judge has found discrimination.

²⁰ The total FY 2008 award includes a large class action complaint settlement.

²¹ Administrative Judge's decisions reported here do not include Petitions for Enforcement.

²² "Appeal By Agency" occurs when the agency does not fully implement the Administrative Judge's decision.

²³ The number and percentage of resolutions by statute is greater than the number of cases closed, because one or more statutory bases may be alleged in each appeal.

²⁴ It should be noted that Hearings Benefits should not be added to Appeals Benefits for a grand total, as Hearings Benefits are only preliminary.

²⁵ MD-715 reports are not currently submitted electronically; therefore the only FY 2008 data in this report regards timeliness of report submission. All other MD-715 data reported in this document reflect submitted FY 2007 MD-715 reports.

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