Federal Sector Quality Practices for Effective Hearings, Appeals and Oversight

The Commission sets forth the following quality practices for federal sector hearings, appeals and oversight.[1]  These practices are designed to deliver excellent and consistent service in adjudicating federal sector cases in the hearings and appeals processes and in providing oversight for federal agency compliance with EEO laws.  Effective implementation of these practices will advance EEOC's Strategic Plan objectives of combatting employment discrimination and preventing discrimination through education and outreach.

I. Background

To understand why the specific quality practices in this report were chosen, it helps to first understand the EEOC's role in the federal sector.  EEOC has statutory authority to enforce laws prohibiting employment discrimination in the federal sector by providing appropriate remedies in complaints brought pursuant to Title VII, the Age Discrimination in Employment Act (ADEA), the Equal Pay Act (EPA), the Rehabilitation Act of 1973, and the Genetic Information Nondiscrimination Act (GINA).[2]  The EEOC also is charged with oversight responsibilities in enforcing these laws in the federal sector.[3]

Pursuant to EEOC regulations and management directives,[4] federal employees and applicants (complainants) who believe they have been subjected to unlawful employment discrimination by a federal agency must first contact an equal employment counselor at the federal agency.  If the matter is not resolved during counseling or through Alternative Dispute Resolution (ADR), the complainant may file a formal complaint with the agency's EEO office. The agency must determine whether to investigate the complaint by analyzing its compliance with jurisdictional and procedural requirements set forth in EEOC's regulations. 

If the agency determines that a complaint does not meet EEOC's regulatory requirements, it must dismiss the complaint, explain the reasons for its dismissal, and inform the complainant how to appeal to the EEOC.  On appeal, EEOC reviews the agency's determination, and if necessary, remands the complaint for an investigation by the agency.

The agency has 180 days to complete its investigation.  Once completed, the agency must provide the complainant with a copy of the investigative file and notice of the right to request either a hearing before an EEOC administrative judge (AJ) or a Final Agency Decision (FAD) from the agency. 

If the complainant requests a hearing, an AJ in one of EEOC's field offices will handle the matter.[5]  After the AJ renders a decision, the agency must issue a final order that either accepts or refuses to implement the AJ's findings.  While the plaintiff may appeal this final order to EEOC, the agency must appeal if it refuses to fully implement the AJ's findings.  If the complainant does not request a hearing before an AJ, the agency must issue a FAD, which the complainant also may appeal to EEOC. 

On appeal, EEOC issues a decision regarding whether unlawful discrimination was found.  When discrimination findings are made, EEOC has authority to provide appropriate remedies to a complainant, including reinstatement, back pay, and damages.  Relief ordered by the Commission is binding on an agency, except in limited circumstances, and the agency may not challenge an adverse EEOC decision in court.  The complainant, however, may file a civil action in federal court in certain circumstances, and such filings terminate the administrative process.[6]

In addition to deciding cases, EEOC has a critical mission to ensure that the federal government is a leader in creating an inclusive, barrier free workplace that empowers employees to achieve superior results in service to our country.  Through evaluation of agency EEO plans, training, and outreach, EEOC works to promote a diverse and inclusive federal workforce that is free from discrimination and barriers for all applicants and employees.  To this end, EEOC has a statutory responsibility to review and approve federal agencies' equal employment opportunity (EEO) plans and to evaluate their EEO programs' operation.[7]  EEOC tailors each evaluation to the particular agency's needs, which may include on-site visits, interviews, a workforce analysis, and/or a review of relevant documentation.  With these evaluations, EEOC assists agencies to identify barriers to equal opportunity and develop plans to eliminate such barriers.

EEO Plans often include an element of training, and under Title VII, EEOC is required to offer technical assistance and training regarding the laws and regulations it enforces.[8]  Accordingly, EEOC engages in training, outreach, and education efforts aimed at federal agencies, federal employees, and other federal sector stakeholders.

EEOC has also been given authority under Executive Orders to coordinate and lead the federal government's efforts to combat workplace discrimination.[9]

II Quality Practices for EEOC's Federal Hearings and Appeals

A. Quality Practices for Effective Hearings

1. EEOC assesses hearing requests, provides information to the parties regarding the hearings process, and establishes a schedule for the proceedings.
   • Upon receipt of a request for hearing, EEOC communicates information regarding the EEOC hearings process to the parties.
   • After cases are assigned, an Administrative Judge (AJ) assesses the case and conducts an initial conference with the parties, as called for in EEOC's Case Management Plan. 
   • During the initial conference, the AJ clarifies the issues and bases in the case, explains the hearings process that will be used in the particular case, pursues settlement options, establishes a process for timely and efficient discovery (if discovery is needed), and addresses other issues that may arise during the hearing process.
   • Following the initial conference, the AJ issues an order making relevant rulings as needed and setting forth a schedule, deadlines, and other instructions to the parties. 
   • EEOC identifies and tracks hearings consistent with current EEOC priorities from the Federal Sector Complement Plan.
   • The AJ encourages mediation and other opportunities to settle complaints throughout the hearing process.
2. EEOC ensures completion of the case record and manages the process to ensure timely case adjudication.
   • During the initial conference, if not before, the AJ notifies parties of the right to seek additional information through the discovery process and issues appropriate discovery orders to ensure the record is adequate to render a decision on the complaint.
   • When appropriate, the AJ may order the parties to provide whatever additional information the AJ determines is necessary to decide the case.
   • The AJ actively manages the discovery process to move the case towards a timely resolution.
   • The AJ applies appropriate sanctions against the parties, when warranted, after giving the parties an opportunity to respond to a notice to show cause why sanctions should not be imposed.
3. EEOC issues decisions on summary judgment if no material facts are in dispute. 
   • If there are no material facts in dispute, the AJ grants a motion for a decision without a hearing, i.e., a motion for summary judgment, and decides the case by applying the law and current EEOC precedent to the undisputed facts.
   • Either party may move for summary judgment, to which the AJ must allow the non-moving party an opportunity to timely respond, and thereafter allow the moving party an opportunity to reply.   
   • If the AJ determines that summary judgment is appropriate in the absence of a motion, the AJ gives notice to the parties of the reason for that determination and provides the parties with a reasonable opportunity to respond.
   • The AJ issues a summary judgment decision within a reasonable time after summary judgment motions and responses are filed that sets forth the facts not in dispute and explains the rationale for summary judgment.
   • When material facts are in dispute, the AJ denies, in whole or in part, any motion for summary judgment and proceeds with further discovery or hearing preparation, as appropriate.
4. EEOC conducts an objective hearing on issues in the complaint when material facts are in dispute.         
   • The AJ notifies the parties when a complaint is ready for hearing and schedules a date, time, and location for the hearing.
   • The AJ communicates to the parties how documents will be admitted and testimony taken at the hearing.
   • The AJ responds to outstanding motions prior to the start of the hearing.
   • The AJ ensures the hearing proceeds fairly and as expeditiously as possible.
   • The AJ make accurate rulings on evidentiary issues that arise at the hearing.
5. EEOC issues a decision on the merits consistent with the law and EEOC precedent. 
   • The AJ issues a decision on the complaint within a reasonable time after completion of the hearing in light of the complexity of the case and whether it involves issues of first impression or other evolving or unsettled issues.
   • The AJ's decision addresses all issues and bases in the complaint and correctly applies the law and EEOC precedent.
   • If the complainant prevails on any issue in the complaint, the AJ's decision sets forth an appropriate remedy.
   • The AJ issues a clearly written decision or a clearly articulated oral "bench" decision that become part of the hearing transcript.
   • The AJ closes the matter by issuing an Order of Judgment, a decision, and a Notice of Appeal Rights to the parties, along with a complete record of the hearing's proceedings.

B. Quality Practices for Effective Appeals

1. EEOC dockets and acknowledges appeals, communicates with parties, and obtains an adequate record from the federal agency named in the EEO complaint. 
   • Staff acknowledge receipt of an appeal, notifies the parties of the deadline for the electronic submission of the complaint record by the responsible agency, provides the briefing schedule for the submission of arguments on appeal, and notifies the parties how to obtain status updates on the appeal.
   • If an agency fails to provide a complete complaint record on appeal within the regulatory timeframe, staff follow up to secure the record.
   • If staff cannot obtain requested information and otherwise cannot complete the record after several attempts, they will refer the case to the appropriate unit for potential imposition of sanctions for the party's failure to provide requested information.
2. EEOC identifies and tracks cases consistent with the Federal Sector Complement Plan and manages inventory to facilitate efficient allocation of staff resources.
   • EEOC Staff conduct an initial assessment of every appeal for which there is a complete record.
   • Appeal assessments are used to allocate attorney resources, including prioritization of appeals from agencies' procedural dismissals, appeals where there has been a finding of discrimination, decisions regarding class certifications, and appeals from the Merit Systems Protection Board.
3. EEOC issues appellate decisions based on the record, the arguments of the parties, and applicable law and EEOC precedent.
   • An attorney conducts a complete and objective review of the administrative complaint file, investigative report, hearing record, and statements/briefs submitted on appeal.
   • The attorney allocates a reasonable amount of time to the decision in light of the complexity of the case and whether it involves issues of first impression or other evolving or unsettled issues.
   • The decision is procedurally and factually accurate, reflects an appropriate application of the law and EEOC precedent, is supported by evidence in the record, and provides the complainant with appropriate relief if discrimination is found.
   • If the decision finds discrimination or otherwise contains an order, it effectively communicates to the federal agency the actions that are necessary to ensure proper compliance with the order.
   • The decision by the OFO Appellate Attorney clearly informs the complainant of her or his subsequent procedural rights.
4. EEOC monitors and facilitates agency compliance with appellate orders.
   • Following the issuance of an appellate decision containing an order of relief or further processing, staff notifies the parties of EEOC's compliance monitoring procedures and provides his or her contact information.
   • Staff communicate regularly with the parties to obtain updates on the status of compliance efforts and to evaluate the need for EEOC intervention to obtain compliance. 
   • If initial compliance efforts are unsuccessful, staff refer the file for a decision of whether EEOC should open a petition for enforcement. 
   • EEOC refers certain matters to the U.S. Office of Special Counsel for potential disciplinary action as appropriate, consistent with the agencies' Memorandum of Understanding.

III. Quality Practices for EEOC's Oversight of Federal Agencies

1. EEOC reviews and approves federal agencies' affirmative employment plans.
   • EEOC Staff review an agency's EEO Management Directive 715 (MD-715) report with a goal of helping agencies attain Model EEO Programs.
   • EEOC Staff provide feedback to the federal agency, as appropriate, through various means, including written letters and/or technical assistance visits.
   • Following review of the report, consultation with the agency (including technical assistance as appropriate), and attempts to secure changes to the agency's programs, staff recommend approval or disapproval of the agency's report.
   • When deemed appropriate, the Office of Federal Operations recommends to the Chair that s/he issue a public notice concerning the agency's noncompliance with existing EEO requirements as detailed in 29 CFR 1614.102(e).
2. EEOC reviews and evaluates federal agencies' complaint processes.
   • Staff review agency data on pre-complaint counseling, Alternative Dispute Resolution, and complaint processing from the No Fear Act and other reporting for trends in complaints raised, findings made, excessive processing times, or other information that may indicate problems with the agency's EEO program.
   • Staff use analytics and technological tools to conduct statistical and other analyses on the collected data to provide feedback to the agency and to provide data analyses to the Commission.
3. EEOC helps federal agencies assess the effectiveness and efficiency of their EEO programs and identify potential barriers to equal employment opportunity.
   • EEOC conducts an impartial and efficient evaluation of an agency's EEO program in response to stakeholder concerns, workforce data anomalies, information gathered in MD-715 reports, and/or EEO complaint processing issues and concerns.
   • EEOC identifies issues raised during the administrative adjudication processes to inform the need for an evaluation of an agency's EEO program.
   • EEOC provides advance notice to federal agencies of program evaluations involving their EEO programs and/or any follow-up activities. 
4. EEOC uses training and outreach to help federal agencies improve their EEO programs. 
   • EEOC creates and delivers fee-paid training tailored to federal sector stakeholders that is consistent with current EEOC policy and applicable laws.
   • EEOC uses feedback from participants to evaluate and enhance the quality and impact of the training.  
   • EEOC provides non-fee based outreach to federal sector stakeholders through participation in conferences, meetings, and other events.

APPENDIX
DEVELOPMENT OF FEDERAL SECTOR QUALITY PRACTICES

The U.S. Equal Employment Opportunity Commission's Strategic Plan for Fiscal Years 2012 - 2016 provides for the development of a Federal Sector Quality Control Plan to guide staff in their adjudicatory and oversight responsibilities.  This Federal Sector Quality Practices (FSQP) issuance fulfills that objective, and follows the publication of a plan for Quality Enforcement Practices (QEP) to govern EEOC's private sector charge investigations and conciliations. 

The FSQP was developed by an internal workgroup appointed by Chair Jenny Yang and modeled in part on the private sector QEP workgroup appointed by former Chair Jacqueline Berrien. The FSQP workgroup included leaders from the Office of Federal Operations and Office of Field Programs, a Field Office Director, several Supervisory Administrative Judges, and a representative from both the employee union and the Office of the Chair.

The workgroup conducted a comprehensive review of existing literature about the federal sector process and the EEOC's efforts in particular, including General Accountability Office Reports, testimony from past Commission meetings, public comments submitted in notice and comment rulemaking concerning the federal sector process, public input on draft guidance matters, and letters from stakeholders suggesting improvements for federal sector processing.  The workgroup also conducted an internal survey of EEOC staff to gather information on the hallmarks of quality in federal sector EEOC work.

The FSQP was reviewed and refined by the Commission and was enacted on January 17, 2017.

[1] These Federal Sector Quality Practices (FSQP) will not be construed as creating any right or benefit, substantive or procedural, enforceable at law or in equity against the EEOC or its employees.  The FSQP will not be construed to create any right to judicial review involving the compliance or noncompliance of the EEOC or its employees with any matter dealt with in the FSQP. The FSQP is not intended and should not be construed by any party as a basis to determine whether a particular hearing or appellate review was adequate, or whether a particular decision was justified.

[2]  42 U.S.C. § 2000e-16(a) (requiring under Title VII that personnel actions affecting federal employees "shall be made free from any discrimination based on race, color, religion, sex, or national origin"); 29 U.S.C. § 633(a) (requiring under the ADEA that all personnel actions affecting workers 40 and older "shall be made free from any discrimination based on age"); 29 U.S.C. § 791 (prohibiting employment discrimination on the basis of disability in federal employment under the standards applied under title I of the Americans with Disabilities Act of 1990 and requiring affirmative action by agencies in employment of people with disabilities);  42 U.S.C. § 2000ff; 2000ff-6 (defining employer and employee as including entities and workers covered by Title VII's federal sector prohibitions and giving EEOC the same responsibilities as it has under 42 U.S.C. § 2000e-16(b)).

[3]  42 U.S.C. § 2000e-16(b) (providing EEOC with authority to review and evaluate all agency equal employment opportunity programs); 29 U.S.C. § 633a(b) (same under ADEA); 29 U.S.C. § 791(b) (same under Section 501); 42 U.S.C. § 2000ff-6 (same under GINA).  EEOC's Management Directive 715 provides further details on agencies' responsibilities for purposes of EEOC's review and oversight functions.

[4]  See 29 C.F.R. § 1614.105 to  § 1614.108 (2016) (setting requirements for agency investigations of EEO claims); EEOC's Management Directive 110, https://www.eeoc.gov/federal/directives/md110.cfm

[5]  See 29 C.F.R. § 1614.109 (outlining the administrative hearing process). To maintain the benefit of independent administrative judges from outside of the respondent agency to preside over hearings, EEOC maintains interagency agreements for adjudicators at other agencies to handle the hearing requests of EEOC employees.

[6]  See 29 CFR § 1614.407 - .409 (detailing circumstances for filing a civil action and the effect of such a filing on the administrative complaint process).

[7]  See supra n. 3.

[8]  42 U.S.C. § 2000e-16(j) ("The Commission shall establish a Technical Assistance Training Institute, through which the Commission shall provide technical assistance and training regarding the laws and regulations enforced by the Commission.")

[9]  See Exec. Order No. 12067 (1978).