Annual Report on the Federal Work Force Part I EEO Complaints Processing Fiscal Year 2012

Table of Contents

PREFACE

EXECUTIVE SUMMARY

I. SUMMARY OF EEO STATISTICS IN THE FEDERAL GOVERNMENT

Section A. Integration of EEO Into Agencies' Strategic Mission

1. 71% of Agency EEO Directors Report to Agency Head
2. 96% of Agencies Provided their EEO staff with Required Training

Section B. Efficiency in the Federal EEO Process

1. Federal Agency EEO Programs: Complaints Decrease and Processing Times Continue to Exceed Regulatory Deadlines
2. EEOC Hearings and Appeals: Processing Times Increase For Hearings and Appeals

Section C. Responsiveness and Legal Compliance

1. 92% of Submitted EEOC Form 462 Reports Were Timely

II. PROFILES FOR SELECTED FEDERAL AGENCIES

APPENDIX I GLOSSARY / DEFINITIONS

APPENDIX II FEDERAL SECTOR EEO COMPLAINT PROCESSING PROCEDURES

APPENDIX III FEDERAL AGENCIES' PROGRAM STATUS

APPENDIX IV FEDERAL EEO COMPLAINTS PROCESSING TABLES
(Actual tables are also available on the EEOC's website at http://www.eeoc.gov/federal/reports/fsp2012/index.cfm)

PREFACE

The United States Equal Employment Opportunity Commission (EEOC or Commission) was established by Title VII of the Civil Rights Act of 1964, (Title VII), as amended, with the original mission of eradicating discrimination in employment on the bases of race, color, religion, sex, and national origin. Since 1964, EEOC's role has expanded beyond Title VII. In the federal sector, the agency currently has responsibilities under the following nondiscrimination laws as well:

• the Equal Pay Act of 1963 (EPA), as amended, which prohibits employment discrimination on the basis of gender in compensation for substantially similar work performed under similar conditions;
• the Age Discrimination in Employment Act of 1967 (ADEA), as amended, which prohibits employment discrimination on the basis of age (40 years of age and older);
• the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, which prohibits employment discrimination against federal employees and applicants with disabilities, and requires that reasonable accommodations be provided; and
• the Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits employment discrimination on the basis of genetic information.

EEOC's Office of Federal Operations (OFO) adjudicates discrimination complaint appeals in the federal sector and monitors federal agency compliance with equal employment opportunity (EEO) laws and procedures. OFO also reviews and assesses the effect of federal 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 in 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.

Part I of the report covers the period from October 1, 2011, through September 30, 2012 and contains selected measures of agencies' progress toward achieving the following elements of model EEO programs: the integration of EEO into the agency's strategic mission, efficiency, and responsiveness and legal compliance elements of model EEO programs.¹

Part II of the report, will be published at a later date, and will contain selected measures of progress made by agencies in FY 2011 and 2012 toward the demonstrated commitment from agency leadership, integration of EEO into the agency's strategic mission, management and program accountability, proactive prevention of unlawful discrimination, and responsiveness and legal compliance elements of model EEO programs.² Working within our mission to provide oversight and guidance, EEOC strives to create partnerships within the federal community.

The fiscal year (FY) 2012 Annual Report on the Federal Work Force Part I, submitted to the President and Congress, presents a summary of selected EEO program activities of 71 federal agencies. The report provides valuable information to all agencies as they strive to become model employers.

In preparing this report, EEOC relied on the following: 1) EEO complaint processing data submitted and certified as accurate by 357 federal agencies and subcomponents in their FY 2012 Federal Equal Employment Opportunity Statistical Report of Discrimination Complaints (EEO Form 462 reports) - note the Election Assistance Commission (EAC) and the Federal Retirement Thrift Investment Board (FRTIB) did not file a FY 2012 EEO Form 462 report; and 2) hearings and appeals data obtained from EEOC's internal databases.³

The Commission would like to extend its thanks to those agencies that timely submitted accurate and verifiable EEO complaint processing data. 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.

As in the past, agencies were provided an opportunity to review the draft of this report. The Commission thanks those agencies that responded with useful comments and suggestions.

EXECUTIVE SUMMARY

STATE OF EEO COMPLAINT PROCESSING IN THE FEDERAL GOVERNMENT

• In FY 2012, 71% of agencies (with 100 or more employees) required to file a FY 2012 Form 462 reported compliance with MD-715's requirement that the EEO Director reports directly to the Head of the agency.
• 96% of agencies (with 100 or more employees) required to file a FY 2012 Form 462 reported they provided some of their EEO staff with the required training in FY 2012.
• Pre-complaint EEO counseling and alternative dispute resolution (ADR) programs addressed many employee concerns before they resulted in formal EEO complaints. Of the 34,521 instances of counseling in FY 2012, 54.2% did not result in a formal complaint, due either to settlement by the parties or withdrawal from the EEO process.
• In FY 2012, 15,026 individuals filed 15,837 complaints alleging employment discrimination against the federal government.
• The number of complaints filed decreased by 6.7% over the previous year and there was a 4.9% decrease in the number of individuals who filed complaints over the same period. In FY 2012, 5.1% of the complaints were filed by individuals who had filed at least one other complaint during the year, down from the 6.9% in FY 2011.
• Government-wide, a total of 10,226 investigations were completed in an average of 187 days in FY 2012. There were 74.9%, of the investigations (7,660) timely completed, up slightly from FY 2011's 74.7% timely completion rate. Without the United States Postal Service's (USPS) investigations, the government-wide average was 66.4%, which is an increase from the 65.3% timely completion rate in FY 2011.
• Agencies issued 4,118 merit decisions without a decision by an EEOC Administrative Judge, and 48.6% were timely issued (2,003), down from 56.5% timely issued in FY 2011. Without the USPS' merit decisions, the government-wide average dropped to 31.1%.
• EEOC's hearing receipts decreased from 8,113 in FY 2011 to 7,728 in FY 2012, down by 4.7%. The average processing time for a hearing was 370 days, a 7.2% increase from FY 2011's average of 345 days.
• EEOC's appeal receipts decreased from 5,176 in FY 2011 to 4,350 in FY 2012, down by 15.9%. The average processing time for appeals in FY 2012 was 361 days, a 4.5% decrease from the 378 days in FY 2011.
• As a result of final agency decisions, settlement agreements, and final agency actions fully implementing EEOC Administrative Judges' decisions, agencies paid monetary benefits to EEO complainants totaling $51.4 million in FY 2012, up 18.2% from the $43.5 million paid in FY 2011. An additional $10.8 million was paid out in response to appellate decisions, a 17.4% increase from the $9.2 million paid out in FY 2011.
• In FY 2012, EEOC's training and outreach program reached 2,440 federal employees through 95 sessions.
• In FY 2012, EEOC Form 462 reports were timely filed by 92% of the agencies (with 100 or more employees) that were required to submit an EEOC Form 462 report (90 of 98).

I. SUMMARY OF EEO STATISTICS IN THE FEDERAL GOVERNMENT

Section A - 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. Two aspects of this Section are highlighted below.

1. 71% 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 policies." 29 C.F.R. §1614.102(a). To implement its program, each agency must 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 98 agencies with 100 or more employees that were required to submit an EEOC Form 462 report in FY 2012, 71.4% (70) indicated that their EEO Director reports to the agency head, down from the 73.6% reported in FY 2011 and up from the 64.9% reported in FY 2008. Figure 1 below shows a five-year trend. See Appendix III for a detailed list of agencies' status.

Figure 1 - Percentage of EEO Directors Who Report Directly to the Agency Head FY 2008 - FY 2012

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2. 96% of Agencies Provided Some of 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 Management Directive 110 for 29 C.F.R. Part 1614, as revised November 9, 1999 (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 98 agencies with 100 or more employees that were required to file an EEOC Form 462 report in FY 2012, 96% ensured that some of their EEO staff received the required regulatory training, less than the 97.8% that reported in FY 2011. See Appendix III for a detailed list of agencies' status. Agencies ensured or provided training for 1,324 new EEO counselors and 433 new EEO investigators. Agencies also ensured or provided the required eight hour annual refresher training to 3,185 EEO counselors and 1,732 EEO investigators. Additionally, agencies reported ensuring or providing 88 EEO counselor/investigators with thirty-two hour training and 327 with eight hour training.

Section B - Efficiency in the Federal EEO Process

EEOC's regulations provide that each agency shall ensure 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 ranked in EEOC's Annual Report on the federal sector complaints process."

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

Agencies process EEO complaints from applicants' for federal employment and federal employees under EEOC's regulations at 29 C.F.R. Part 1614. Individuals unable to resolve their concerns through counseling can file a complaint with their agency.⁴ The agency will either dismiss⁵ 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.⁶

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 the OFO; 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 OFO. The complainant or agency may also request reconsideration of a decision on the appeal. At 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 adversarial, and lengthy, EEOC has encouraged agencies to promote and expand the use of alternative dispute resolution (ADR) as a means of avoiding the formal adjudicatory processes. Used properly, ADR can provide fast and cost-effective results while improving workplace communication and morale.⁷

a. Pre-Complaint Counselings and Complaints Decrease

From FY 2011 to FY 2012, the number of completed counselings decreased by 5.8% and by almost 11.3% since FY 2008. Formal complaints decreased by 6.7% from FY 2011 to FY 2012 and by 5.5% since FY 2008. Among the 34,521 completed counselings, 15,026 individuals filed 15,837 formal complaints in FY 2012.⁸ The number of formal complaints filed represents 45.9% of all pre-complaint counseling activities in FY 2012. As Figure 2 shows, over the past five fiscal years, the number of pre-complaint counseling activities decreased from 38,898 in FY 2008 to 34,521 in FY 2012; and the number of complaints filed by individuals has declined over the past two-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 2. Significantly, while the United States Postal Service constituted 21.3% of the work force⁹, it accounted for 38.1% of all EEO counselings, 28.6% of all complaints filed, 26.0% of all completed investigations and 29.2% of all complaints closed in FY 2012. See Tables B-1, B-9 and B-10 in Appendix IV at http://www.eeoc.gov/.

Figure 2 - Completed Counseling to Formal Complaints Filed/Complainants FY 2008 - FY 2012

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Table 1 below shows that among the cabinet/large (15,000 or more employees) agencies in FY 2012, the U.S. Postal Service again reported the highest percentage (1.9%) of its work force that completed counseling, while the government-wide average was 1.1%. Among the medium sized agencies (1,000 to 14,999 employees), Government Printing Office reported the highest percentage (2.8%) 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 IV lists this information for all agencies and is located at http://www.eeoc.gov/.

Table 1 - Agencies with the Highest Counseling Rate in FY 2012

* Work force numbers as reported by the agency in its FY 2012 462 report.

As shown in Table 2 below, in FY 2012, among the cabinet/large agencies (15,000 or more employees), the Department of Labor reported the highest complainant rate of 0.8%, while the government-wide average was 0.5%. Among the medium sized agencies (1,000 to 14,999 employees), the Government Printing Office again reported the highest complainant rate of 1.2%. Agencies that had fewer than 25 complaints filed were not included in the ranking. Table B-1 in Appendix IV contains this information for all agencies and is located at http://www.eeoc.gov/.

Table 2 - Agencies with the Highest Complainant Rate in FY 2012

* Work force numbers as reported by the agency in its FY 2012 462 report.

b. Pre-Complaint ADR Usage - Rates Rise 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 2012 data with prior years' data is not possible.

In FY 2012, the government-wide offer rate was 85.7% based upon 29,577 ADR offers made in 34,522 completed/ended counselings, up from the 78% reported in FY 2011. The participation rate was 51.1%, based upon the 17,643 counselings accepted into agencies' ADR programs of the total completed/ended counselings, exceeding the 48.6% reported in FY 2011.

Thirty-four agencies had 100% offer rates in FY 2012. The agencies were the American Battle Monuments Commission, Broadcasting Board of Governors, Chemical Safety and Hazard Investigation Board, Commodity Futures Trading Commission, Consumer Product Safety Commission, Defense Army and Air Force Exchange, Defense Information Systems Agency, Defense Joint Task Force National Capital Region Medical, Defense National Security, Defense Office of Inspector General, Defense Technical Information Center, Defense Threat Reduction Agency, Department of Housing and Urban Development, Department of Labor, Export-Import Bank of the US, Farm Credit Administration, Federal Election Commission, Federal Labor Relations Authority, Federal Maritime Commission, Federal Reserve System-Board of Governors, Federal Trade Commission, Government Printing Office, International Boundary and Water Commission, International Trade Commission, John F. Kennedy Center for the Performing Arts, Merit Systems Protection Board, National Credit Union Administration, National Gallery of Art, National Indian Gaming Commission, Nuclear Regulatory Commission, Office of Government Ethics, Peace Corps, Pension Benefit Guaranty Corporation, and the Smithsonian Institution.

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

In FY 2012, the U.S. Postal Service again reported the highest ADR participation rate in the pre-complaint process (69.9%) among the cabinet/large agencies, while the government-wide average was 51.1%. Among the medium sized agencies, the Smithsonian Institution reported the highest pre-complaint ADR participation rate (86.8%). The government-wide average falls to 39.9% without the U.S. Postal Service. See Table 3. Agencies that had fewer than 25 completed/ended counseling were not included in the ranking. See Tables B-1 and B-4 in Appendix IV for information on all agencies, which is located at http://www.eeoc.gov/.

Table 3 - Highest ADR Participation Rate in the Pre-Complaint Process FY 2012

* Work force numbers as reported by the agency in its FY 2012 462 report.

c. Agencies Meet Counseling Deadlines in 92.9% of Cases

On average in FY 2012, agencies met timeliness requirements for EEO counseling in 92.9% of all completed/ended counselings, which was a slight increase from 92.8% in FY 2011 and from the 91.2% in FY 2008. 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 Up Slightly in FY 2012

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 2012, the government-wide resolution rate average was 53.4%, up slightly from 53.1% in FY 2011.

The National Archives and Records Administration Holds the Highest Pre-Complaint Resolution Rate

In FY 2012, the National Archives and Records Administration, a medium sized agency, reported the highest pre-complaint resolution rate (87.9%) among all agencies with more than 25 completed/ended counselings. Among cabinet/large agencies, Defense National Guard Bureau reported the highest pre-complaint resolution rate (71.7%). See Table 4. Agencies that had fewer than 25 completed/ended counselings were not included in the ranking. However, nine agencies, Defense Technical Information Center, Farm Credit Administration, Federal Election Commission, Federal Trade Commission, International Boundary and Water Commission, National Indian Gaming Commission, Office of Government Ethics, Overseas Private Investment Corporation and the Postal Regulatory Commission, in this category had 100% resolution rates. Table B-3 in Appendix IV contains this information for all agencies and is located at http://www.eeoc.gov/.

Table 4 - Highest Pre-Complaint Resolution Rates FY 2012

* Work force numbers as reported by the agency in its FY 2012 462 report.

The Defense National Guard Bureau Had the Highest ADR Resolution Rate in FY 2012

In FY 2012, the Defense National Guard Bureau reported the highest ADR resolution rate in the pre-complaint process (91.5%) among those agencies with 25 or more ADR closures, whereas the government-wide average was 63%. Among the medium sized agencies, the Defense Finance and Accounting Service reported the highest pre-complaint ADR resolution rate (65.5%). See Table 5. The government-wide ADR resolution rate decreased to 49.7% for FY 2012, when the U.S. Postal Service resolution rate (75.2%) is excluded from the government-wide average, which was down from the 50.9% in FY 2011. Agencies that had fewer than 25 ADR closures were not included in the ranking. Table B-5 in Appendix IV contains this information for all agencies and is located at www.eeoc.gov/.

Table 5 - Highest Pre-Complaint ADR Resolution Rates FY 2012

* Work force numbers as reported by the agency in its FY 2012 462 report.

e. Average Monetary Benefits in Pre-Complaint Phase Declined

Monetary benefit amounts awarded in settlements during the pre-complaint phase, shown in Table 6, declined in FY 2012 from the FY 2008 amounts while the number of settlements with monetary benefits increased in FY 2012. The data showed a decrease in the average amount of monetary benefits from $4,853 in FY 2011 to $4,652 in FY 2012.

Table 6 - Monetary Benefits Awarded In Settlements During the Pre-Complaint Stage of the EEO Process FY 2008 - FY 2012

f. The Most Frequently Alleged Basis and Issue Remain Unchanged

Of the 15,837 complaints filed in FY 2012, the basis most frequently alleged was reprisal/retaliation (7,457) and the issue most frequently alleged was non-sexual harassment (5,991). As shown in Tables 7 and 8, this has remained unchanged for the past five fiscal years. In FY 2012, the number of complaints filed with allegations of race (Black/African American) once again exceeded those complaints filed with allegations of disability (physical).

An agency may not take an adverse action or otherwise "retaliate" against applicants or employees because they engaged in a protected activity. See EEOC's Facts About Retaliation for examples of adverse actions, protected activities and other guidance on retaliation.

Table 7 - Top 3 Bases in Complaint Allegations Filed for FY 2008 - FY 2012

In FY 2012, allegations of race discrimination were made in 37.5% of all complaints, equal to the 37.5% of all complaints filed in FY 2011. In FY 2012, there was a 5.5% decrease in the number of complaints filed since FY 2008, and the percentage of complaints alleging discrimination based on race also decreased by 5.3%. During that same period, the percentage of complaints filed alleging discrimination based on color increased 11.6%, from 1,653 in FY 2008 to 1,844 in FY 2012.¹⁰

Table 8 - Top 3 Issues in Complaint Allegations Filed for FY 2008 - FY 2012

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 Compliance Manual Section 15: Race and Color Discrimination.

g. The Number of Timely Investigations Falls and Agencies Continue to Exceed Time Limits for Issuing Final Agency Decisions

Investigations

Investigations into claims 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 an extension of no more than 90 days (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 2012, agencies timely completed investigations 74.9% of the time, up from 74.7% in FY 2011 (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 also increased to 66.4% government-wide from the 65.3% timely completed in FY 2011. Agencies' average time to complete investigations increased from 183 days in FY 2011 to 187 days in FY 2012, leaving the FY 2007 reported average of 176 days as the best time for the previous twenty years.¹¹ See Figure 3 below.

Figure 3 - Average Processing Days for Investigations for FY 2008 - FY 2012

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Of those investigations required to be completed within the 180-day time limit, agency in-house investigators averaged 220 days to complete the investigation in FY 2012, while contract investigators averaged 170 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,¹² 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.

Four Agencies Timely Completed 100% of Investigations¹³

Among the agencies which completed 25 or more investigations in FY 2012, the Department of Education, Federal Deposit Insurance Corporation, Office of Personnel Management and the Tennessee Valley Authority all timely completed 100% of their investigations. See Table 9 below. Among cabinet or large agencies, the US Postal Service timely completed 99.0% of its 2,660 investigations in FY 2012. Agencies that had completed fewer than 25 investigations were not included in the ranking. Table B-9 in Appendix IV contains this information for all agencies and is located at http://www.eeoc.gov/.

Table 9 - Highest Percentage of Timely Completed Investigations for FY 2012

In FY 2012, the government-wide average cost for contracting out complaint investigations was calculated at $2,811.07, a 5.3% decrease from the FY 2011 average cost of $2,968.99. Likewise, the FY 2012 average cost of agency (in-house) investigations ($7,156.72) decreased 8.1% from the FY 2011 average cost of $7,789.23. Average costs to contract out investigations in FY 2012 were approximately 60.7% less than the average costs of agency (in-house) investigations, which represent a decrease from 61.9% in FY 2011.

Final Agency Actions

EEOC regulations require an agency to take a final action on each formal complaint filed. Table 10 below provides a breakdown, with processing times, 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. In FY 2012, the government-wide average processing time for issuing a decision dismissing a complaint on procedural grounds was 92.5 days, an increase from FY 2011's 72.7 days but less than FY 2010's 100.2 day average processing times. EEOC maintains that, in general, acceptance letters/dismissal decisions should be issued well in advance of the 180 day time limit for completing an investigation, and has suggested a more practical time would be within 60 days of the filing of the formal complaint.

Table 10 - EEO Complaint Closures by Type with Government-Wide Average Processing Times in Days (APD) in FY 2008 - FY 2012

An agency may also issue a decision after an investigation, either finding discrimination or finding no discrimination. In FY 2012, agencies timely issued 48.6% of their final agency merit decisions, a decrease from the 56.5% timely completed in FY 2011. 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 2012, agencies issued merit final agency decisions without an Administrative Judge's decision in an average of 144 days, up from 128 days in FY 2011.

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

In FY 2012, the Department of the Navy reported it had issued 100% of its merit decisions without an EEOC Administrative Judge decision in a timely manner. The FY 2012 government-wide average for timely issued merit decision percentage was 48.6% with the U.S. Postal Service and dropped to 31.1% without the U.S. Postal Service. See Table 11 below.¹⁴ Agencies that issued fewer than 25 merit decisions without a hearing were not included in the ranking. For information on all agencies, see Table B-14 in Appendix IV located at http://www.eeoc.gov/.

Table 11 - Agencies with the Highest Percentage of Timely Issued Merit Decisions (Without an Administrative Judge Decision) in FY 2012

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 the decision and simultaneously appealing to EEOC. In FY 2012, agencies issued 2,708 final orders implementing and 35 orders not implementing the Administrative Judges' procedural and merit decisions. 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 2012, agencies issued orders on Administrative Judge merit decisions in an average of 713 days after the complaint was filed, an increase from 674 days in FY 2011 and from the 590 days in FY 2008.

h. Percentage of Findings of Discrimination and Average Monetary Benefits Decrease

In FY 2012, the percentage of findings of discrimination increased to 3.1% from the 2.9% in FY 2011. Table 12, however, shows that the total number of merit decisions decreased while the number of settlements increased in FY 2012.

Table 12 - Amounts Awarded in Resolution of Formal EEO Complaints Before Appeals FY 2008 - FY 2012

Average monetary benefits awarded in resolution of formal EEO complaints increased by 9.9% between FY 2011 and FY 2012, but decreased by 0.9% since FY 2008. Table 12 above shows the total monetary benefits awarded during the formal complaint process for the past five fiscal years, while Figure 4 below indicates the portion of these benefits awarded for compensatory damages, attorney's fees and lump sum payments, respectively.

Figure 4 - Monetary Benefits Awarded in the Formal Complaint Stage FY 2008 - FY 2012

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i. Affirmation Rate of Final Agency Decisions on Appeal Fell

As demonstrated by Table 13 below, 63.9% of final agency decisions (FADs), excluding those in which an Administrative Judge issued a decision, were affirmed on appeal in FY 2012. This represents a 10.5% decrease from the FY 2011 affirmation rate and a 13.5% decrease from the FY 2008 affirmation rate.

Table 13 - Affirmation Rate of Final Agency Decisions on Appeal FY 2008 - FY2012

Some of the totals have been corrected from totals reported in previous Annual Reports.

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 an applicant for federal employment or 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 adjudicating appeals from final actions issued by federal agencies on complaints of employment discrimination. These final actions may involve an agency's decision to dismiss procedurally 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 implement fully 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 made by the Merit Systems Protection Board involving claims of discrimination 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 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, which includes conducting program reviews throughout the federal government to evaluate agencies' efforts to develop and maintain model EEO programs. OFO also 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 training and with staff from various EEOC offices throughout the country, delivers these courses to federal agencies and other interested parties on a wide variety of federal-sector EEO topics.

a. HEARINGS

i. Hearings Inventory Continues to Rise

The year-end hearings inventory grew from 8,036 in FY 2011 to 8,146 in FY 2012, which represents an increase of 1.4%. Since FY 2008, the hearings inventory has increased 25.6%.

Figure 5 - Hearings Inventory FY 2008 - FY 2012

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ii. Hearing Requests Decrease

Hearing requests decreased by 4.7% from 8,113 in FY 2011 to 7,728 in FY 2012, and decreased by 3.8% since FY 2008. For comparison purposes, the 7,728 hearings requested comprised 48.8% of the total complaints filed in FY 2012.

Figure 6 - Comparison of Requests for EEOC Hearings to Complaints Filed FY 2008 - FY 2012

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iii. Hearing Closures

During FY 2012, EEOC's Hearings Program resolved 7,538 cases (including 28 class actions), which represents a 1.7% decrease from the 7,672 cases resolved in FY 2011 and a 5.6% increase from the 7,138 cases closed in FY 2008. Excluding the class actions, the 7,510 individual cases in FY 2012 were closed in the following manner: 9.6% were by decision following a hearing; 28.1% were by decisions on the record; 31.2% were closed by settlements; 12.3% were by procedural dismissal; and 18.9% were withdrawals. See Table 14 for a comparison of FY 2008 - FY 2012.

Table 14 - Hearings Program Individual Case Closures: FY 2008 - FY 2012

iv. Average Processing Time for Hearings

The average processing time for hearing closures increased from 345 days in FY 2011 to 370 days in FY 2012, and also represents an increase from the 262 days in FY 2008. The average age of the pending inventory increased to 395 days in FY 2012 from 383 days in FY 2011, and also exceeded the 332 days in FY 2008.

Figure 7 - Average Processing Days for Hearings FY 2008 - FY 2012

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v. Agencies Challenge Findings of Discrimination

In FY 2012, EEOC Administrative Judges issued 148 decisions finding discrimination, which was 5.2% of all decisions on the merits of complaints. In comparison to the 164 decisions finding discrimination that Administrative Judges issued in FY 2011, the 148 decisions in FY 2012 represents a 9.8% decrease. Agencies may either fully implement the Administrative Judge's decision or not fully implement and simultaneously appeal the Administrative Judge's decision to the OFO. In FY 2012, agencies appealed only 1.3% of all Administrative Judge decisions. However, they appealed 20.0% of the cases where an Administrative Judge found discrimination.

Table 15 - Agency Actions on Administrative Judge Decisions FY 2008 - FY 2012

vi. Monetary Benefits Decrease at Hearings

In FY 2012, Administrative Judges' decisions and settlements at the hearings stage awarded $61.8 million in benefits, as compared to the $58 million in FY 2011 and the $104.7 million awarded in FY 2008. 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.

Figure 8 - Monetary Benefits Awarded from Hearings (In Millions of Dollars) FY 2008 - FY 2012

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

vii. Affirmation Rate of AJ Decisions on Appeal Drops Slightly

As demonstrated by the table below, 89.3% of Administrative Judges' decisions were affirmed on appeal in FY 2012.¹⁶ The number of appealed Administrative Judges' decisions decreased 35.4% over the five year period between FY 2008 to FY 2012; the affirmation rate also fell by 38.8% during this time period.

Table 16 - Affirmation Rate of AJ Decisions on Appeal FY 2008 - FY 2012

b. APPEALS

i. Appeals Inventory Increases

OFO's appellate inventory, at the close of FY 2012 rose to 4,422, which represents a 1.9% increase from the 4,337 case inventory at the close of FY 2011 and a 35% increase from the 3,275 case inventory at the close of FY 2008.

Figure 9 - Appellate Inventory FY 2008 - FY 2012

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ii. Appeal Receipts On the Decline

OFO received 4,350 appeals in FY 2012, representing a 15.9% decrease from the 5,176 appeals filed in FY 2011. FY 2012 appeal receipts represented a 14.4% decrease from the 5,082 appeals received in FY 2008. In FY 2012, 27.7% of closed complaints were appealed, which was less than the 30.5% in FY 2008.

Figure 10 - Comparison of Appeals Receipts to Complaint Closures FY 2008 - FY 2012

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iii. Appeal Closures Down

OFO closed a total of 4,265 appellate cases in FY 2012, slightly fewer than the 4,510 appellate cases closed in FY 2011. Of the FY 2012 closed cases, 2,830 (66.4%) alleged violations of Title VII; 1,077 (25.3%) involved the Rehabilitation Act; 1,052 (24.7%) alleged violations of the ADEA; and 17 (0.4%) involved the Equal Pay Act of 1963. In FY 2011, OFO closed a total of 4,510 appellate cases, of which 2,793 were Title VII cases (61.9%); 1,212 involved the Rehabilitation Act (26.9%); 1,084 alleged violations of the ADEA (24.0%); and 16 involved the Equal Pay Act of 1963 (0.4%).¹⁸ See Figure 11 for the appeal closures from FY 2008 to FY 2012.

Figure 11 - Appeal Closures FY 2008 - FY 2012

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Table 17 below provides a breakdown by appeal type of all FY 2012 appellate receipts and closures.

Table 17 - Types of Receipts and Appeals FY 2012

In FY 2012, OFO closed 1,735 appeals addressing the merits of the underlying discrimination claims, and made a total of 109 findings of discrimination, which represents 6.3% of the total. By comparison, in FY 2011, OFO closed 1,960 appeals addressing the merits of the underlying discrimination claims, and made a total of 87 findings of discrimination, which represented 4.4% of the total. In FY 2012, OFO reversed 31.5% of the 2,209 appeals of procedural dismissals.

iv. Average Processing Time of Appeal Closures

The average processing time for appeal closures fell to 361 days in FY 2012, representing a 4.5% decrease from 378 days in FY 2011 and a 29.9% increase from 278 days in FY 2008.

OFO resolved 2,258 (52.9%) of the 4,265 appeals closed in FY 2012 within 180 days. The average age of the pending inventory at the end of FY 2012 was 318 days, a 11.9% increase from the 284 day average age at the end of FY 2011 and a 7.1% increase from the 297 day average age of the open inventory at the end of FY 2008.

Figure 12 - Average Processing Days on Appeal FY 2008 - FY 2012

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*During FY 2011 OFO closed substantially more aged appeals than in recent fiscal years, resulting in the increase to average processing time and a corresponding decrease in the average age of the pending inventory.

v. Three Most Prevalent Bases and Issues on Appeal

Since FY 2007, reprisal has been the top basis of discrimination alleged in closed appeals. In FY 2012, sex was the second most alleged basis, with race as the third most prevalent basis of discrimination alleged in closed appeals. Harassment, promotion, and removal were the three most prevalent issues of discrimination alleged in closed appeals.

vi. $10.9 Million Awarded on Appeal

In FY 2012, the $10.9 million in monetary benefits awarded in compliance with appellate decisions (including settlement agreements resolving appeals) increased by 18.5% from the $9.2 million awarded in FY 2011 and a 11.4% decrease from the $12.3 million awarded in FY 2008.

Figure 13 - Monetary Benefits Awarded from Appeals ¹⁹ FY 2008 - FY 2012 (In Millions of Dollars)

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vii. Training and Outreach Conducted By EEOC

In FY 2012, 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 agency managers and supervisors with 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 95 training sessions reaching 2,440 federal employees, including 154 new EEO counselors, 150 new EEO investigators, and 249 EEO professionals in affirmative employment programs.

In an ongoing effort to provide the federal sector EEO community and stakeholders with timely and accurate information, OFO staff members responded to more than 8,168 calls concerning the federal sector EEO complaint process.

The Commission's training and outreach information can be found at http://www.eeoc.gov/federal/training/index.cfm.

Section C - Responsiveness and Legal Compliance

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

1. 92% of Submitted EEOC Form 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 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 Regulatory 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 2012, 90 or 91.8% of the 98 agencies (with 100 or more employees) timely submitted the EEOC Form 462 Report, up from the 90.1% timely submitted in FY 2011. In FY 2008 EEOC made the 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 November 5nd deadline to be considered timely.²⁰ See Appendix III for the list of agencies' FY 2012 report submission times.

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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.

²Id.

³ Certain agencies do not provide total work force numbers for national security reasons.

⁴ Matters 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.

⁵ There are several reasons an agency may dismiss a complaint, including the complainant's failure to state a claim, untimely contact with an EEO counselor, or that alleges a preliminary step to taking a personnel action is discriminatory. See 29 C.F.R. §1614.107(a).

⁶ 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).

⁷ See Marc Van Nuys, Return on Investment From Use of Alternative Dispute Resolution in Workplace Disputes, 1-14 (Army ADR Program).

⁸ Counseling may be provided via EEO Counselor or ADR Intake Officer.

⁹ Work force numbers as reported by the agency in its FY 2012 Form 462 report.

¹⁰ Complaints may contain multiple bases and issues.

¹¹ In 1993, agencies reported an average of 171 days to complete investigations.

¹² To include lengthy approval of investigative plans, or cumbersome procurement processes.

¹³ An additional 21 agencies which completed less than 25 investigations, timely completed 100% of their investigations.

¹⁴ We note that twenty other agencies issued 100.0% of their merit decisions in a timely fashion but issued fewer than 25 total merit decisions.

¹⁵ 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.

¹⁶ Administrative Judge's decisions reported here do not include Petitions for Enforcement or procedural cases.

¹⁷ "Appeal By Agency" occurs when the agency does not fully implement the Administrative Judge's decision.

¹⁸ 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.

¹⁹ It should be noted that Hearings Benefits should not be added to Appeals Benefits for a grand total, as Hearings Benefits are only preliminary.

²⁰ The deadline set by the Commission is October 31st, however due to severe weather the deadline was extended to November 5th, 2012. 21The 180-day statutory period for investigating complaints can be extended to no more than 360 days if the consolidation of two or more complaints occurs. See 29 C.F.R. § 1614.606.