Meeting of September 7, 2006, Washington D.C. on Federal Sector EEO Investigations
Good morning, Madam Chair and Commissioners. Thank you for the opportunity to discuss agency investigations in the equal employment opportunity (EEO) complaint process.
My name is Carlton Hadden, and I have the privilege of serving as the Director of EEOC’s Office of Federal Operations (OFO). OFO is charged with two major responsibilities. The first is the responsibility of resolving appeals filed by federal employees regarding determinations on their EEO complaints. The second is overseeing and assisting Executive Branch agencies in their efforts to comply with EEO legal requirements, and promote policies and practices that foster an inclusive work culture, and operate proactively to prevent employment discrimination.
Investigating claims of discrimination is a key component of the EEO complaint process. When an agency conducts a quality investigation within the regulatory time limits, it is better able to make an informed decision as to whether discrimination occurred. Delays during the investigation stage can often result in stale memories and lost documents, thus undermining an agency’s ability to create a thorough and complete record. Where a complainant requests a hearing, a well-developed investigation allows the Administrative Judge to preside over an efficient and satisfying hearings process. In addition, when a complainant files an appeal, a quality investigation facilitates the appellate body’s ability to promptly render a comprehensive and fair decision.
EEOC regulations require agencies to conduct an investigation and issue a report to the complainant within 180 days of the filing of a complaint. This time may be extended by up to 90 days where the parties have agreed to an extension or up to 180 days where the complaint is amended or consolidated.
In its landmark Management Directive (MD)715, the Commission reinforced the requirement that agencies conduct timely and impartial EEO investigations. Under MD-715, agencies must demonstrate that they have successfully implemented Model EEO programs under both Title VII and the Rehabilitation Act. In order to do that, agencies must demonstrate that their programs satisfy six critical elements; one of which is Efficiency in their EEO program operations.
I am pleased to note a recent trend that suggests agencies are becoming more efficient in investigating EEO complaints. In FY 2005, agencies averaged 237 days to complete an investigation – the best investigation time in five years. In comparison, agency investigations averaged 280 days in FY 2004 and 240 days in FY 2001. The percentage of timely investigations also indicates this improvement trend. In FY 2005, agencies were timely in completing investigations 54.9% of the time, up from 42.7% in FY 2004.1
We hope that the trend toward more timely investigations will continue. Our review of FY 2005 reports reveals that agencies have embraced the Model EEO Program elements prescribed by MD-715. A number of agencies have reported on measures designed to cure deficiencies in case processing times. For those agencies that did not report on a plan for correcting their processing deficiencies, our written feedback encouraged that such plans be submitted in their FY 2006 reports.
Some agencies have done an excellent job of completing their investigations within 180 days on average, with more than 75% of their investigations completed in a timely fashion. Examples include:
Factors that can affect the timely investigation of complaints include whether an agency uses its own personnel, outside contractors, or a combination of both to conduct its investigations. Of those investigations completed within the 180-day time limit, agency investigators averaged 132.6 days to complete the investigation, while contract investigators averaged 124.3 days. Similarly, of those investigations completed within the 181 to 360-day time limit (complaints amended, consolidated or extended by the parties), agency investigators averaged 251.9 days to complete the investigation, while contract investigators averaged 240 days.
An excellent example of an agency utilizing contract investigations is the U.S. Postal Service, which in 2005 began contracting out EEO investigations. Preliminary indicators suggest this has proven to be effective, as evidenced by the improvement seen from FY 2004 to FY 2005. In FY 2004, the USPS conducted 4,822 investigations, with only 29.82% of those investigations being timely. However, in 2005, the USPS conducted almost one-third more investigations – 6,403 to be exact – and completed 60.75% of the investigations within the regulatory timeframe. Moreover, the Postal Service reports that its decision to outsource its investigations has significantly reduced operating costs, addressed quality and timeliness issues, and eliminated the backlog of investigations.3
While reductions in processing times for investigations are noteworthy, many agencies are not completing investigations within the regulatory timeframes. OFO is working diligently with all agencies to ensure a continuing focus on whether agency complaint processing systems satisfy the essential element of Efficiency. Agencies that fail to demonstrate progress toward meeting the regulatory timeframes are reminded of the need to establish and implement specific and measurable plans for improvement.
After reviewing the investigative practices of selected agencies, OFO has identified several factors impeding the ability of certain agencies’ to complete investigations in a timely manner. Some agencies are experiencing budget constraints, resulting in poorly-staffed EEO offices. Others have unnecessary and time-consuming procedures such as lengthy approval processes for investigative plans or cumbersome procurement processes. Agencies also reported delays in obtaining affidavits from witnesses. Finally, some agencies reported inadequate tracking and monitoring systems.4 By working with agencies, OFO has identified proactive and practical approaches to overcome these deficiencies. Among the most difficult challenges that agency EEO programs face are inadequate funding and staffing. To address this, a number of agencies (DFAS, GSA, National Archives and Records Administration (NARA), and Smithsonian) implemented a fee-for-service arrangement with the program office involved in the complaint. This arrangement allows the EEO office to charge the cost of the investigation back to the program office. Three agencies (GSA, NARA, and Smithsonian) reported that this arrangement motivated managers to think about their actions before they acted. It also provided them an incentive to resolve matters early in the process before costs increased.
The Department of State reported that, while the EEO office absorbed the cost of the investigation, it charged the cost of a settlement or award to the program office where the complaint arose. This procedure provided an additional incentive for settlement because it allowed managers to see that settlement costs were low when compared to costs awarded by EEOC.
Since data indicate that contract investigators are playing an increasingly prominent role in the EEO complaint process, it is imperative that agencies address issues relating to cumbersome procurement processes. When working with contract investigators, EEOC recommends timely contract procurement to hasten the start of the investigation, short timeframes in contracts, agency complaints manager involvement, and incentives and penalties to motivate vendors.5 OFO is working on a report regarding time allocation and compensation for investigative reports to assist agencies in best utilizing the contract investigations. As we continue our work on this report, we plan to coordinate with GSA.
To address issues relating to lengthy approval processes, agencies have reported that they set deadlines for reviewing investigations for quality purposes. Our findings indicate that timely sufficiency reviews ensure fewer days for the investigation and result in a quality work product. For example, TVA expected a 5-day turnaround on a rejected work product, and DFAS and National Aeronautics and Space Administration (NASA)6 gave the investigator up to 15 days to return a completed product.
Finally, for agencies reporting inadequate tracking and monitoring systems, EEOC has urged agencies to invest in this important tool. A number of private vendors offer cost efficient complaint processing systems. Agencies can also design them internally. These systems help to electronically manage, track, and report on EEO complaints.
OFO is examining options for enhancing the web-based federal sector EEO complaint data collection system that we currently use. Enhancements could ensure consistent data reporting in real time and permit significantly improved analysis of EEO complaints.
As part of EEOC’s goal to be more responsive to our federal sector customers, OFO has implemented a Relationship Management Project. This project, modeled after the private sector’s approach to customer service, brought OFO personnel together with EEO staff from 12 large agencies and 20 small agencies in non-adversarial partnerships to assist these agencies in their efforts to foster an inclusive work culture and successfully implement the essential attributes of the MD-715's Model EEO Program. The application of the strategies and tools developed from these experiences places OFO in a position to establish a customer-oriented organization that can deliver relevant information and solutions to the federal community. For example, OFO worked closely with USDA to develop a joint work plan, which included improvement of its complaint processing system.
Finally, in an effort to facilitate the sharing of information between agencies, the annual reports submitted to the President and Congress now include practical tips and best practices for improving EEO performance. These tips and practices, which track the elements of a Model EEO Program as they appear in MD-715, allow agencies to read about what others have done to address a range of issues.
We understand that agencies can learn a great deal from one another in forums such as this Commission Meeting, where panelists are able to identify problems and discuss solutions. With the same objective, OFO is planning an EEO leadership summit, which will serve as the foundation for devising and sharing creative solutions for the challenges faced by agency EEO programs. In addition, OFO plans to conduct focus group meetings designed to reach out to our stakeholder organizations; these meetings will certainly consider how agencies are progressing in their efforts to implement Model EEO programs, as well as how they are perceived to be progressing in those efforts. In this regard, we have a great deal of interest in speaking with our stakeholders about methods to reduce the perception of partiality and of inappropriate interference in the investigative process.
OFO is also interested in improving the quality of the investigations by providing guidance to agencies on how to elicit legally sufficient evidence. We believe that the EEO leadership summit, in combination with the upcoming focus groups, will create excellent opportunities for us to improve the efficiency, effectiveness, and fairness of the investigative process.
Thank you for the opportunity to appear here today. I want to applaud you, Chair Earp, and Commissioner Griffin, for scheduling this Commission Meeting on the very important issue of agency investigations. I hope that the discussion today will be useful in formulating new approaches, and that we leverage these approaches to improve the efficiency and effectiveness of the investigative process.
I welcome any questions from you, Madam Chair, and the Commissioners.
1 These percentages include written agreements to extend the investigation and consolidated or amended complaints.
2 Annual Report on the Federal Work Force Fiscal Year 2005, last modified on August 28, 2006, is available on the web at: http://www.eeoc.gov/federal/fsp2005/index.html
3 Message from the Chairman of the Board, James C. Miller III and Postmaster General & CEO, John E. Potter, is available on the web at: http://www.usps.com/strategicplanning/stp2006_2010/letter.htm, page 42, 48.
4 For more information, see EEOC's Federal Sector Investigations - Time and Cost, last modified August 25, 2004, and Attaining a Model Agency Program: Efficiency, last modified December 1, 2004, is available on the web at: http://www.eeoc.gov/federal/reference.html.
5 Attaining a Model Agency Program: Efficiency, last modified December 1, 2004, is available on the web at: http://www.eeoc.gov/federal/efficiency.html.
6 NASA has done an excellent job of improving on the timeliness of their investigations. In FY 2004, the agency completed only 50% of their investigations with the regulatory timeframes; however, in FY 2005, they completed 95.65% of their investigations within the regulatory timeframes.
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