EEOC Seal

U.S. Equal Employment Opportunity Commission



Annual Report on the Federal Work Force Part I
EEO Complaints Processing
Fiscal Year 2013

Table of Contents

PREFACE

EXECUTIVE SUMMARY

  1. SUMMARY OF EEO STATISTICS IN THE FEDERAL GOVERNMENT
    1. Section A. Integration of EEO Into Agencies' Strategic Mission
      1. 74% of Agency EEO Directors Report to Agency Head
      2. 96.6% of Agencies Provided Some of their EEO staff with Required Training
    2. 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
    3. Section C. Responsiveness and Legal Compliance
      1. 70% of Submitted EEOC Form 462 Reports Were Timely
  2. 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

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);
  • theRehabilitation 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, 2012, through September 30, 2013 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 2012 and 2013 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) 2013 Annual Report on the Federal Work Force Part I, submitted to the President and Congress, presents a summary of selected EEO program activities of 70 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 315 federal agencies and subcomponents in their FY 2013 Federal Equal Employment Opportunity Statistical Report of Discrimination Complaints (EEO Form 462 reports) - note the Defense Nuclear Facilities Safety Board, Federal Communications Commission, National Mediation Board and the Selective Service System did not file a FY 2013 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 2013, 74.2% of agencies (with 100 or more employees) required to file a FY 2013 Form 462 reported compliance with MD-715's requirement that the EEO Director reports directly to the Head of the agency.
  • 96.6% of agencies (with 100 or more employees) required to file a FY 2013 Form 462 reported they provided some of their EEO staff with the required training in FY 2013.
  • Pre-complaint EEO counseling and alternative dispute resolution (ADR) programs addressed many employee concerns before they resulted in formal EEO complaints. Of the 33,147 instances of counseling in FY 2013, 53.53% did not result in a formal complaint, due either to settlement by the parties or withdrawal from the EEO process.
  • In FY 2013, 14,444 individuals filed 15,226 complaints alleging employment discrimination against the federal government.
  • The number of complaints filed decreased by 1.9% compared to the previous year and there was a 3.9% decrease in the number of individuals who filed complaints over the same period. In FY 2013, 5.1% of the complaints were filed by individuals who had filed at least one other complaint during the year, consistent with the 5.1% in FY 2012.
  • Government-wide, a total of 10,175 investigations were completed in an average of 207 days in FY 2013. There were 67.2%, of the investigations (6,842) timely completed, down slightly from FY 2012's 74.9% timely completion rate. Without the United States Postal Service's (USPS) investigations, the government-wide average was 55.7%, which is a decrease from the 66.4% timely completion rate in FY 2012.
  • Agencies issued 4,205 merit decisions without a decision by an EEOC Administrative Judge, and 50.1% were timely issued (2,108), up from 48.6% timely issued in FY 2012. Without the USPS' merit decisions, the government-wide average dropped to 33.9%.
  • EEOC's hearing receipts decreased from 7,728 in FY 2012 to 7,077 in FY 2013, down by 8.4%. The average processing time for a hearing was 383 days, a 3.5% increase from FY 2012's average of 370 days.
  • EEOC's appeal receipts decreased from 4,350 in FY 2012 to 4,244 in FY 2013, down by 2.4%. The average processing time for appeals in FY 2013 was 364 days, a 0.8% increase from the 361 days in FY 2012.
  • 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 $56 million in FY 2013, up 8.9% from the $51.4 million paid in FY 2012. An additional $11.2 million was paid out in response to appellate decisions, a 2.8% increase from the $10.9 million paid out in FY 2012.
  • In FY 2013, EEOC's training and outreach program reached 2,430 federal employees through 83 sessions.
  • In FY 2013, EEOC Form 462 reports were timely filed by 69.7% of the agencies (with 100 or more employees) that were required to submit an EEOC Form 462 report (62 of 89).

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. 74.2% 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 89 agencies with 100 or more employees that were required to submit an EEOC Form 462 report in FY 2013, 74.2% (66) indicated that their EEO Director reports to the agency head, up from the 71.4% reported in FY 2012 and the same percentage as reported in FY 2009. 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 2009 - FY 2013

Line graph depicting % of EEO Directors that report directly to agency head. For FY 2013 74.20%; FY 2012 71.43%; For FY 2011 - 73.62; For FY 2010 - 78.00%; and for FY 2009 - 74.20%.

2. 96.6% 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 89 agencies with 100 or more employees that were required to file an EEOC Form 462 report in FY 2013, 96.6% ensured that some of their EEO staff received the required regulatory training, slightly higher than the 96% that reported in FY 2012. See Appendix III for a detailed list of agencies' status. Agencies ensured or provided the 32 hours of required training for 969 new EEO counselors and 177 new EEO investigators. Agencies also ensured or provided the required eight hour annual refresher training to 2,082 EEO counselors and 1,770 EEO investigators. Additionally, agencies reported ensuring or providing 26 EEO counselor/investigators with thirty-two hour training and 258 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 dismiss[5] 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 2012 to FY 2013, the number of completed counselings decreased by almost 4% and by almost 15.1% since FY 2009. Formal complaints decreased by 3.9% from FY 2012 to FY 2013 and by 10.2% since FY 2009. Among the 33,147 completed counselings, 14,444 individuals filed 15,226 formal complaints in FY 2013.[8] The number of formal complaints filed represents 45.9% of all pre-complaint counseling activities in FY 2013. As Figure 2 shows, over the past five fiscal years, the number of pre-complaint counseling activities decreased from 39,038 in FY 2009 to 33,147 in FY 2013; and the number of complaints filed by individuals has declined over the past three-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 21.1% of the work force[9], it accounted for 38.5% of all EEO counselings, 28.8% of all complaints filed, 27.7% of all completed investigations and 29.3% of all complaints closed in FY 2013. 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 2009 - FY 2013

Bar graph depicting Completed Counselings, complaints filed and number of complainants. For FY 2013 - 33,147 completed counselings; 15,226 complaints filed by 14,444 individuals; For FY 2012 - 34,521 completed counselings; 15,837 complaints filed by 15,026 individuals; For FY 2011 - 36,642 completed counselings; 16,974 complaints filed by 15,796 individuals; For FY 2010 - 40,563 completed counselings; 17,583 complaints filed by 16,480 individuals; and for For FY 2009 - 39,038 completed counselings; 16,947 complaints filed by 15,825 individuals.

Table 1 below shows that among the cabinet/large (15,000 or more employees) agencies in FY 2013, 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 (5.5%) 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 2013

Agency Total Work Force* Percentage of Individuals Who Completed Counseling

Cabinet or Large (15,000 or more employees)

   

U.S. Postal Service

614,728

1.9%

Department of Labor

16,302

1.5%

Defense Logistics Agency

22,157

1.3%

Medium Agencies (1,000 to 14,999 employees)

   

Government Printing Office

1,879

5.5%

Federal Reserve Board of Governors

2,450

2.2%

Broadcasting Board of Governors

1,612

2.2%

* Work force numbers as reported by the agency in its FY 2013 462 report.

As shown in Table 2 below, in FY 2013, among the cabinet/large agencies (15,000 or more employees), the Department of Labor reported the highest complainant rate of .91%, 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 2.4%. 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 2013

Agency

Total Work Force*

Complainants as % of Total Work Force

Cabinet or Large (15,000 or more employees)

   

Department of Labor

16,302

0.91%

Department of Justice

116,022

0.72%

Social Security Administration

62,725

0.70%

Medium Agencies (1,000 to 14,999 employees)

   

Government Printing Office

1,879

2.39%

Equal Employment Opportunity Commission

2,161

1.16%

Department of Housing and Urban Development

8,764

1.03%

* Work force numbers as reported by the agency in its FY 2013 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 2013 data with prior years' data is not possible.

In FY 2013, the government-wide offer rate was 86.8% based upon 28,755 ADR offers made in 33,147 completed/ended counselings, up from the 85.7% reported in FY 2012. The participation rate was 51.2%, based upon the 16,982 counselings accepted into agencies' ADR programs of the total completed/ended counselings, marginally exceeding the 51.1% reported in FY 2012.

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

In FY 2013, the U.S. Postal Service again reported the highest ADR participation rate in the pre-complaint process (70.6%) among the cabinet/large agencies, while the government-wide average was 51.2%. Among the medium sized agencies, the Defense Finance and Accounting Service reported the highest pre-complaint ADR participation rate (75.7%). The government-wide average falls to 39.1% 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 2013

Agency

Total
Work Force*

Completed / Ended
Counselings

Participation
in ADR

Participation Rate

Cabinet or Large (15,000 or more employees)

 

U.S. Postal Services

614,728

12,777

9,021

70.60%

Defense Logistics Agency

22,157

315

212

67.30%

Department of Treasury

109,011

704

421

59.80%

Medium Agencies (1,000 to 14,999 employees)

 

Defense Finance and Accounting Service

11,323

103

78

75.73%

General Services Administration

11,830

144

77

53.47%

Department of Education

4,240

32

15

46.88%

* Work force numbers as reported by the agency in its FY 2013 462 report.

c. Agencies Meet Counseling Deadlines in 92.3% of Cases

On average in FY 2013, agencies met timeliness requirements for EEO counseling in 92.3% of all completed/ended counselings, which was a slight decrease from 92.9% in FY 2012 and a small increase from the 90.18% in FY 2009. 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 2013

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 2013, the government-wide resolution rate average was 53.5%, up slightly from 53.4% in FY 2012.

The Federal Reserve Board of Governors Holds the Highest Pre-Complaint Resolution Rate

In FY 2013, the Federal Reserve System-Board of Governors, a medium sized agency, reported the highest pre-complaint resolution rate (88.9%) 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 (80.9%). See Table 4. Agencies that had fewer than 25 completed/ended counselings were not included in the ranking. However, five agencies, Federal Retirement Thrift Investment Board, Holocaust Memorial Museum, John F. Kennedy Center for Performing Arts, Office of Special Counsel, and 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 2013

Agency

Total Work Force*

Completed
Counselings

Total Resolved

Resolution Rate

Cabinet or Large (15,000 or more employees)

       

Defense National Guard Bureau

61,277

68

55

80.9%

Defense Army and Air Force Exchange Service

32,225

308

211

68.5%

Defense Logistics Agency

22,157

315

208

66.0%

Medium Agencies (1,000 to 14,999 employees)

       

Federal Reserve System-Board of Governors

2,450

54

48

88.9%

National Archives and Records Administration

3,169

36

25

69.4%

Broadcasting Board of Governors

1,612

38

24

63.2%

* Work force numbers as reported by the agency in its FY 2013 462 report.

The Defense Commissary Agency Had the Highest ADR Resolution Rate in FY 2013

In FY 2013, the Defense Commissary Agency reported the highest ADR resolution rate in the pre-complaint process (100.0%) among those agencies with 25 or more ADR closures, whereas the government-wide average was 63.7%. Among the large sized agencies, the Defense Army & Air Force Exchange Services reported the highest pre-complaint ADR resolution rate (86.7%). See Table 5. The government-wide ADR resolution rate decreased to 52.6% for FY 2013, when the U.S. Postal Service resolution rate (73.8%) is excluded from the government-wide average, which was up from the 49.7% in FY 2012. 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 2013

Agency

Total
Work Force*

ADR Closures

ADR
Resolutions

ADR Resolution Rate

Cabinet or Large (15,000 or more employees)

       

Defense Army and Air Force Exchange Services

32,225

75

65

86.7%

U.S. Postal Service

614,728

9,021

6,655

73.8%

Defense Logistics Agency

22,157

212

150

70.8%

Medium Agencies (1,000 to 14,999 employees)

       

Defense Commissary Agency

13,157

83

83

100.0%

Defense Finance and Accounting Services

11,323

78

48

61.5%

Department of Energy

14,101

28

12

42.9%

* Work force numbers as reported by the agency in its FY 2013 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 2013 from the FY 2009 amounts while the number of settlements with monetary benefits increased in FY 2013. The data showed a decrease in the average amount of monetary benefits from $4,652 in FY 2012 to $3,928 in FY 2013.

Table 6 - Monetary Benefits Awarded In Settlements During the Pre-Complaint Stage of the EEO Process FY 2009 - FY 2013

FY

Completed Counselings

Total Resolutions

Total Settlements

Total Settlements with Monetary Benefits

Settlement Monetary Benefits

Average Award per Resolution with Monetary Benefits

# % # % # %

2009

39,038

21,666

55.5

6,735

17.3

703

10.4

$3,715,972

$5,286

2010

40,563

22,094

54.5

6,332

15.6

577

9.1

$3,148,563

$5,457

2011

36,642

19,460

53.1

5,799

15.8

627

10.8

$3,042,646

$4,853

2012

34,521

18,449

53.4

5,353

15.5

740

13.8

$3,442,719

$4,652

2013

33,147

17,743

53.5

4,829

14.6

744

15.4

$2,922,056

$3,928

f. The Most Frequently Alleged Basis and Issue Remain Unchanged

Of the 15,226 complaints filed in FY 2013, the basis most frequently alleged was reprisal/retaliation (7,339) and the issue most frequently alleged was non-sexual harassment (6,127). As shown in Tables 7 and 8, this has remained unchanged for the past five fiscal years. In FY 2013, 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 2009 - FY 2013

Basis

FY 2009

FY 2010

FY 2011

FY 2012

FY 2013

Reprisal/Retaliation

7,510

7,712

7,553

7,457

7,339

Age

5,058

5,314

5,105

4,915

4,803

Race - Black/African American

 

4,232

4,389

4,042

3,838

Disability (Physical)

4,006

       

In FY 2013, allegations of race discrimination were made in 37.7% of all complaints, up from the 37.5% of all complaints filed in FY 2012. In FY 2013, there was a 10.2% decrease in the number of complaints filed since FY 2009, and the percentage of complaints alleging discrimination based on race also decreased by 4.3%. During that

same period, the percentage of complaints filed alleging discrimination based on color increased 17.5%, from 1,610 in FY 2009 to 1,892 in FY 2013.[10]

Table 8 - Top 3 Issues in Complaint Allegations Filed for FY 2009 - FY 2013

Issue

FY 2009

FY 2010

FY 2011

FY 2012

FY 2013

Harassment - Non-Sexual

5,599

5,907

5,863

5,991

6,127

Terms/Conditions

2,592

2,546

2,492

2,506

2,734

Promotion/Non-Selection

2,574

2,530

2,683

2,250

2,221

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 2013, agencies timely completed investigations 67.2% of the time, down from 74.9% in FY 2012 (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 decreased to 55.7% government-wide from the 66.4% timely completed in FY 2012. Agencies' average time to complete investigations increased from 187 days in FY 2012 to 207 days in FY 2013, leaving the FY 2010 reported average of 181 days as the best time for the previous twenty-one years.[11] See Figure 3 below.

Figure 3 - Average Processing Days for Investigations for FY 2009 - FY 2013

Line graph depicting the average days to do an investigation government-wide. For FY 2013 - 207 days; For FY 2012 - 187 days; For FY 2011 - 183 days; For FY 2010 - 181 days; and For FY 2009 - 185 days

Of those investigations required to be completed within the 180-day time limit, agency in-house investigators averaged 242 days to complete the investigation in FY 2013, while contract investigators averaged 193 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.

One Agency Timely Completed 100% of Investigations[13]

Among the agencies which completed 25 or more investigations in FY 2013, Federal Deposit Insurance Corporation timely completed 100% of their investigations. See Table 9 below. Among cabinet or large agencies, the Department of Commerce timely completed 98.1% of its 160 investigations in FY 2013. 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 2013

Agencies

Total
Work Force

# Completed
Investigations

# Timely Completed

% Timely

Cabinet or Large (15,000 or more employees)

       

Department of Commerce

46,151

160

157

98.1%

Department of Labor

16,302

90

88

97.8%

U.S. Postal Service

614,728

2,821

2,749

97.5%

Medium Agencies (1,000 to 14,999 employees)

       

Federal Deposit Insurance Corporation

7,577

40

40

100.0%

Tennessee Valley Authority

12,415

37

35

94.6%

Office of Personnel Management

5,495

33

31

93.9%

In FY 2013, the government-wide average cost for contracting out complaint investigations was calculated at $3,122.99, an 11.1% increase from the FY 2012 average cost of $2,811.07. Alternatively, the FY 2013 average cost of agency (in-house) investigations ($6,852.39) decreased almost 4.3% from the FY 2012 average cost of $7,156.72. Average costs to contract out investigations in FY 2013 were approximately 54.4% less than the average costs of agency (in-house) investigations, which represent a decrease from 60.7% in FY 2012.

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 2013, the government-wide average processing time for issuing a decision dismissing a complaint on procedural grounds was 83.1 days, a decrease from FY 2012's 92.5 days. 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 2009 - FY 2013

FY

Complaint Closures

Merit Final Agency Actions With AJ Decisions

Merit Final Agency Decisions Without

AJ Decisions

Procedural Dismissals With & Without AJ Decisions

Settlements

Withdrawals

 

Total

APD

Total

APD from Comp. Filed

Total

APD

APD from Date Required

% Timely

Total

APD

Total

APD

Total

APD

2009

16,134

344

2,755

621

4,150

451

175

54.8%

4,370

83

3,394

378

1,465

222

2010

17,124

361

2,771

685

4,282

481

201

51.5%

5,091

100

3,623

388

1,357

220

2011

17,436

346

2,998

673

4,428

429

128

56.5%

4,853

73

3,785

382

1,372

234

2012

15,706

388

2,640

713

4,118

462

144

48.6%

3,515

92

4,076

409

1,357

232

2013

14,716

420

2,536

851

4,205

451

127

50.1%

3,101

83

3,637

420

1,237

276

An agency may also issue a decision after an investigation, either finding discrimination or finding no discrimination. In FY 2013, agencies timely issued 50.1% of their final agency merit decisions, an increase from the 48.6% timely completed in FY 2012. 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 2013, agencies issued merit final agency decisions without an Administrative Judge's decision in an average of 127 days, down from 144 days in FY 2012.

The U.S. Postal Service Issued the Highest Percentage of Timely Merit Decisions Without an Administrative Judge Decision

In FY 2013, the U.S. Postal Service reported it had issued 94% of its merit decisions without an EEOC Administrative Judge decision in a timely manner. The FY 2013 government-wide average for timely issued merit decision percentage was 50.1% with the U.S. Postal Service and dropped to 33.1% 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 2013

Agencies

Total Work Force

Merit Decisions without an AJ Decision

# Timely %

Cabinet or Large (15,000 or more employees)

       

U.S. Postal Service

614,728

1,178

1,107

94.0%

Department of Labor

16,302

28

25

89.3%

Department of the Treasury

109,011

113

94

83.2%

Medium Agencies (1,000 to 14,999 employees)

       

Defense Commissary Agency

13,157

39

31

79.5%

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 2013, agencies issued 2,581 final orders implementing and 39 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 2013, agencies issued orders on Administrative Judge merit decisions in an average of 851 days after the complaint was filed, up from the 713 days in FY 2012 and the 622 days in FY 2009.

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

In FY 2013, the percentage of findings of discrimination dropped to 2.7% from the 3.1% in FY 2012. Table 12 also shows that the total number of merit decisions decreased as did the number of settlements in FY 2013.

Table 12 - Amounts Awarded in Resolution of Formal

EEO Complaints Before Appeals FY 2009 - FY 2013

Total Complaint Closures

Findings of Discrimination

Settlements

Monetary Benefits

FY

#

Total Merit Decisions

#

% of Merits Decisions

#

% of Total Closures

# Total Complaint Closures with Benefits

% of Total Complaint Closures with Benefits

Total
(in millions)

Per Capita

2009

16,134

6,905

206

3.0%

3,394

21.0%

3,555

22.0%

$41.7

$11,734

2010

17,124

7,053

233

3.3%

3,623

21.2%

3,803

22.2%

$46.9

$12,335

2011

17,436

7,426

212

2.9%

3,785

21.7%

3,953

22.7%

$43.5

$11,000

2012

15,706

6,758

214

3.1%

4,076

25.9%

4,257

27.1%

$51.4

$12,084

2013

14,716

6,741

184

2.7%

3,637

24.7%

3,795

25.8%

$56.0

$14,763

Average monetary benefits awarded in resolution of formal EEO complaints increased by 22.2% between FY 2012 and FY 2013, and increased by 25.8% since FY 2009. 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 2009 - FY 2013

Bar graph depicting monetary benefits awarded in the formal complaint stage. And for FY 2013 there were $56 million dollars total awarded in the formal complaint process, of which $30 million was paid as lump sum payments, $9.1 million was for compensatory damages and $15.2 million was paid in attorney fees. For FY2012 there were $51.4 million dollars total aarded in the formal complaint process of which $25.6 million was paid as lump sum payments, $8.7 million dollars for compensatory damages and 14.1 million was paid in attorney's fees. For FY 2011 there were $43.5 million dollars total awarded in the formal complaint process, of which $21.4 million was paid as lump sum payments, $7.2 million was for compensatory damages and $12 million was paid in attorney fees. For FY 2010 there were $46.9 million dollars total aarded in the formal complaint process of which $20.2 million was paid as lump sum payments, $13.9 million dollars for compensatory damages and 10.2 million was paid in attorney's fees. And for FY 2009 there were $41.7 million dollars total awarded in the formal complaint process, of which $15.7 million was paid as lump sum payments, $10.2 million was for compensatory damages and $12 million was paid in attorney fees.

i. Affirmation Rate of Final Agency Decisions on Appeal Rose

As demonstrated by Table 13 below, 68.1% of final agency decisions (FADs), excluding those in which an Administrative Judge issued a decision, were affirmed on appeal in FY 2013. This represents a 6.57% increase from the FY 2012 affirmation rate and a 4.35% decrease from the FY 2009 affirmation rate.

Table 13 - Affirmation Rate of Final Agency Decisions on Appeal

FY 2009 - FY2013

Fiscal Year

FADs Decided
on Appeal

FADs Affirmed
on Appeal

Percentage of FADs Affirmed
on Appeal

FY 2009

2,184

1,556

71.2%

FY 2010

2,543

1,759

69.2%

FY 2011

2,274

1,624

71.4%

FY 2012

2,471

1,578

63.9%

FY 2013

2,102

1,431

68.1%

Some of the totals have been corrected from totals reported in previous Annual Reports.(FY 2012)

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 8,146 in FY 2012 to 8,512 in FY 2013, which represents an increase of 4.5%. Since FY 2009, the hearings inventory has increased 21.7%.

Figure 5 - Hearings Inventory FY 2009 - FY 2013

Line graph depicting the number of cases in inventory at the hearing stage. In FY 2013 there were 8,512 cases in inventory at hearing stage; FY 2012 there were 8,146 cases in inventory at the hearing stage; in FY 2011 there were 8,037 cases in inventory at the hearing stage, for FY2010 there were 7,164 cases in inventory;and FY 2009 there were 6,997 cases.

ii. Hearing Requests Decrease

Hearing requests decreased by 8.4% from 7,728 in FY 2012 to 7,077 in FY 2013, and decreased by 2.7% since FY 2009. For comparison purposes, the 7,077 hearings requested comprised 46.5% of the total complaints filed in FY 2013.

Figure 6 - Comparison of Requests for EEOC Hearings to Complaints Filed
FY 2009 - FY 2013

Horizontal bar graph depicting the number of hearing requests and total complaints filed by year. For FY 2013, there were 15,226 total complaints filed and 7,077 hearing requests made. For FY 2012, there were 15,837 total complaints filed and 7,728 hearing requests made. For FY 2011, there were 16,974 total complaints filed and 8,113 hearing requests made. For FY2010, there were 17,583 complaints filedand 7,707 hearing requests made. For FY 2009, there were 16,947 complaints filed and 7,277 hearing requests made.

iii. Hearing Closures

During FY 2013, EEOC's Hearings Program resolved 6,789 cases (including 46 class actions), which represents a 9.9% decrease from the 7,538 cases resolved in FY 2012 and a 0.1% increase from the 6,779 cases closed in FY 2009. Excluding the class actions, the 6,743 individual cases in FY 2013 were closed in the following manner: 8.3% were by decision following a hearing; 28.3% were by decisions on the record; 32.6% were closed by settlements; 12.6% were by procedural dismissal; and 18.3% were withdrawals. See Table 14 for a comparison of FY 2009 - FY 2013.

Table 14 - Hearings Program Individual Case Closures: FY 2009 - FY 2013

Closure Type

FY 2009

FY 2010

FY 2011

FY 2012

FY 2013

#

%

#

%

#

%

#

%

#

%

Decisions Following a Hearing

822

12.2

806

11.2

822

12.2

806

11.2

561

8.3

Decisions On the Record

1,919

28.6

2,102

29.3

1,919

28.6

2,102

29.3

1,905

28.3

Settlements

1,892

28.2

2,120

29.6

1,892

28.2

2,120

29.6

2,199

32.6

Procedural Dismissals

859

12.8

924

12.9

859

12.8

924

12.9

847

12.6

Withdrawals

1,220

18.2

1,217

16.9

1,220

18.2

1,217

16.9

1,231

18.3

Total Individual Case Closures

6,712

 

7,169

 

6,712

 

7,169

 

6,743

 
iv. Average Processing Time for Hearings

The average processing time for hearing closures increased from 370 days in FY 2012 to 383 days in FY 2013, and also represents an increase from the 294 days in FY 2009. The average age of the pending inventory decreased to 364 days in FY 2013 from 395 days in FY 2012, and also down from the 377 days in FY 2009.

Figure 7 - Average Processing Days for Hearings
FY 2009 - FY 2013

Bar graph depicting the average processing days for hearings and the average age of the pending inventory at the end of the fiscal year. For FY 2013, hearings took an average of 383 days and the average age of the pending inventory was 364 days. For FY 2012, hearings took an average of 370 days and the average age of the pending inventory was 395 days. And in FY 2011, hearings took an average of 345 days and the average age of the pending inventory was 584 days. For FY2010, it took 332 days for a hearing and the average age of the pending inventory was 380 days. For FY 2009, it took 294 days for a hearing and the aveage age of the pending inventory was 377 days.

v. Agencies Challenge Findings of Discrimination

In FY 2013, EEOC Administrative Judges issued 122 decisions finding discrimination, which was 4.9% of all decisions on the merits of complaints. In comparison to the 148 decisions finding discrimination that Administrative Judges issued in FY 2012, the 122 decisions in FY 2013 represents a 17.6% 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 2013, agencies appealed only 1.4% of all Administrative Judge decisions. However, they appealed 24.1% of the cases where an Administrative Judge found discrimination.

Table 15 - Agency Actions on Administrative Judge Decisions FY 2009 - FY 2013

FY

Finding Discrimination[15]

Finding No Discrimination

Totals

Implemented

Appealed

Implemented

Appealed

Implemented

Appealed

# %

# % # % # % # % # % # %

2009

103

69.6%

45

30.4%

2,606

99.9%

1

0.04%

2,709

98.3%

46

1.7%

2010

119

69.2%

53

30.8%

2,596

99.9%

3

0.12%

2,715

98.0%

56

2.0%

2011

116

72.5%

44

27.5%

2,833

94.7%

5

0.18%

2,954

98.5%

49

1.6%

2012

124

80.0%

31

20.0%

2,481

99.8%

4

0.16%

2,605

98.7%

35

1.3%

2013

82

75.9%

26

24.1%

2,419

99.6%

9

0.37%

2,501

98.6%

35

1.4%

vi. Monetary Benefits Decrease at Hearings

In FY 2013, Administrative Judges' decisions and settlements at the hearings stage awarded $56.2 million in benefits, as compared to the $61.8 million in FY 2012 and the $44.5 million awarded in FY 2009. 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 2009 - FY 2013

Bar graph depicting the monetary benefits awarded at the hearings stage. For FY 2013, there were $56.2 million dollars total paid of which $18.8 was for compensatory damages and $12.1 were for attorney's fees. For FY 2012, there were $61.8 million dollars total paid of which $17.7 was for compensatory damages and $14.8 were for attorney's fees. For FY 2011, there were $58 million dollars total awarded at the hearing stage, of which $16.3 million dollars was for compensatory damages and $11.3 million was paid for attorney's fees. For FY 2010, there were $63.1 million dollars total awarded at the hearing stage, of which $17.5 million dollars was for compensatory damages and $15.1 million was paid for attorney's fees. For FY 2009, there were $44.5 million dollars total awarded at th hearing stage, of which $11.4 million dollars was for compensatory damages and $9.7 million dollars wer paid for attorney's fees.

vii. Affirmation Rate of AJ Decisions on Appeal Drops Slightly

As demonstrated by the table below, 81.9% of Administrative Judges' decisions were affirmed on appeal in FY 2013.[16] The number of appealed Administrative Judges' decisions increased 4.8% over the five year period between FY 2009 to FY 2013; the affirmation rate fell by 10.0% during this time period.

Table 16 - Affirmation Rate of AJ Decisions on Appeal

FY 2009 - FY 2013

Fiscal Year

AJ Decisions
Appealed

AJ Decisions Affirmed on Appeal

% of AJ Decisions Affirmed on Appeal

Total

Appeal By

Agency[17]

Appeal By
Appellant

Total

Appeal By
Agency

Appeal By
Appellant

Total

Appeal By
Agency

Appeal By
Appellant

2009

972

50

922

928

38

890

95.5%

76.0%

96.5%

2010

972

55

917

916

47

869

94.2%

85.5%

94.7%

2011

1,065

39

1,026

989

34

955

92.9%

87.2%

93.1%

2012

830

46

784

741

33

708

89.3%

71.7%

90.3%

2013

1,019

29

990

835

25

914

92.1%

86.2%

92.3%

b. Appeals
i. Appeals Inventory Increases

OFO's appellate inventory, at the close of FY 2013 rose to 4,305, which represents a 2.6% decrease from the 4,422 case inventory at the close of FY 2012 and a 15.3% increase from the 3,733 case inventory at the close of FY 2009.

Figure 9 - Appellate Inventory FY 2009 - FY 2013

Line graph depicting the number of cases in the appellate inventory. In FY 2013 there were 4,305 cases; In FY 2012 there were 4,422 cases; In FY 2011 there were 4,337; In FY 2010, there were 3,671 cases;and in FY 2009, there were 3,733 cases.

ii. Appeal Receipts On the Decline

OFO received 4,244 appeals in FY 2013, representing a 2.4% decrease from the 4,350 appeals filed in FY 2012. FY 2013 appeal receipts represented a 10.6% decrease from the 4,745 appeals received in FY 2009. In FY 2013, 28.8% of closed complaints were appealed, which was less than the 29.4% in FY 2009.

Figure 10 - Comparison of Appeals Receipts to Complaint Closures
FY 2009 - FY 2013

Horizontal bar graph depicting the number of Appeals receipts and the total number of complaint closures. In FY 2013, there were 14,716 complaint closures and 4,244 appeal receipts; In FY 2012, there were 15,706 complaint closures and 4,350 appeal receipts; In FY 2011, there were 17,436 complaint closures and 5,176 appeal receipts. In FY 2010, there were 17,124 complaint closures and 4,545 appeal receipts; and In FY 2009, there were 16,134 complaint closures and 4,745 appeal receipts.

iii. Appeal Closures Down

OFO closed a total of 4,361 appellate cases in FY 2013, slightly more than the 4,265 appellate cases closed in FY 2012. Of the FY 2013 closed cases, 2,721 (62.4%) alleged violations of Title VII; 1,077 (24.7%) involved the Rehabilitation Act; 1,037 (23.8%) alleged violations of the ADEA; 14 (0.3%) involved the Equal Pay Act of 1963, and 5 involved the Genetic Information Nondiscrimination Act of 2008 (GINA). In FY 2012, OFO closed a total of 4,265 appellate cases, of which 2,830 were Title VII cases (66.4%); 1,077 involved the Rehabilitation Act (25.3%); 1,052 alleged violations of the ADEA (24.7%); and 17 involved the Equal Pay Act of 1963 (0.4%).[18]See Figure 11 for the appeal closures from FY 2009 to FY 2013.

Figure 11 - Appeal Closures FY 2009 - FY 2013

Horizontal bar graph depicting the number of appeal closures by statute as set forth in the previous text.

Table 17 below provides a breakdown by appeal type of all FY 2013 appellate receipts and closures.

Table 17 - Types of Receipts and Appeals FY 2013

Types of Appeals

Receipts

Closures

#

% of Total

#

% of Total

Total

4,244

 

4,361

 

Initial Appeals from Complainants

3,416

80.5

3,512

80.5

Initial Appeals from Agencies

39

0.9

35

0.8

Petitions to Review MSPB Decisions

57

1.3

53

1.2

Appeals from a Grievance/Arbitration of FLRA Decisions

9

0.2

6

0.1

Petitions for Enforcement

29

0.7

20

0.5

Requests for Reconsiderations

694

16.4

735

16.9

In FY 2013, OFO closed 1,864 appeals addressing the merits of the underlying discrimination claims, and made a total of 76 findings of discrimination, which represents almost 4.1% of the total. By comparison, 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 represented 6.3% of the total. In FY 2013, OFO reversed 24.6% of the 2,109 appeals of procedural dismissals.

iv. Average Processing Time of Appeal Closures

The average processing time for appeal closures rose to 364 days in FY 2013, representing a 0.8% increase from 361 days in FY 2012 and a 25.5% increase from 290 days in FY 2009.

OFO resolved 2,089 (52.9%) of the 4,361 appeals closed in FY 2013 within 180 days. The average age of the pending inventory at the end of FY 2013 was 344 days, a 8.2% increase from the 318 day average age at the end of FY 2012 and a 13.9% increase from the 302 day average age of the open inventory at the end of FY 2009.

Figure 12 - Average Processing Days on Appeal
FY 2009 - FY 2013

Bar graph depicting the the average processing days on appeal and average age of pending inventory. For FY 2013, the average number of processing days was 364 and average age of pending inventory was 344 days; For FY 2012, the average number of processing days was 361 and average age of pending inventory was 318 days; For FY 2011, the average number of processing days was 378 and average age of pending inventory was 284 days; In FY 2010, the average number of processing days was 292 and average age of pending inventory was 358 days; and In FY 2009 - 290 days and 302 days avg pending age;

*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 2013, race was the second most alleged basis, with disability as the third most prevalent basis of discrimination alleged in closed appeals. Harassment, removal, and promotion were the three most prevalent issues of discrimination alleged in closed appeals.

vi. $11.2 Million Awarded on Appeal

In FY 2013, the $11.2 million in monetary benefits awarded in compliance with appellate decisions (including settlement agreements resolving appeals) increased by 2.8% from the $10.9 million awarded in FY 2012 and a 31.8% increase from the $8.5 million awarded in FY 2009.

Figure 13 - Monetary Benefits Awarded from Appeals[19]
FY 2009 - FY 2013 (In Millions of Dollars)

Bar graph depicting the monetary benefits awarded in the appellate stage. In FY 2013, $11.2 million dollars total was awarded, of which $3.4 million was compensatory damages and $2.7 million was attorney's fees In FY 2012, $10.9 million dollars total was awarded, of which $1.8 million was compensatory damages and $1.9 million was attorney's fees In FY 2011, $9.2 million dollars total were awarded, of which $2.9 million was compensatory damages and $2.5 million was attorney's fees; In FY 2010, $5.3 million dollars total were awarded, of which $1.8 million was compensatory damages and $1.1 million was attorney's fees; and In FY 2009, $8.5 million dollars total were awarded, of which $ 2.2 million was compensatory damages and $1.6 million was attorney's fees.

vii. Training and Outreach Conducted By EEOC

In FY 2013, 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 enforced. 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 83 training sessions reaching 2,430 federal employees, including 136 new EEO counselors, 172 new EEO investigators, and 189 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 5,451 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. 70% 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 2013, 62 or 69.7% of the 89 agencies (with 100 or more employees) timely submitted the EEOC Form 462 Report, down from the 91.8% timely submitted in FY 2012. 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 deadline to be considered timely. In FY 2013, the EEOC opened its new electronic submissions portal, FedSEP to agencies for 462 report submission. In this system, EEOC must accept the agency's report prior to the November 29thdeadline to be considered timely.[20] See Appendix III for the list of agencies' FY 2013 report submission times.

 


[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] Id.

[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).

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

[9] Work force numbers as reported by the agency in its FY 2013 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 25 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 is 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 government closures the deadline was extended to November 29, 2013.