United States Department of the Interior
Office of the Secretary
Washington, D.C.  20240

December 19, 2003

EQUAL OPPORTUNITY DIRECTIVE 2004-05

TO: Bureau and Office Equal Opportunity Officers

FROM: E. Melodee Stith, Director /s/

Office for Equal Opportunity

SUBJECT: Evaluation of the Department of the Interior (DOI) Bureaus and Offices Alternative Dispute Resolution Procedures

During recent months, the Departmental Office for Equal Opportunity reviewed information obtained from Bureaus and Offices regarding their Alternative Dispute Resolution (ADR) procedures to ensure compliance with the U.S. Equal Employment Opportunity Commission’s regulations at 29 CFR 1614 and internal DOI ADR policies. The review included assessing the efficiency of the Bureaus’ and Offices’ ADR procedures, techniques and resources to determine what factors may contribute to the under-utilization of the ADR program and to recommend procedural improvements where warranted.

An evaluation of the information received from the Bureaus and Offices resulted in the attached ADR report of findings, recommendations and best practices. The evaluation revealed several ADR inefficiencies throughout the Bureaus and Offices. Ultimately, to ensure uniformity and consistency within the ADR Program, the Department will establish and implement one set of procedures to be utilized by all Bureaus and Offices. In the interim, Bureaus and Offices are encouraged to review the attached report and use it as a resource to develop more efficient procedures that will increase the utilization of ADR.

Should you have any questions, or wish to provide feedback on the attached report, please contact my staff member, Acquanetta Newson at (202) 208-7101 or email at Acquanetta_Newson@ios.doi.gov.

TABLE OF CONTENTS

Page

INTRODUCTION………………………………………. 2

FINDINGS AND RECOMMENDATIONS..….............. 3

BEST PRACTICES……………………………………... 4

CONCLUSION………………………………………….. 4

i

A Review of the Department of the Interior Bureaus and Offices

Alternative Dispute Resolution Procedures

The U.S. Equal Employment Opportunity Commission (EEOC) regulations at 29 CFR 1614 require the U.S. Department of the Interior (DOI) to provide complainants with access to alternative dispute resolution at the informal and formal stages of complaints processing and adjudication. Accordingly, the DOI requires that Alternative Dispute Resolution (ADR) procedures be implemented in Bureaus and Offices to provide a mechanism by which complainants and managers could more easily resolve issues without having to engage in the full administrative Equal Employment Opportunity (EEO) complaints process.

DOI complaints records show that ADR is under-utilized at the informal and formal stages of complaints processing. The data also show that the resolution rate is high when ADR is accepted in the formal stage. The DOI Annual Federal Equal Employment Opportunity Statistical Report of Discrimination Complaints for Fiscal Year 2003 provided the following statistics on ADR.

~ ADR was offered in 54% of all counselings at the informal stage.

~ ADR was accepted in 29% of those offered at the informal stage.

~ ADR was successful in 23% of those who accepted at the informal stage.

~ ADR was offered in 41% of all complaints filed at the formal stage.

~ ADR was accepted by 46% of those offered at the formal stage.

~ ADR was successful in 89% of those who accepted at the formal stage.

To help understand, in part, why ADR is under-utilized by DOI complainants, a review of the ADR procedures for each Bureau and Office was conducted. The review involved examining the ADR procedures and determining the likelihood of the complainant’s acceptance of ADR for complaint resolution. Each Bureau and Office was asked to provide a copy of its most recent procedures on ADR. Findings and recommendations, as well as best practices, are provided below.

Findings & Recommendations (in italics):

DOI employees, former employees and applicants must be assured a fair and equitable process for dispute resolution. To help establish an effective, efficient and timely dispute resolution process, ADR procedures should be in writing, widely distributed across the Bureau or Office, include a clear and precise outline of the entire ADR process, and applied consistently across the Bureau or Office.

~ Some Bureaus and Offices have pre-determined exclusions of certain types of issues from ADR (i.e. removal). If a Bureau or Office ADR procedures exclude certain types of issues from ADR, the procedures should specify the types of issues excluded and advise the complainant of his/her right to proceed to the EEO Counseling or full administrative EEO complaints process. However, Bureaus should review their procedures and determine whether the exclusions are necessary and/or appropriate. ADR should be available in the broadest sense possible.

~ Some Bureau and Office ADR procedures do not specify a timeframe in which ADR will occur when the complainant elects ADR. Procedures should specify the timeframe in which ADR will occur. It is noted that while regulations allow the pre-complaint processing period to be extended up to 90 days when ADR is elected, the Bureau or Office should be able to conduct ADR within less time and close the pre-complaint period before 90 days have lapsed. The ADR process should be monitored to ensure expeditious resolution and to avoid unnecessary delays.

~ Some Bureau and Office ADR procedures provide very little information on mediators and/or facilitators. ADR procedures should clearly indicate how mediators/facilitators are selected, the role of the mediator/facilitator, and who pays if contracted.

~ One Bureau’s ADR procedures require the use of a “strike process” in which a list of mediators, along with brief descriptions of their credentials, is provided to the complainant and the management official. The strike process requires the complainant and the management official to separately select from the list. Through a process of elimination, a mediator is selected. ADR procedures should indicate that EEO officials and ADR coordinators are responsible for the selection of a mediator. The mediator must be a neutral party who can effectively and efficiently guide the process, clarify issues, and assist in the search for solutions to problems between the parties in conflict.

~ Some Bureau and Office ADR procedures are not widely distributed or easily accessible to employees. Bureaus and Offices should ensure that all employees have access to information on the ADR process. Notification may be through a variety of media to include EEO Counselor

posters and the Bureau or Office webpage.

Best Practices:

Some Bureau and Office ADR procedures included several best practices. Bureaus and Offices are encouraged to adopt and/or continue the following practices.

~ Utilize the Federal Mediation & Conciliation Service as an ADR resource.

~ Utilize the DOI Office of Collaborative Action and Dispute Resolution (CADR) as a mediation source.

~ Conduct an ADR participant survey to determine effectiveness of the process and to get customer feedback.

~ Analyze data to determine the success of the ADR program and what improvements or changes should be made.

~ Train all managers, supervisors and employees on the ADR program and procedures.

~ Publicize the ADR program and procedures through presentations, memoranda, brochures, a program handbook, websites etc.

~ Train EEO Counselors on how to promote and encourage ADR.

Conclusion:

The EEOC Report on the Federal Workforce, Fiscal Year 2002, indicates that ADR is under-utilized in the overall Federal Workforce. And, like the Federal Workforce, the DOI ADR Program is under-utilized. Over the past three years, DOI has issued several Equal Opportunity Directives on the implementation of Bureau and Office ADR procedures; however, use of ADR has not increased significantly. In an effort to ensure uniformity and consistency and increase support and use of the ADR program, it is highly recommended that DOI establish and issue DOI-wide ADR Program procedures for the effective, efficient and timely implementation of ADR as it relates to the EEO complaints and adjudication process.