The U.S. Equal Employment Opportunity Commission

Section B - EEO Complaint Processing by Federal Agencies

To become a model EEO program, agencies must operate their EEO programs efficiently and take proactive steps to prevent unlawful discrimination from occurring. Agencies are required, among other things, to maintain an efficient, fair and impartial complaint resolution process. The goal of the complaint process is to identify unlawful discrimination, including retaliation based on prior EEO activity, as soon as possible. When an agency identifies unlawful discrimination, it is required to end the discrimination, to prevent its recurrence, and to provide appropriate remedies. An additional benefit of processing complaints expeditiously is to bring closure to disputes as soon as possible.

An integral part of establishing a model EEO program is the effective use of Alternative Dispute Resolution(2) (ADR) to resolve disputes early in, and throughout, the EEO process. The EEO process has become increasingly more costly, adversarial, and lengthy. If an EEO complaint is pursued through the administrative appeal stage, the average processing time is over 2 years. ADR presents one significant way of addressing these concerns. Used properly, ADR can provide fast and cost-effective results while at the same time improving workplace communication and morale.

Since FY 2000, when the EEOC's regulations began requiring all federal agencies to establish or make available an ADR program, the total instances of counseling have decreased government-wide. After reaching its peak in FY 1999, the instances of counseling have substantially decreased from 63,349 in FY 1999 to 45,030 in FY 2003.

Figure 4 - Instances of EEO Counseling(3)
FY 1999 - FY 2003

Figure 4 - Instances of EEO Counseling FY 1999 - FY 2003 FY 2003
  1. Pre-Complaint Counseling Stage
    1. Pre-Complaint Counseling Workload
      • In FY 2003, Federal agencies provided pre-complaint counseling in 45,030 instances, a decrease of almost 20% from the 56,275 instances of counseling in FY 2002 and a 29% decrease from the 63,349 instances of counseling in FY 1999.
      • While 69% of counseling was performed by EEO counselors in FY 2003, 31% was conducted by ADR program intake counselors. However, actual participation in ADR is not dependent on where an individual receives his/her initial counseling.
    2. Timeliness of Pre-Complaint Counseling Activities
      • The 30-day pre-complaint counseling period may be extended an additional 60 days by written agreement or when the parties elect ADR. On average, agencies failed to meet timeliness requirements for providing EEO counseling.
      • The 90-day regulatory time limit was exceeded by EEO Counselors 12% of the time and by ADR intake counselors 23% of the time.
      • Small agencies, on average, completed counseling in a more timely manner than large agencies.

        - EEO Program Tips -

        To improve pre-complaint counseling times:

        1) Establish time frames for each major counseling task or activity.

        2) Monitor compliance with the established time frames and take immediate appropriate action for non-compliance.

        3) Require supervisors and managers to cooperate promptly with counselors. Advise counselors how to escalate non-cooperation from management.

        Table 2 - Timeliness of Pre-Complaint Counseling FY 2003

        Indicator Government- Wide Average Cabinet Agency Average Mid-Size Agency Average Small Agency Average
        % of instances of counseling completed within 30 days 37% 36% 45% 60%
        % of instances of counseling that exceeded 90 day time limit 15% 16% 9% 8%
    3. ADR Usage in the Pre-Complaint Stage

      - EEO Program Tips -

      To improve an ADR program:

      1) Obtain top-down support, including an ADR policy, mandatory management participation, and sufficient funding.

      2) Establish a One-Stop Shop - a standalone ADR program that handles all types of workplace disputes.

      3) Make a commitment to train all managers and employees on the benefits of ADR.

      • In FY 2003, ADR was used in 42% of all instances of EEO counseling, which represents an increase of 49% from the ADR participation rate (23%) in FY 2002. This increase is due, in large part, to an ADR offer rate that climbed from 47% in FY 2002 to 73% in FY 2003.
      • To reach EEOC's goal that parties participate in ADR in half of all instances of counseling, agencies should strive to offer ADR to at least 75% of all pre-complaint disputes.

      Figure 6 - ADR Usage in the Pre-Complaint Stage(4)
      FY 1999 - 2003

      Figure 6 - ADR Usage in the Pre-Complaint Stage FY 1999 - 2003
    4. Resolutions in the Pre-Complaint Stage
      • Of the 45,030 instances of counseling in FY 2003, 28,011 (62%) did not result in a complaint filed, including all settlements.
      • In FY 2003, 11,629 instances of counseling were resolved through ADR, resulting in a 60% resolution rate.
      • In FY 2003, 16,382 instances of counseling were resolved by an EEO Counselor, resulting in a 64% resolution rate.
      • Since FY 2000, ADR has averaged a 60% resolution rate in the pre-complaint stage, while EEO counselors have averaged 56%.

      Table 3 - Comparison of Pre-Complaint Resolutions
      FY 2000 - FY 2003

      Fiscal Year Completed Instances of Counseling Settlements No Formal Complaint Filed Monetary Benefits
      Total ADR Counseling ADR Counseling ADR Counseling ADR Counseling
      2000 52,611 15,985 36,626 7,056 7,162 2,954 10,915 $1,547,486 $5,421,947
      2001 47,658 18,143 29,515 8,318 3,632 1,787 10,620 $2,331,867 $2,138,988
      2002 56,275 12,886 43,389 5,888 3,162 2,129 23,151 $1,942,638 $584,900
      2003 45,030 19,382 25,648 7,168 1,031 4,461 15,351 $1,384,474 $1,776,091
      • Of the resolved instances of counseling in FY 2003, 8,199 entered into settlement agreements, including 603 settlements with monetary benefits, totaling $3,160,565.
      • In FY 2003, individuals in 7,168 instances of counseling settled their dispute through ADR, including 464 with monetary settlements totaling $1,384,474.
      • In FY 2003, individuals in 1,031 instances of counseling settled their dispute through an EEO Counselor, including 139 with monetary settlements totaling $1,776,091.

      Figure 7 - Total Monetary Benefits in the Pre-Complaint Stage(5)
      FY 2000 - FY 2003

      Figure 7 - Total Monetary Benefits in the Pre-Complaint Stage FY 2000 / FY 2003
  2. Formal Complaint Stage
    1. Formal Complaint Workload

      i. Analysis of Complaint Activities

      • The number of complaints filed decreased almost 8%, from 21,945 complaints filed in FY 2002 to 20,226 complaints filed in FY 2003.
      • A five-year trend shows that both the instances of EEO counseling and the number of complaints filed have decreased by 29% and 24%, respectively.
      • Although the number of complaint filings decreased, the number of individuals who filed complaints in FY 2003 increased by 4% (from 17,348 in FY 2002 to 18,077 in FY 2003), however, they decreased by 17.3% from the 21,868 in FY 1999.

        • Figure 8 - Complaints Filed Compared to
        Complainants and Instances of Counseling (6)
        FY 1999 - FY 2003

        Figure 8 - Complaints Filed Compared to Complainants and Instances of Counseling FY 1999 - FY 2003

        ii. Analysis of Bases and Issues in Complaints Filed

      • As in previous years, reprisal was the most frequent basis alleged for all complaints filed, representing 40% of all complaints filed.

        • Table 4 - Top 5 Bases Alleged (As Percentage of Total Complaints)
        FY 1999 - FY 2003

        Bases FY 1999 FY 2000 FY 2001 FY 2002 FY 2003
        Reprisal 53% 40% 40% 37% 40%
        Age 29% 24% 25% 24% 29%
        Race - Black 34% 34% 26% 26% 26%
        Sex - Female 30% 24% 25% 24% 25%
        Disability - Physical 24% 18% 21% 22% 24%
      • "Non-sexual Harassment" was the most frequently cited of all issues alleged in complaints, followed by "Promotion/Non-selection," and "Terms/Conditions of Employment."

      Table 5 - Top 3 Issues Alleged (As Percentage of Total Complaints)
      FY 1999 - FY 2003

      Issues FY 1999 FY 2000 FY 2001 FY 2002 FY 2003
      Harassment - Non-Sexual 41% 22% 26% 25% 28%
      Promotion/Non-selection 32% 18% 20% 17% 22%
      Terms/Conditions /Employment 23% 15% 15% 14% 13%

      - EEO Program Tips -

      To prevent unlawful discrimination and retaliation:

      1) Train all employees, including managers and supervisors on what constitutes unlawful discrimination/reprisal, the types of disciplinary actions that may be taken, and effective communication skills.

      2) Evaluate managers and supervisors on efforts to ensure equality of opportunity for all employees.

      3) Agencies should ensure that managers and supervisors have and utilize effective managerial and supervisory skills.

    2. Timeliness of Formal Complaint Activities

      i. Timeliness of Investigations

      • Regulations require that complaint investigations be completed within 180 days unless extended by written agreement, complaint amendment, or complaint consolidation.
      • On average, agencies failed to meet timeliness requirements for completing complaint investigations. Agencies exceeded the 180 day time limit in 60% of investigations completed in FY 2003.
      • Even with a written agreement to extend the investigation or when a complaint is consolidated or amended, regulations require that all complaint investigations be completed within 360 days. On average, agencies exceeded the 360 day time limit in 20% of investigations completed in FY 2003.
      • On average, small agencies completed investigations in a more timely manner than larger agencies.

        • - EEO Program Tips -

        To improve investigation times:

        1) Ensure EEO offices are adequately staffed with individuals who have the necessary knowledge, skills, and abilities.

        2) Eliminate unnecessary and redundant procedures that prohibit timely investigations.

        3) Develop or improve investigative tracking systems to monitor investigative time frames.

        4) Ensure agencies' EEO policy provides for full cooperation of employees under his/her supervision with EEO office officials such as EEO Counselors, EEO Investigators, etc., to gain timely compliance from complainants and agency management officials.

        Table 6 - Timeliness of Agency Investigations
        FY 2003

        Indicator Government- Wide Average Cabinet Agency Average Mid-Size Agency Average Small Agency Average
        Average Days to Complete Investigations 267 265 310 238
      • Federal sector agencies are failing to timely investigate allegations of discrimination for many reasons. EEOC review of the investigatory practices of four agencies found, among other reasons, that poorly staffed EEO offices, unnecessary and time consuming procedures, delays in obtaining affidavits, and inadequate tracking and monitoring systems contributed to untimely investigations.
      • On average, contract investigations were less timely (averaging 288 days) than those completed by in-house by agencies (averaging 253 days).
      • On average, it cost agencies an average $2,179 for contractors and $2,648 for in-house investigators to conduct an investigation.

      ii. Timeliness of Final Agency Decisions with no Administrative Judge's Decision

      - EEO Program Tips -

      To Improve Final Agency Decision times:

      1) Issue dismissal decisions within 30 days following receipt of a complaint.

      2) Assign a complaint for final decision drafting no later than the 36th day following a complainant's receipt of the hearing request notice (allowing 30 days for the complainant to make an election and 5 days for the agency to receive it).

      3) Specify a firm deadline for completing a draft decision. When determining the deadline, consider the time for review, revision, final approval, and the need to meet the regulatory time limit under 29 C.F.R. 1614.110(b).

      • Regulations require agencies to issue merit decisions within approximately 270 days unless there is an authorized reason to extend the investigation time beyond 180 days.
      • On average, agencies failed to meet the timeliness requirements for taking final action on complaints where hearings were not requested. Agencies averaged 475 days to issue a final agency decision when there was no decision from an EEOC AJ.
      • Government-wide, agencies took 207 days to issue a decision dismissing a complaint on procedural grounds such as untimely EEO counselor contact or failure to state a claim. EEO Management Directive 110 requires agencies to process dismissals expeditiously.
      • On average, smaller agencies issued final agency decisions without an AJ decision faster than large agencies.

      Table 7 - Timeliness of Complaint Processing
      FY 2003

      Indicator Government- Wide Average Cabinet Agency Average Mid-Size Agency Average Small Agency Average
      Average Days for Final Decisions without AJ Decision 475 472 529 468
    3. ADR Usage in the Formal Complaint Stage

      - EEO Program Tips -

      To Increase ADR Usage in the Formal Complaint Stage:

      1) Conduct ADR after the complainant has reviewed the investigative file but prior to issuing the 29 C.F.R. .1614.108(f) notice. See MD-110, Chapter 6, Section XI. Settlement opportunities may improve because the parties have a better understanding of the facts.

      2) If a factual record has been developed (i.e., the report of investigation), consider using ADR techniques that permit evaluative feedback by the neutral, such as settlement conferences and early neutral evaluation.

      • As a result of an ADR offer rate of 12% in FY 2003, ADR was utilized in only 7% of the complaints workload during the formal complaint stage.
      • A three-year trend analysis shows that the ADR participation rate has increased from 4% in FY 2001 to 7% in FY 2003.

        Figure 9 - ADR Usage in the Formal Complaint Stage (7)
        FY 1999 - 2003

        Figure 9 - ADR Usage in the Formal Complaint Stage FY 1999 / FY 2003
      • When ADR was employed during the formal complaint stage, mediation was the most frequently used technique (85%).

      - EEO Program Tips -

      The benefits of ADR include:

      1) By providing a safe forum for an open discussion, ADR may repair working relationships;

      2) With management showing a commitment to discuss employees' concerns, ADR may improve office morale;

      3) Settlement agreements are risk free for agencies because they do not require admissions of liability;

      4) Settlements through ADR are cost-effective because only 7% resulted in monetary benefits in FY 2003 and the average amount of monetary benefits was $3,607 over the last three years;

      5) Because parties have control over the resolution of their dispute, settlement agreements may be more durable than court decisions; and

      6) Since ADR averages a 60% resolution rate, it will save the parties significant time and resources, which also help agencies get to green on the Presidential Management Agenda (PMA) for human capital.

    4. Resolutions in the Formal Complaint Stage
      • Government-wide, 19,772 EEO complaints were resolved in FY 2003: 3,893 (19.7%) resulted in a final action on the merits following an EEOC AJ's decision; 5,287 (26.7%) were final agency decisions on the merits without an AJ's decision; 2,723 (13.8%) were procedural dismissals; 5,573 (28.2%) were settlements; and 2,296 (11.6%) were withdrawals.

        Table 8 - EEO Complaint Resolutions by Type with
        Government-wide Average Processing Times (APT) in Days

        Resolutions Final Agency Actions With AJ Decisions Final Agency Decisions Without AJ Decisions Procedural Dismissals Settlements Withdrawals
        Total APT Total APT Total APT Total APT Total APT Total APT
        FY 1999 29,822 423 3937 814 6238 566 9903 192 6961 436 2783 339
        FY 2000 27,177 472 5,766 772 5,216 N/A 7,836 N/A 5,794 507 2,565 350
        FY 2001 25,283 464 3,830 800 5,247 402 8,308 N/A 5,261 523 2,547 389
        FY 2002 22,889 418 3,841 833 5,467 326 5,770 205 5,606 482 2,205 309
        FY 2003 19,772 541 3,893 796 5,287 475 2,723 207 5,573 507 2,296 380
      • EEOC collects data on benefits awarded and actions taken in response to settlement agreements, final agency decisions, and final agency actions in which agencies agreed to fully implement EEOC AJ decisions.

    Table 10 - Comparison of Formal Complaint Resolutions
    by Settlement or Withdrawal With and Without ADR (9)
    FY 2000 - FY 2003

    Fiscal Year Total Complaint Closures* Settlements Withdrawals Monetary Benefits
    Total ADR Non-ADR ADR Non-ADR ADR Non-ADR
    2000 27,177 980 4,814 160 2,405 $4,528,032 N/A
    2001 25,283 1,336 3,925 150 2,397 $6,790,337 N/A
    2002 22,889 1,131 4,475 120 2,085 $5,914,384 N/A
    2003 19,772 1,375 4,198 171 2,125 $6,027,764 N/A

This page was last modified on May 14, 2004.

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