PART IV
SETTLEMENTS AND THE USE OF ADR IN THE FEDERAL SECTOR EEO PROCESS

The EEOC's Regulations, found at 29 C.F.R. Section 1614.603, require agencies to make reasonable efforts to voluntarily settle complaints of discrimination as early as possible in, and throughout, the administrative processing of EEO complaints. What follows is an analysis of FY 2002 settlements throughout the federal sector EEO process, including the use of alternative dispute resolution (ADR).

A. TOTAL RESOLUTIONS

Two types of resolutions are evaluated here: (1) settlements and withdrawals obtained through the EEO process (Non-ADR); and (2) settlements and withdrawals obtained through the use of an agency's ADR program, pursuant to 29 C.F.R. Section 1614.102(b)(2).

• The majority of EEO disputes have used non-ADR counseling.
• In FY 2002, in the pre-complaint and formal complaint processes, 80% of all informal matters proceeded through non-ADR counseling, and 90% of all formal complaints did not utilize ADR.
• EEO Counselors resolved 25,479 of the 44,186 informal matters (58%) that arose in FY 2002; however, that resolution rate is lower than the ADR resolution rate (71%).
• Similarly, the non-ADR complaint process resolved 6,560 of the 19,715 complaints (33%) that arose in FY 2002, yet that resolution rate is also lower than the ADR resolution rate (56%). Thus, the FY 2002 data suggests that if the use of ADR increased, the overall resolution rate would improve.

B. ALTERNATIVE DISPUTE RESOLUTION

1. BACKGROUND

ADR is a term used to describe a variety of approaches to resolve conflict rather than traditional adjudicatory or adversarial methods. Regulations found at 29 C.F.R. Section 1614.102(b)(2) require all federal agencies to establish or make available an ADR program during both the pre-complaint and formal complaint processes. The requirements for ADR programs in the federal sector EEO complaint process are outlined in Chapters 2 and 3 of EEO Management Directive-110 (MD-110).

2. STATUS OF FEDERAL SECTOR ADR PROGRAMS

• Of the 94 agencies that submitted a Form 462 report, 90 agencies reported that they have established or made available an ADR program in their EEO complaint process.⁽¹⁾
• Seventy-five of those agencies reported that 100% of their workforce had access to the program during FY 2002.
• Another 11 agencies reported that less than 100% of their workforce had access to an ADR program.
• More specifically, the percentage of the workforce for nine agencies was between 89% and 99%, and the percentage for two agencies was 18% and 60%, respectively.
• Four agencies did not provide any data regarding the size of their workforce due to security reasons.

3. ADR USAGE IN THE EEO PROCESS

Chapter 3 of the MD-110 establishes that agencies have the discretion to determine when an EEO matter is appropriate for ADR. Agencies can establish written procedures to identify when ADR will be offered or they can decide to offer ADR on a case-by-case basis. If an agency offers ADR and the aggrieved individual has elected to participate, the traditional counseling process ends.

a. Pre-Complaint Process

• During the pre-complaint process in FY 2002, individuals sought counseling from an EEO Counselor or an ADR Intake Officer in 55,441 informal matters.
• Agencies agreed to offer ADR to aggrieved individuals in 26,185 informal matters (47%); however, in 12,424 of those informal matters, the individuals declined to participate.
• Despite 13,761 instances when the agency offered ADR and the aggrieved individual elected ADR, management refused to participate in 952 of those matters.
• Of all the individuals counseled in FY 2002, 12,800 informal matters (23%) were accepted into ADR during the pre-complaint process.

The following tables rank the five agencies with 10 or more ADR offers which have the highest ADR offer rate and the highest ADR participation rate:

b. Formal Complaint Process

• In FY 2002, 21,945 formal complaints were filed.
• When the number of complaints filed is combined with complaints pending from the previous fiscal year and complaints remanded for investigation, there were 55,039 complaints in the total inventory.
• Agencies agreed to offer ADR to individuals who have filed 4,040 complaints out of the total inventory (7%); however, the complainants declined to participate in 1,758 complaints.
• In 2,282 complaints where the agency offered ADR and the complainant elected ADR, management refused to participate in 166 of those matters. Of the total inventory, 2,116 complaints (4%) were accepted into ADR during the formal complaint process in FY 2002.

The following tables rank the five agencies with 10 or more ADR offers which have the highest ADR offer rate and the highest ADR participation rate:

4. ADR ATTEMPTS

Federal agencies have flexibility in selecting the types of ADR techniques to use in their respective ADR programs. Agencies may consider their mission and their workplace culture to determine which ADR techniques will best meet the needs of their workforce.

a. Pre-Complaint Process

• In FY 2002, there were 55,441 informal matters where individuals sought counseling by an EEO Counselor or an ADR Intake Officer.
• Federal sector EEO programs attempted ADR in 11,255 (20%) of those informal matters.

i. Types of ADR Attempts

• Mediation was used more than any other ADR technique. In fact, mediation was selected in nearly 96% of all informal matters in which ADR was attempted.

ii. Average Processing Time

• The average processing time⁽⁴⁾ was 36 days for ADR attempts during the pre-complaint process.

b. Formal Complaint Process

• In FY 2002, 21,945 formal complaints filed were filed.
• When the number of complaints filed is combined with complaints pending from the previous fiscal year and complaints remanded for investigation, there were 55,039 complaints in the total inventory.
• Federal sector EEO programs utilized ADR in only 2,230 complaints (4%) of their total inventory.

i. Types of ADR Attempts

• Mediation was again used more than any other ADR technique.
• Mediation was selected in 73% of all formal complaints in which ADR was attempted.

ii. Average Processing Time

• The average processing time⁽⁵⁾ was 65 days for ADR attempts during the formal complaint process.

5. SOURCES OF NEUTRALS

The Administrative Dispute Resolution Act, 5 U.S.C. Section 571(9), defines a neutral as an individual who, with respect to an issue in controversy, functions specifically to aid the parties in resolving the controversy. In the federal sector, ADR programs have the discretion to select the source(s) of neutrals to conduct ADR proceedings; however, the programs must assure neutrality and impartiality on the part of the neutral.⁽⁷⁾

During FY 2002, federal sector ADR programs selected neutrals from the following sources: (1) in-house (employees within the agency); (2) another federal agency; (3) private organizations; (4) multiples sources; and (5) other sources.⁽⁸⁾

a. Pre-Complaint Process

• In the pre-complaint process, federal ADR programs selected neutrals from private organizations (including bar associations, individual volunteers, and contractors) in 70% of all attempts.

b. Formal Complaint Process

• In the formal complaint process, federal ADR programs selected neutrals from private organizations in 41% of all attempts.

6. ADR CLOSURES

Two types of ADR closures have been considered: (1) resolutions; and (2) no resolutions.⁽⁹⁾ The term "resolutions" includes settlements where individuals received monetary and/or non-monetary benefits, and matters where no formal complaint was filed or the complaint was withdrawn from the EEO process. The term "no resolutions" includes matters where ADR failed to resolve the dispute and other closures that did not resolve the dispute.⁽¹⁰⁾

a. Pre-Complaint Process

• As noted above, in FY 2002 there were 55,441 informal matters where individuals sought counseling by an EEO Counselor or an ADR Intake Officer. Federal sector EEO programs completed an ADR attempt in 12,886 (23%) of those matters.
• Of the informal matters that completed ADR, agencies reported that 8,017 (62%) resulted in a settlement or no complaint filed, and 4,869 (38%) did not resolve the dispute or resulted in other types of closures.

i. Average Processing Time

• The average processing time for ADR closures during the pre-complaint process in FY 2002 was 38 days.

The following table shows the five agencies with 10 or more ADR closures which have the fastest average processing time for completing ADR attempts in the pre-complaint process:

ii. Ranking Agencies By Resolution Rate

The following tables rank the five agencies with 10 or more ADR closures which have the highest ADR resolution rate during the pre-complaint process in FY 2002:

iii. Trend in the Resolution Rate

The following table identifies the trend in the ADR resolution rate in the pre-complaint process during the last two fiscal years:

b. Formal Complaint Process

• As noted above, in FY 2002 21,945 formal complaints filed were filed. When the number of complaints filed is combined with complaints pending from the previous fiscal year and complaints remanded for investigation, there were 55,039 complaints in the total inventory. Federal sector EEO programs completed an ADR attempt in 2,111 complaints (3.84%) of the total inventory.
• Of the formal complaints that completed ADR, agencies reported that 1,251 (59.26%) resulted in a settlement or withdrawal, and 860 (40.74%) did not resolve the dispute or resulted in other types of closures.

i. Average Processing Time

• The average processing time for ADR closures during the formal complaint process in FY 2002 was 82 days.

The following table shows the five agencies with 10 or more ADR closures which have the fastest average processing time for completing ADR attempts in the formal complaint process:

ii. Ranking Agencies By Resolution Rate

The following table ranks the five agencies with 10 or more ADR closures which have the highest ADR resolution rate during the formal complaint process in FY 2002:

iii. Trend in the Resolution Rate

The table below identifies the trend in the ADR resolution rate in the formal complaint process during the last two fiscal years:

7. ADR SETTLEMENT BENEFITS

The types of monetary benefits reported were: (1) compensatory damages; (2) back pay/front pay; (3) lump sum; (4) attorney's fees; and (5) other monetary benefits. The types of non-monetary benefits reported were: (1) new hire; (2) promotion; (3) reinstatement; (4) expungement of records; (5) transfer; (6) rescind removal/voluntary resignation; (7) reasonable accommodation; and (8) other non-monetary benefits.

a. Pre-Complaint Process

• In the pre-complaint process, ADR settlements were reached in 5,888 informal matters where individuals received monetary benefits and/or non-monetary benefits during FY 2002.
• Of those informal matters, 5,708 received non-monetary benefits, and 435 received monetary benefits, totaling $1,942,638.

i. Monetary Benefits

The following table shows the type and amount of monetary benefits that were received by individuals as a result of ADR settlements during the pre-complaint process in FY 2002:⁽¹²⁾

ii. Non-Monetary Benefits

The following table shows the type and number of non-monetary benefits that were received by individuals as a result of ADR settlements during the pre-complaint process in FY 2002:⁽¹⁴⁾

b. Formal Complaint Process

• In the formal complaint process, ADR settlements were reached in 1,131 complaints where individuals received monetary benefits and/or non-monetary benefits during FY 2002.
• Of those complaints, 779 received non-monetary benefits and 655 received monetary benefits, totaling $5,914,384.

i. Monetary Benefits

The following table shows the type and amount of monetary benefits that were received by individuals as a result of ADR settlements during the formal complaint process in FY 2002:⁽¹⁶⁾

ii. Non-Monetary Benefits

The following table shows the type and number of non-monetary benefits that were received by individuals as a result of ADR settlements during the formal complaint process in FY 2002:⁽¹⁸⁾

C. NON-ADR SETTLEMENTS

1. NON-ADR SETTLEMENTS DURING THE PRE-COMPLAINT PROCESS

• As noted above, in FY 2002 there were 55,441 informal matters where individuals sought counseling by an EEO Counselor or an ADR Intake Officer. EEO Counselors assisted individuals in settling 3,162 of those informal matters.
• These non-ADR settlements provided individuals with non-monetary benefits in 3,029 informal matters and monetary benefits in 133 informal matters, totaling $584,900.
• EEO counseling efforts also resulted in individuals deciding not to file a formal complaint in 22,317 informal matters.⁽²⁰⁾

The following table indicates the number and amount of monetary benefits that were received by individuals through non-ADR settlements in FY 2002:

2. NON-ADR SETTLEMENTS DURING THE FORMAL COMPLAINT PROCESS

• As noted above, in FY 2002 21,945 formal complaints were filed. Of those complaints, 4,475 were resolved through non-ADR settlement efforts, and 2,085 were withdrawn from the EEO process.

3. NON-ADR SETTLEMENTS DURING THE HEARING PROCESS

• In FY 2002, the hearings process resolved 11,666 complaints. Of those complaints, 3,841 were settled, and 1,893 were withdrawn.⁽²¹⁾

4. NON-ADR SETTLEMENTS DURING THE APPEALS PROCESS

• In FY 2002, the appellate process closed 9,452 appeals. Of those appeals, 136 were settled, and 87 were withdrawn.

1. The John F. Kennedy Center, the Peace Corps, and the Federal Retirement Thrift Investment Board reported that they did not establish or make available an ADR program in FY 2002. The Selective Service System did not complete any of the ADR sections in the Form 462 Report. The Government Printing Office reported that 100% of its employees have access to an ADR program, but the remainder of its report is incomplete.

2. Multiple techniques combined mediation with settlement, facilitation, or fact finding/conciliation.

3. Other types of ADR techniques include discussion, phone conciliation, and negotiation.

4. For each ADR attempt during the pre-complaint and formal complaint processes in FY 2002, the average processing time tracks the number of days between the date that the individual elected ADR and the date that the ADR attempt was completed.

5. For each ADR attempt during the pre-complaint and formal complaint processes in FY 2002, the average processing time tracks the number of days between the date that the individual elected ADR and the date that the ADR attempt was completed.

6. Because some federal agencies failed to report the number of days for 15 complaints that attempted ADR, Table IV-I has been adjusted to determine the average processing time.

7. Refer to Chapter 3 of MD-110 for more information about neutrals.

8. Examples of other sources of neutrals include the Department of Defense, Office of Complaint Investigation (OCI), and other unspecified sources.

9. The term "ADR closures" tracks the ADR attempts that were completed during the current fiscal year, including ADR attempts that were pending in the open inventory from the prior fiscal year.

10. Other reasons for closures include withdrawal prior to mediation and lack of cooperation.

11. For these purposes, Figure IV - R does not include eight complaints under "settlement" and three complaints under "no resolution," because the Defense Security Service failed to provide the number of days for its ADR closures.

12. The total number of informal matters that settled with monetary benefits does not equal the aggregate of each type of monetary benefit, since one settlement agreement could include more than one type of monetary benefit.

13. Other types of monetary benefits include step increases, performance appraisal changed, leave restored, awards, shift differential, out-of-pocket expenses, medical expenses, and relocation expenses.

14. The total number of informal matters that settled with non-monetary benefits does not equal the aggregate of each type of non-monetary benefit, since one settlement agreement could include more than one type of non-monetary benefit.

15. Other types of non-monetary benefits include modified appraisal rating, progress review, priority consideration, individual development plan, policy to improve recruitment methods, vacancy advertised, detail, desk audit, reassignment of duties, position description clarified, training, improved communication, schedule modified, neutral references, mock interview, 971 changed, leave restored/modified, change in duty location/telework, adverse action rescinded, and memorandum reaffirming anti-discrimination policy.

16. The total number of complaints that settled with monetary benefits does not equal the aggregate of each type of monetary benefit, since one settlement agreement could include more than one type of monetary benefit.

17. Other types of monetary benefits include quality step increase, step increase, performance appraisal changed, leave changed/restored, special act award, performance award, cash award, shift differential, out-of-pocket expenses, medical expenses, and relocation costs.

18. The total number of complaints that settled with non-monetary benefits does not equal the aggregate of each type of non-monetary benefit because one settlement agreement could include more than one type of non-monetary benefit.

19. Other types of non-monetary benefits include modified appraisal rating, priority consideration, detail, desk audit, reassignment of duties, position description clarified, training, modified working conditions positive/neutral references, leave restored/modified, change in duty location, converted to permanent status, special recognition for years of service, and adverse action rescinded.

20. The number of informal matters (22,317) that did not result in a formal complaint was determined by subtracting the number of ADR settlements (5,888), the number of ADR withdrawals (2,129), the number of non-ADR settlements (3,162), and the number of formal complaints filed (21,945) from the total number of informal matters (55,441). Due to limitations in the data collected, this number may also include a small number of informal matters that were pending at the end of the fiscal year.

21. The number of settlements reported in EEOC's Hearings Program did not identify any complaints that were resolved by ADR settlement efforts. As such, all settlements during the hearings process have been recorded as non-ADR settlements.

This page was last modified on June 26, 2003.

Return to Home Page