Environmental Protection Agency: Continued Improvement Needed in
Assessing Equal Employment Opportunity (26-JUN-03, GAO-03-462).
Minority employees at the EPA reported for a number of years that
the agency had discriminated against them based on their race and
retaliated against them for filing complaints. These issues were
aired at hearings held by the House Committee on Science at which
EPA said it would take actions to ensure a fair and
discrimination free workplace. GAO was asked to review (1) the
accuracy of EPA's equal employment opportunity (EEO) data, (2)
various issues about the processes used to resolve discrimination
complaints, and (3) the disciplinary actions taken for managers
who discriminate.
-------------------------Indexing Terms-------------------------
REPORTNUM: GAO-03-462
ACCNO: A07344
TITLE: Environmental Protection Agency: Continued Improvement
Needed in Assessing Equal Employment Opportunity
DATE: 06/26/2003
SUBJECT: Claims processing
Data collection
Employment discrimination
Internal controls
Racial discrimination
Statistical data
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GAO-03-462
A
Letter 1 Results in Brief 2 Background 5 System for Tracking EEO Data Was
Unreliable, but EPA Is Taking
Steps to Improve 6 EPA Lacks Standard Procedures for Resolving Complaints,
but This
Is Being Addressed 12 Staffing Levels Assigned for Complaint Resolution 12
EPA Took Steps to Speed Complaint Processing 14 EPA Has No Formal Process
to Discipline Managers for
Discrimination 15 Conclusions 19 Recommendations for Executive Action 19
Agency Comments 20
Appendix
Appendix I: Comments from the Environmental Protection Agency 22 Tables
Table 1: EPA Discrimination Complaints by Year as Reported to
EEOC, Fiscal Years 1995- 2002 8 Table 2: Number of Complainants and
Complaints Filed by Fiscal
Year, 1995- 2002 8 Table 3: Percentage of Total Discrimination Complaint
Cases
Represented by Various Bases, Fiscal Years 1997- 2001 10 Table 4:
Percentage of Total Discrimination Complaint Cases
Represented by Various Issues, Fiscal Years 1997- 2001 10 Table 5: OCR
Staffing, Fiscal Years 1995- 2002 13
Abbreviations
ADR Alternative Dispute Resolution EEO equal employment opportunity EEOC
Equal Employment Opportunity Commission OCR Office of Civil Rights
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June 26, 2003 Let er t The Honorable Eddie Bernice Johnson Ranking
Minority Member Subcommittee on Research Committee on Science House of
Representatives
The Honorable Sheila Jackson Lee House of Representatives The Honorable
Elijah Cummings House of Representatives The Honorable Albert Wynn House
of Representatives Four federal statutes- Title VII of the Civil Rights
Act of 1964, as amended; the Equal Pay Act of 1963; the Rehabilitation Act
of 1973; and the Age Discrimination in Employment Act of 1967- make it
unlawful for a federal employer to discriminate against an employee on the
basis of race, color, religion, sex, national origin, disability, or age.
For a number of years, some Environmental Protection Agency (EPA)
employees reported that, based
on race, EPA officials treated them differently from other employees in
terms of promotion, retention, and other employment- related decisions and
retaliated against employees for filing complaints. In addition, EPA has
faced charges that its Office of Civil Rights (OCR) has not conducted
proper and timely investigations of discrimination complaints,
specifically not meeting the 180- day time frame for completing complaint
investigations as required by regulation. Moreover, the agency allegedly
did not take disciplinary action against managers found to have
participated in discriminatory conduct.
These issues were the subject of hearings by the House Committee on
Science in the fall of 2000. EPA officials said at the hearing that they
would take a number of actions to improve the equal opportunity
environment, including providing sensitivity training to managers. EPA
also said it would improve its processing of discrimination complaints and
improve its system for tracking complaints.
In light of the issues raised at the hearing, you asked us to review (1)
the accuracy of EPA*s equal employment opportunity data on the number of
complaints and complainants since 1990 by type of complaint, settlement
method, outcome, and average processing time, (2) the processes to resolve
discrimination complaints, (3) the staffing levels assigned for complaint
resolution, (4) the components of the new plan devised to speed complaint
adjudication, and (5) the disciplinary actions the agency takes against
managers involved in discriminatory conduct. We reviewed equal employment
opportunity legislation and regulations
providing guidance to federal agencies and EPA*s processes developed to
implement these programs. Although you asked for data going back to 1990,
we are unable to provide these data because the agency expressed no
confidence in any data prior to 1995. EPA provided data for the fiscal
years 1995- 2002 period but due to an unreliable data system, we could not
independently verify the data provided. The EPA information covered the
number of discrimination complaints and complainants; complaints closed,
including those closed through settlement; and average processing times.
We analyzed the numbers, obtained internal supporting documentation, and
reviewed forms used to comply with Equal Employment Opportunity Commission
(EEOC) reporting requirements. We interviewed EPA officials and reviewed
documentation, including policies, statistics, and the development of the
plan establishing a course of action to alleviate past problems with
discrimination case backlogs. We also reviewed EPA*s record of taking
disciplinary actions against managers found to have participated in
discriminatory conduct. Our work was done from February 2002 through April
2003 in accordance with generally accepted government auditing standards.
Results in Brief EPA did not have accurate EEO information because of
problems with its data system, especially related to data entry problems.
We identified
problems with the data EPA provided us for 1995 through 2002. EPA then
manually reconstructed the discrimination complaint data that are provided
in this report. Although we did a limited review of these data and believe
that they are indicative of EPA*s situation, we cannot attest to their
accuracy. EPA recently procured new software to facilitate accurate
tracking and reporting of EEO information and believes that the new system
will rectify data problems.
EPA*s manually reconstructed data for fiscal years 1995 through 2002 show
that during this period 548 EPA employees filed 679 discrimination
complaints, and the agency closed 588 complaints. The closed
discrimination complaints consisted of 125 dismissals, 48 withdrawals, 178
settlements, 5 remands, and 222 agency decisions not in favor of the
complainant. EPA made no findings of discrimination during this time. Our
analysis showed that discrimination complaints focused mainly on
race, reprisal, gender, and age; the main issues addressed were
nonselection for promotion, appraisal, harassment, and time and
attendance. For the 178 discrimination cases EPA settled during the 8
years, the average number of days from complaint filing to settlement was
671 days. Overall, EPA discrimination complaint investigations during
these years were completed in an average of 465 days, significantly longer
than the allowed time, which is normally 180 days. Only 8 percent of
investigations were completed within the time limit. For all 588
complaints closed, the average number of days from complaint filing to
closing was 663 days. When compared to the other 23 agencies that are
required to comply with the Chief Financial Officers (CFO) Act of 1990,
EPA*s total number of days to process a complaint from filing to closing
ranked fifth highest in 2002. EPA has never had standard operating
procedures for complaint processing, which are required by regulation (29
C. F. R. 1614.104 (a)). EPA officials told us that discrimination
complaints were processed under general guidance provided by EEOC. In July
2001, EPA*s OCR prepared draft standard operating procedures to process
complaints, and OCR
officials say they currently use these procedures. The procedures are
still in draft. In EPA*s 2001 Federal Managers* Financial Integrity Act
report, EPA
officials identified OCR staffing levels as a material weakness requiring
attention. OCR staffing levels have risen in the past 3 years as have the
number of complaints. Since 2000, OCR has added a team leader, equal
employment opportunity specialists, a program analyst, and clerical staff.
OCR intends to hire additional staff in fiscal year 2003. Last year, OCR
augmented its EEO staff by training an additional 20 EPA staff members to
serve as EEO counselors on a part- time basis.
In addition to increasing OCR staffing, EPA has taken other steps to
reduce discrimination complaint processing times. OCR terminated contracts
with private EEO investigative firms that it considered ineffective. OCR
said that investigations conducted by previous contractors did not meet
EEOC requirements and had to be redone, which led to increased processing
times and backlogs. The new contractors are, according to OCR officials,
providing timely and sufficient investigations. In addition,
EPA*s Administrator created a complaint case closure task team in May
2001 to reduce the extensive discrimination complaint backlog, which
totaled 139 cases pending over 180 days without a completed investigation
as of June 2001. When the team was dissolved in October 2001, only 12 of
the 139 cases did not have completed investigations. As of March 2003, a
total of 29 pending discrimination complaint cases did not have
investigations completed within 180 days.
Since 1995, EPA has not disciplined any managers or employees for
discriminatory conduct. However, agency officials said that the agency had
used training to rectify and prevent discriminatory conduct. EPA does not
have a specific process for determining whether managers involved in
discrimination complaints did in fact discriminate and, if so, whether
managers should be disciplined. Other agencies, such as the Internal
Revenue Service (IRS) and the Department of Agriculture, have processes
and policies that hold managers and employees accountable for
discriminatory conduct. IRS and Agriculture review cases in which
discrimination was found or settlement agreements were reached to
determine if discrimination occurred. If a manager or employee is found to
have discriminated, the agencies can take corrective action, such as
reprimands, suspensions, reductions- in- grade, or removals. Besides
lacking a process to determine if managers discriminated, EPA does not
have a process in place to track disciplinary actions taken against
managers. EPA will be required to collect and report the number of agency
employees disciplined for discrimination, harassment or retaliation under
the provisions of the Notification and Federal Employee AntiDiscrimination
and Retaliation (No FEAR) Act, effective in October 2003 (Pub. L. 107-
174).
We recommend that EPA ensure that its EEO software system procurement
resulted in a reliable system for tracking cases and accumulating
accountability data for EEOC. EPA should also finalize its draft complaint
processing procedures and develop a process that assesses every case in
which discrimination is found, or allegations of discrimination are
settled, to determine whether managers, or other employees, should be
disciplined.
In commenting on the report, EPA said it generally agrees with our
findings. The agency said in response to the third recommendation that it
would develop policies and procedures that will allow EPA to address
effectively the issue of disciplinary action against any manager or
employee found to have discriminated. This action would not fully address
the
recommendation because it does not address cases in which allegations of
discrimination are settled. EPA*s comments did not mention the other two
recommendations. EPA*s comments are reprinted in appendix I.
Background EPA was established in 1970 to protect human health and
safeguard the natural environment. EPA is staffed with large numbers of
technically
trained personnel; more than half of its employees are engineers,
scientists, and environmental protection specialists. Today, it employs
18,000 people.
EPA is headquartered in Washington, D. C., and has 10 regional offices and
laboratories across the country. EPA*s OCR, a staff office in the Office
of the Administrator, is responsible for managing the agency*s
discrimination complaints program. This program is intended to ensure that
all EPA employees and applicants for employment are afforded equal
employment and advancement opportunities free of discrimination. Moreover,
OCR is responsible for the timely processing and resolution of
discrimination complaints. Specifically, discrimination complaints are
processed by OCR*s Compliance and Internal Resolution Team.
Over the years, allegations and complaints have been made that EPA
tolerates discrimination, retaliates against whistleblowers, and fails to
take corrective action on these matters. The agency*s policies and
practices were further questioned when an employee won a high profile
court case in 2000. 1 EPA*s EEO practices have also attracted
congressional interest in general and about untimely complaint processing
in particular. Hearings
before the House Committee on Science in October 2000 highlighted alleged
discriminatory conduct.
EPA, like other federal agencies, is required to comply with the nation*s
civil rights laws. Title VII of the Civil Rights Act of 1964, as amended,
makes it illegal for employers to discriminate against their employees or
job applicants on the basis of race, color, religion, sex, or national
origin (42 U. S. C. 2000e et. seq). The Equal Pay Act of 1963 protects men
and women who perform substantially equal work in the same establishment
from sex- based wage discrimination (29 U. S. C. 206( b)). The Age
Discrimination in Employment Act of 1967, as amended, prohibits employment
discrimination against individuals who are 40 years of age and older (29
U. S. C. 621 et seq.). Sections 501 and 505 of the Rehabilitation Act
1 Coleman- Adebayo v. Browner, Administrator, U. S. Environmental
Protection Agency, No. 1.98cv1939 (D. D. C., Aug. 5, 1998).
of 1973, as amended, prohibit discrimination against qualified individuals
with disabilities who work or apply to work in the federal government (29
U. S. C. 791 and 794a). Federal agencies are required to make reasonable
accommodations to qualified employees or applicants with disabilities
except when such accommodation would cause an undue hardship. EEOC is
responsible for enforcing all of these laws. In addition, a person who
files a complaint or participates in an investigation of an EEO complaint
or who opposes an employment practice made illegal under any of the
statutes enforced by EEOC is protected from retaliation or reprisal. EPA*s
EEO program, like those in other agencies, is subject to several
regulations. EPA is responsible for developing and implementing its own
equal employment program, including establishing or making available
alternative dispute resolution programs and adopting complaint processing
procedures as required by 29 C. F. R. Part 1614. EEOC Management Directive
110 (Federal Complaints Processing Manual) provides general guidance on
how agencies should process employment discrimination complaints. Agencies
are also required to provide EEO discrimination complaint data to EEOC (29
C. F. R. 1614.602.). EEOC compiles these data and reports them to Congress
each year in the EEOC Annual Report on the
Federal Workforce.
System for Tracking Information contained in EPA*s discrimination
complaint data system was
EEO Data Was unreliable because of data entry problems. EPA officials also
maintain
that the computer software, which was obtained from a now defunct
Unreliable, but EPA Is
supplier, was flawed and not able to report data accurately. Reliable
Taking Steps to
discrimination complaint data are necessary for EPA*s OCR to track Improve
complaints and look for trends that might indicate the need for specific
actions and to respond to EEOC reporting requirements. EPA recently
implemented a new EEO data system and is taking steps to train staff
members and hold them accountable for maintaining the data system. EEO
Data Tracking System
Officials attributed data system weaknesses in part to a now defunct data
Was Unreliable
management company whose data system was used to track and process
discrimination complaint information. Officials said the system was flawed
and was further compromised because EPA*s EEO specialists did not always
enter, update, or maintain discrimination complaint data. As a result, EPA
had difficulty providing accurate EEO information. Moreover, EPA had
trouble discerning if there are trends in workplace problems that
lead to EEO complaints; this in turn has inhibited understanding sources
of conflict and planning corrective actions. EEOC regulations point out
that agencies should make every effort to ensure accurate record keeping
and reporting of EEO data. Data fosters
transparency, which provides an incentive to improve performance and
enhance the image of the agency in the eyes of both its employees and the
public. We initially requested discrimination complaint data for a 10-
year period (1991- 2000). However, OCR officials said they had no
confidence in discrimination complaint data prior to fiscal year 1995
because the data are
unreliable and source documents were not available to permit its
reconstruction.
OCR provided discrimination complaint data for fiscal years 1995 through
2002; however, in reviewing these data, we found that the information was
incorrect. These data understated the actual number of discrimination
complaints on hand, the number of new discrimination complaints filed, the
number of complaints closed, and the year ending numbers. Also the
data provided to us differed from the discrimination complaint data
reported to EEOC. For example, the number of discrimination complaints on
hand at the end of fiscal year 2000 was reported to us as 176, but EPA
reported to EEOC that the number was 264. The number of new discrimination
complaints filed in 2000 was reported to us as 79, but the number reported
to EEOC was 75.
After we pointed out some problems with the data, OCR manually reviewed
source documents and revised these numbers. We did not verify the accuracy
of the revised numbers because doing so would have required considerable
effort to reconstruct all the data. To determine if the numbers provided
for complaints on hand, new, closed, and ending were supportable, we
reviewed the information EPA reconstructed, including handwritten notes.
We also selected a number of supporting documents for review and found
that the data reported agreed with the supporting documentation. These
documents were also reviewed to determine if the numbers of complaints
reported to us matched those reported to EEOC. Although we believe the
reconstructed numbers are indicative of the situation at EPA, we cannot
attest to the overall accuracy of these data. Table 1 shows the number of
complaints on hand at the start of the year
and the number of new, closed, and on hand at the end of the year for
fiscal years 1995 through 2002 as reported to EEOC. The number of
complaints closed fluctuated from a low of 44 in 1999 to a high of 123 in
2001.
Tabl e 1: EPA Discrimination Complaints by Year as Reported to EEOC,
Fiscal Years 1995- 2002
Complaints 1995 1996 1997 1998 1999 2000 2001 2002
On- hand 145 142 145 a 167 a 197 243 189 b 149 c New 76 62 83 116 78 75 85
104 Closed 78 57 63 86 44 54 123 83
Ending 142 d 147 165 197 243 d 264 157 d 171 d
Source: EPA. Note: Notes based on GAO analysis of EPA data. a Differs from
ending number for undetermined reasons.
b Differs from 2000 ending balance because EPA discovered that it had
failed to remove 75 cases closed during 2000. c Differs from the ending
number for 2001 because EPA discovered that it had failed to remove 8
cases
closed during 2001. d Column does not total correctly because of EPA
reporting errors.
For fiscal years 1995 through 2002, a total of 548 people filed 679
complaints. The number of discrimination complainants is usually less than
the number of complaints filed because more than one complaint can be made
by a complainant. As table 2 shows, the number of complainants and
discrimination complaints filed spiked in fiscal years 1998 and 2002. OCR
officials could not provide any explanation for the increased complainants
and complaints filed in these years. Tabl e 2: Number of Complainants and
Complaints Filed by Fiscal Year, 1995- 2002
Fiscal year Number of complainants Complaints filed
1995 40 76 1996 48 62 1997 73 83 1998 90 116 1999 60 78 2000 68 75 2001 78
85 2002 91 104
Tot al 548 679
Source: EPA.
The agency closed 588 complaints during this period, including 125
dismissals; 2 48 withdrawals; 222 agency decisions, none of which found
for the complainant; and 178 settlements. Settlements represented 30
percent of all discrimination complaints closed over the period. In each
year from fiscal year 1996 to 2000, the number of cases settled at the
agency numbered less than 20, while 54 cases were settled in 2001. These
settlements represented 44 percent of all discrimination complaint cases
closed in 2001. According to agency officials, a number of settlements
were reached during 2001 as part of an effort to eliminate the large
number of backlogged complaints.
Settlements can be achieved by different methods. For example, for the
years 1996 through 2001, a total of 29 discrimination complaint cases were
settled at the EEOC hearing stage while another 7 cases were settled while
pending before federal district courts. Beginning in 2000, as required by
EEOC, EPA began a program to make Alternative Dispute Resolution
(ADR) 3 available in precomplaint and formal complaint processes. The
agency uses mediation as its alternative method to resolve EEO complaints
and administrative grievances. During the first 6 months of fiscal year
2003, there were 18 requests for mediation, of which 14 EEO cases were
accepted for mediation, 1 case is under review, and 3 cases are pending
further action. The data showed that headquarters discrimination
complaints focused
mainly on race, reprisal, gender, and age. The specific issues addressed
in these complaints were non- selection for promotion, appraisal, and
harassment. Similarly, in regional offices the most often cited bases for
discrimination complaints were race, reprisal, and gender. The specific
issues most cited in the regional complaints were non- selection for
promotion, appraisal, harassment, and time and attendance. Table 3 lists
the percentages of complaints by the bases of complaint. Table 4 lists the
percentages of complaints by the issues of the complaint.
2 In lieu of accepting a complaint for investigation, federal agencies,
can dismiss a complaint for several reasons as listed in 29 C. F. R.
1614.107. 3 ADR refers to any procedure agreed to by the parties of a
dispute that is used to resolve issues in controversy including, but not
limited to, conciliation, facilitation, mediation, or arbitration.
Tabl e 3: Percentage of Total Discrimination Complaint Cases Represented
by Various Bases, Fiscal Years 1997- 2001 Race Age Sex Reprisal Other FY
bases Hdq. Region Hdq. Region Hdq. Region Hdq. Region Hdq. Region
1997 20 27 15 22 25 19 26 20 13 12 1998 27 23 15 27 15 14 22 22 20 14 1999
28 24 12 22 17 18 33 25 10 12 2000 22 26 18 18 14 17 27 26 19 13 2001 25
28 11 14 18 19 26 26 19 13 Source: EPA.
Note: Other bases for discrimination complaints include religion, national
origin, and disability.
Tabl e 4: Percentage of Total Discrimination Complaint Cases Represented
by Various Issues, Fiscal Years 1997- 2001 Promotion/ Non- Selection
Evaluation/ Appraisal Harassment Time/ Attendance Other
FY issues Hdq. Region Hdq. Region Hdq. Region Hdq. Region Hdq. Region
1997 36 63 14 9 6 9 10 13 34 7 1998 38 56 15 10 6 13 6 7 35 16 1999 41 53
13 14 17 14 4 2 25 16 2000 41 43 2 2 8 15 13 6 36 34 2001 43 40 3 5 25 18
1 8 28 30 Source: EPA.
Note: There are 25 issues categories; the top 4 are listed and the
remaining issues are categorized under other.
EPA takes a long time to process complaints. Over the fiscal years
19952002 period, it took an average of 663 days from the time a complaint
was filed until it was closed. A major contributing factor to this lengthy
process was the time used to investigate complaints. Over the same 8- year
period, the average time to complete an investigation was 465 days.
EEOC regulations require EPA and other agencies to complete investigations
within 180 days of receiving discrimination complaints unless the period
is extended. 4 In 2002, the average number of days for completed
investigations was 427 days in comparison to the 180- day standard.
Discrimination complaint cases closed in 2002 took an average 839 days to
process. When compared to the other 23 agencies that are required to
comply with the CFO Act, EPA*s total number of days to process a complaint
from filing to closing ranked fifth highest in 2002.
EPA Addressing Reliability EPA is taking steps to improve data system
reliability. It contracted with a
of Data System company to procure an EEO data system and to train
employees on how to use the new software program. This software (EEO- Net)
is designed to automate data entry, case tracking, and reporting
requirements. The
procurement process began in February 2002, and it was originally
estimated that the new system would be in place and fully operational in
June 2002. An EPA official told us that the EEO- NET system became
operational on January 15, 2003. OCR is depending on this new system to
alleviate many of the inaccuracies and inconsistency problems with
discrimination complaint data. Its
implementation is also expected to permit identification of trends, to
alert both regional and headquarters staff members of problem areas, and
to serve as an early warning system. According to EPA officials, the new
system is expected to automatically and accurately generate data for
completing EEOC*s Annual Federal Equal Employment Opportunity Statistical
Report of Discrimination Complaints. The Air Force has successfully used
the EEO- Net software program for over 3 years for military personnel and
is installing the program for use with its civilian workforce. Officials
at the National Labor Relations Board, Broadcast Board of Governors,
Government Printing Office, and EEOC have all recently installed the
system and are pleased with the results thus far. As discussed previously,
data in the old system were not accurately
entered, updated, or maintained by EEO specialists. In an interim effort
to resolve these data problems, OCR hired a person whose responsibilities
include entering, updating, and maintaining the data. OCR is also
developing new performance standards for EEO specialists that rate them
4 The period can be extended when the parties agree and under other
circumstances. 29 C. F. R. 1614.108 (e), 29 C. F. R. 1614. 108( f), 29 C.
F. R. 1614.606.
on inputting and maintaining the data. The new performance standards are
intended to ensure that the data problems do not occur again. Specialists
are to be held accountable for maintaining accurate discrimination
complaint data as part of their assigned duties. EPA Lacks Standard
According to OCR officials, EPA has never adopted standard operating
Procedures for
procedures for processing internal complaints of discrimination, but it
developed draft procedures in July 2001. Although these procedures are in
Resolving Complaints,
draft form, OCR*s staff uses them as guidance. EPA officials said they
were but This Is Being waiting until the EEO- Net software is fully
operational to finalize the
Addressed standard operating procedures. The system became operational in
January 2003, but as of May, the procedures were still in draft form. The
draft standard operating procedures provide detailed step- by- step
instructions for OCR*s staff to follow, from when a complaint is filed
through final resolution. For example, Section II,* Checklist for
Preparing Correspondence,* includes instructions on when and how to
prepare mailings related to discrimination complaints. Section IV of the
procedures addresses the steps necessary for OCR to process individual
complaints, including steps to follow upon complaint receipt, complaint
acknowledgment, request for EEO Counselor*s Report, and all subsequent
steps of the process up to the complaint*s resolution at the formal stage.
The draft standard operating procedures also identify data that can be
used by OCR for trend analysis and address management and tracking of
counselor assignments. Staffing Levels
OCR*s staffing has increased from four to nine in the past 8 years, and
the Assigned for Complaint
office plans to hire additional staff members. (See table 3.) EEOC
regulations require that agencies provide sufficient resources to their
EEO Resolution
programs to ensure efficient and successful operation. 5 EPA*s 2001
Federal Managers* Financial Integrity Act Report stated that EPA was
unable to process complaints in a timely manner and identified this
situation as a material weakness and an agency weakness. The most recent
report states that OCR had hired additional staff members and made other
changes, such as changing contactors who conduct investigations, and now
believes it
5 29 C. F. R. Part 1614.102 (a) (1).
can ensure the timely processing of discrimination complaints and
recommends that this material weakness be closed.
Tabl e 5: OCR Staffing, Fiscal Years 1995- 2002 Staffing 1995 1996 1997
1998 1999 2000 2001 2002
GS- 15 1 1 1 1 1 1 1 1 EEO Specialist 3 3 3 2 2 3 4 4 GS- 13 Program
Analyst 0 0 0 1 1 1 1 1
GS- 12/ Management Analyst 0 0 0 0 1 1 1 1
Data Analyst 0 0 0 0 0 0 1 1 Administrative Support 0 0 0 0 0 0 1 1
GS- 4 Clerical 0 0 0 1 1 0 0 0
Tot al st af f 4 4 4 5 6 6 9 9
Source: EPA. Note: GAO analysis of EPA*s OCR staffing data.
OCR officials told us that additional staffing would help facilitate
timely processing of discrimination complaints. In June 2002, they said
that they had two vacancy announcements out to recruit an additional GS-
13 Equal Employment Specialist to process complaints and one GS- 14 Senior
Equal Employment Specialist to develop final agency decisions, prepare
appeal briefs, and process complex complaint cases. OCR is currently
planning to fill only the GS- 14 position and, as of May 2003, the
selection process was still under way. In addition, OCR embarked on a
training effort in 2001 to increase the
numbers of collateral duty counselors. As a result, an additional 20
counselors were trained to serve as first points of contact for employees
considering filing discrimination complaints. These counselors are not
fulltime. They perform counseling duties in addition to their other
assigned duties. The EEO counselors* responsibility is to ensure that
complainants understand their rights and responsibilities under the EEO
process. Specifically, the counselor must let the complainants know that
they can
opt for precomplaint resolution through participation in ADR or EEO
counseling. Counselors also determine the claim and bases raised by the
potential complaint, determine the complainant*s timeliness in contacting
the counselor, and advise the complainant of the right to file a formal
complaint if ADR or counseling fails to resolve the dispute.
EPA Took Steps to EPA has not processed complaints in a timely manner, and
has had a longstanding
Speed Complaint backlog of overdue cases. The backlog was caused in part
by
problems with contractors that conducted investigations that did not meet
Processing
evidence standards as outlined in EEOC regulations. 6 According to OCR
officials, some of the investigations performed by companies formerly used
by the office failed to provide adequate factual records required by EEOC
regulations. As a result, these inadequate investigations did not contain
the facts needed, and the investigations were reassigned and redone
resulting in more time added to complaint processing. Because of these
problems with incomplete and poorly done investigations, OCR terminated
contracts with certain investigative firms.
In June 2002, OCR contracted with a new company to conduct discrimination
complaint investigations. An OCR official told us that the company has
demonstrated its ability to perform thorough and complete investigations
that meet EEOC*s standards for investigations. OCR now contracts with six
companies to investigate complaints and is satisfied overall with the
investigations performed. Also, OCR*s draft standard operating procedures
for processing complaints of discrimination require that, prior to
starting an investigation, OCR provide each investigator a copy of its
guidelines for conducting EEO investigations to ensure that investigators
understand what is required of them. The office currently has a blanket
purchase agreement in place to hire four additional companies to perform
investigations. Because of the relatively recent start of the contract, an
OCR official said that OCR did not have enough statistical data to
evaluate contractor effectiveness. However, OCR said
that the situation regarding investigations was satisfactory. In addition,
EPA helped speed adjudication of backlogged cases by creating a special
task team in May 2001. The initial focus of the team efforts was on the
completion of investigations and preparation of final agency decisions on
backlogged complaints. Officials provided a final report that discussed
the team*s actions and how its stated mission was accomplished. At the
beginning of the team*s work, 139 discrimination complaints were
6 29 C. F. R. 1614.108 (b).
identified as active with investigations not completed for 180 days or
more as of June 1, 2001. The report said that 45 reports of investigation
were completed and 17 were drafted and were under review, 18 final agency
decisions were issued and an additional 11 were drafted and under review,
10 cases were settled, 9 cases were withdrawn or dismissed, and 27
complainants had requested EEOC hearings. Only 12 of the 139 complaints
were still waiting for completion of an investigation.
In February 2002, OCR also selected a contractor to augment OCR*s staff by
providing EEO counseling, performing EEO investigations, and writing draft
agency decisions. All draft agency decisions written by the contractor are
to be reviewed and revised, if necessary, by the Office of General
Counsel. OCR officials said that OCR staff members are required to review
draft decisions written by the contractor within 48 hours. EPA officials
said that they hope this policy will help prevent discrimination complaint
case backlogs from occurring as they had in the past. Moreover, OCR says
it now works during the early stages of the complaint process to move
discrimination complaints to the ADR process, as appropriate. If ADR is
successful, this can obviate the need for investigations.
EPA Has No Formal In the event that a manager or employee is formally
found to have
Process to Discipline discriminated, EPA is supposed to determine on a
case- by- case basis
whether individual employees should be disciplined. However, EPA does
Managers for
not have a process in place to review discrimination complaint settlements
Discrimination
to determine if any manager or employee has participated in improper
conduct and should be disciplined. Agency officials said that settlements
are no fault, and in settlements no one admits to any wrongdoing and no
process is in place to make such determinations. We recognize that EEO
complaints can be settled without there having been discriminatory conduct
involved in the case. For example, an employee who is not promoted may
believe the reason was because of his or her race and file an EEO
complaint on this basis. When the case is reviewed the agency could find
that while race was not a factor, the manager did not adhere to other
requirements of the merit promotion system. As a result, the agency could
settle the complaint by agreeing to recompete the promotion and ensure
that all rules are followed and that the complainant would receive fair
consideration in the recompetition. However, the possibility of
settlements not being related to discriminatory conduct does not alter the
fact that not having a process to determine whether discrimination was
involved means that any settlements involving discrimination may not be
identified as such.
EPA officials said that they provide managers the opportunity to change
their behavior through training rather than taking disciplinary action.
For example, in 2001 senior agency officials expressed concerns about
managers* conduct and their compliance with Title VII of the Civil Rights
Act of 1964, as amended. These concerns led to a contract with EEOC to
conduct a 2- day mandatory training program for all 1,600 EPA managers in
June 2002. EPA officials said that the training has improved managers*
interaction with employees. However, it is unclear whether the improved
management interaction with employees will result in fewer discrimination
complaint filings. Officials also said that the agency has EEO performance
standards for
Senior Executive Service managers. Managers are evaluated according to
their efforts to support EEO and fairness as part of the process for
determining who gets awards. In addition, since 2001 EPA has required all
employees to sign statements acknowledging the agency*s zero- tolerance
policy towards discrimination or harassment by managers, supervisors, or
employees.
Accountability is a cornerstone of results- oriented management. Because
EPA*s managers set the conditions and terms of work, they should be
accountable for providing fair and equitable workplaces, free of
discrimination and reprisal. If EPA*s managers are not held accountable
for their actions in cases in which discrimination has occurred, employees
may not have confidence in the agency*s EEO disciplinary process, and
employees may be unwilling to report cases of discrimination.
Further, our past work has found that agencies that promote and achieve a
diverse workplace attract and retain high- quality employees. 7 For public
organizations, this translates into effective delivery of essential
services to communities with diverse needs. Leading organizations
understand that they must support their employees in learning how to
effectively interact with and manage people in a diverse work place.
Fostering an environment that is responsive to the needs of diverse groups
of employees
requires identification of opportunities to train managers in techniques
that create a work environment that maximizes the ability of all employees
to fully contribute to the organization*s mission. A high- performing
agency maintains an inclusive workplace in which perceptions of unfairness
are
7 See U. S. General Accounting Office, A Model of Strategic Human Capital
Management,
GAO- 02- 373SP (Washington, D. C.: March 2002).
minimized and workplace disputes are resolved by fair and efficient means.
One way to foster openness and trust by employees is to have in place
systems that hold employees responsible for discriminatory actions.
Agriculture and IRS
Agriculture Process: In February 2003, EEOC issued a report on Processes
Address
Agriculture*s EEO program. In this report, EEOC applauded Agriculture
Managerial Accountability
for *holding managers accountable for their actions and disciplining them
where appropriate.* Since January 1998, Agriculture has reviewed cases in
which discrimination was found or in which there were settlement
agreements to determine if employees should be disciplined. The agency*s
regulations state that managers, supervisors, and other employees are to
be held accountable for discrimination, civil rights violations, and
related misconduct, as well as for ensuring that Agriculture*s customers
and employees are treated fairly and equitably. Agriculture agencies are
to take
appropriate corrective or disciplinary action, such as reprimands,
suspensions, reductions in grade and pay, or removal. Final decisions
containing a finding of discrimination and settlement and conciliation
agreements are referred to the agency*s Human Resources Management Office
for appropriate action. This office monitors corrective and
disciplinary actions taken in EEO and program discrimination matters. As a
result of its process, Agriculture has taken over 200 corrective and
disciplinary actions against managers and other employees since 1998,
including removals, suspensions, and letters of reprimand.
IRS Process: IRS offers another example of an agency process to review
settled EEO complaints to assess whether employees should be held
accountable. Since July 1998, IRS has been reviewing cases in which
discrimination was found or in which there were settlement agreements to
determine if the discrimination was intentional. Where an employee has
been found to have discriminated against another employee (or against a
taxpayer or a taxpayer*s representative), the Internal Revenue Service
Restructuring and Reform Act of 1998 provides that the individual be
terminated (Pub. L. 105- 206, Section 1203, July 22, 1998). Only the IRS
Commissioner has the authority to reduce termination to a lesser penalty.
If there is a finding of discrimination, a settlement agreement is
reached, or
EEO issues are raised during the negotiated grievance process, IRS*s
Office of Labor Relations refers the matter to the National Director, EEO
Diversity, Discrimination Complaint Review Unit. Local and headquarters
EEO offices can also refer cases to the unit. This review is designed to
alert management of any EEO- related misconduct regardless of the formal
pursuit of a remedy by an employee. When it receives a case, the unit
determines whether formal review and fact- finding is required before
making a decision. If so, the case file is forwarded to the Department of
the Treasury*s Inspector General for Tax Administration, with a copy of
the allegation referral form to Labor Relations. Formal reviews are to be
completed within 60 days. Labor Relations coordinates with the head of the
involved office if the unit finds no potential violations. The office head
is responsible for determining the appropriate administrative disposition.
The office conducts a limited review of referred cases at the precomplaint
stage; after a formal complaint, formal withdrawal, or lapsed case due to
employee inaction; or if there was no finding of discrimination. This
review makes management aware of any EEO- related misconduct regardless of
the formal remedy sought by an employee.
EPA Does Not Track Besides not having a process to determine whether
managers
Disciplinary Actions against discriminated in settled cases, EPA does not
have a process to track or Managers, but a New Law
routinely report data on disciplinary actions taken against managers for
Requires This Information
discrimination or other types of misconduct. Data of this nature are
important because they can be a starting point for agency decision makers
to understand the nature and scope of issues in the workplace involving
discrimination, reprisal, and other conflicts and problems, and can help
in developing strategies for dealing with those issues.
Under the No FEAR Act signed into law in May 2002, agencies are required
to accumulate additional information about discrimination cases. The
provisions of this act are to take effect October 1, 2003, and will
require EPA to begin tracking and accumulating data on disciplinary
actions resulting from discrimination. Specifically, the act requires that
federal agencies file annual reports with Congress detailing, among other
things, the number of discrimination or whistleblower cases filed with
them, how the cases are resolved, and the number of agency employees
disciplined for discrimination, retaliation, or harassment. These data
requirements should alert agencies and employees that they are accountable
for their actions in cases involving discrimination, retaliation, or
harassment. This legislation demonstrates Congress*s high level of
interest in discouraging discriminatory conduct and reprisal at federal
agencies and the need for managers to be held accountable for such
conduct.
Conclusions EPA did not have accurate data on the numbers and types of
discrimination complaints made by its employees, and this in turn made
discerning trends in workplace conflicts, understanding the sources of
conflict, and planning corrective actions difficult. These types of data
are useful in helping to measure an agency*s success in adhering to merit
system principles, treating its people fairly and equitably, and achieving
a diverse and
inclusive workforce. Having a data software system that can track cases
and provide EEO managers with the information needed to discern trends to
enable the development of policies is critical. EPA is relying on its
newly procured EEO data system to overcome its data accumulation and
reporting problems. Moreover, the agency is relying on that system to
provide it the capability to track cases and identify trends that may
indicate
problems areas. This, in turn, illustrates the importance of the new
system*s effective operation. EPA has never had standard operating
procedures for EEO complaint
processing and has been using draft procedures prepared in July 2001. The
agency should finalize the draft procedures to help ensure that OCR staff
members know what they are to do and that a uniform process is used
nationwide.
EPA does not have a process to determine whether managers should be
disciplined for their actions in settled EEO complaint cases. If agency
employees have the impression that EPA*s discrimination complaint
process does not discipline managers who participate in discriminatory
conduct, employees may be less willing to participate in the process.
Employees are less likely to file discrimination complaints if they
perceive that there is no benefit from doing so or if they fear reprisal.
A specific process that holds managers accountable for discriminatory
conduct may enhance employee confidence in the EEO environment and
demonstrate the agency*s commitment to providing a fair and discrimination
free environment.
Recommendations for We recommend that the EPA Administrator direct that
OCR evaluate its
Executive Action new EEO software system to ensure it resulted in a
reliable system for
tracking cases and accumulating accountability data for EEOC. In addition,
the Administrator should direct that the draft standard operating
procedures for handling EEO complaints be finalized. The Administrator
should also direct that a process be developed that assesses every case in
which discrimination is found or allegations of discrimination are settled
to determine whether managers, or other employees, should be disciplined.
Agency Comments In a June 11, 2003, letter (see app. I), the Director of
EPA*s Office of Civil Rights commented on a draft of this report. EPA
generally agreed with the report*s findings. EPA said that the report
shows that the agency has made
considerable progress in addressing the backlog of cases involving alleged
discrimination and that it believes it has in place the procedures and
resources to ensure that current and future complaints are timely
processed.
EPA*s comments did not mention our recommendation to evaluate its new EEO
software system to ensure that it meets the agency*s need to track cases
and accumulate accountability data. The comments also did not
address our second recommendation about finalizing standard operating
procedures for handling EEO complaints that have been in draft for 2 years
and would be EPA*s first set of official procedures. As we discussed in
the report, action on both of these recommendations is important to
assuring an effective EEO assurance program at EPA.
Regarding the recommendation to establish a process to assess whether
managers or other employees should be disciplined in cases in which
discrimination is found or allegations are settled, EPA said that it would
develop policies and procedures that will allow it to address effectively
the issue of disciplinary action against any manager or employee found to
have discriminated. This action should, when completed, address the part
of the recommendation related to disciplinary action when discrimination
has been found. However, it does not address the part of the
recommendation dealing with the need to assess whether disciplinary action
should be taken in cases where allegations of discrimination are settled.
As discussed above, a process that holds managers accountable for
discriminatory conduct should enhance employee confidence in the EEO
environment and demonstrate the agency*s commitment to providing a fair
and discrimination free environment.
EPA also made several technical comments, which we incorporated in the
report where appropriate.
As agreed with your offices, unless you publicly announce its contents
earlier, we will make no further distribution of this report until 30 days
after its date. At that time, we will send copies to the Administrator of
EPA, and interested committees and members of Congress. We will also make
copies available to others upon request. In addition, the report will be
made available at no charge on the GAO Web site at http:// www. gao. gov.
If you have questions, please contact me on (202) 512- 6082 or at
rezendesv@ gao. gov or contact Thomas Dowdal, Assistant Director, at (202)
512- 6588 or dowdalt@ gao. gov. Jeffery Bass, Karin Fangman, and Anthony
Lofaro made key contributions to this report.
Victor S. Rezendes Managing Director Strategic Issues
Appendi xes Comments from the Environmental
Appendi I x Protection Agency (450085)
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Report to Congressional Requesters
June 2003 ENVIRONMENTAL PROTECTION AGENCY
Continued Improvement Needed in Assessing Equal Employment Opportunity
GAO- 03- 462
a
GAO United States General Accounting Office
EPA had difficulty providing accurate EEO data because of a data system
that the agency believes was unreliable and was further compromised by
data entry problems. When GAO identified problems with the information
EPA provided, the agency manually reconstructed data for fiscal years 1995
through 2002. The reconstructed data indicate that during this period 548
EPA employees filed 679 discrimination complaints, and the agency closed
588 complaints. Complaints were closed with 125 dismissals, 48
withdrawals, 178 settlements, 5 remands, and 222 agency decisions not
supporting the claimant. GAO cannot attest to the accuracy of these
numbers but believes they are indicative of the situation at EPA. EPA
recently procured new software to facilitate accurate tracking and
reporting of EEO information and believes the software will rectify data
problems. EPA has never had official standard operating procedures for
complaint
processing, which are required by regulation. Rather, EPA said that
complaints were processed under general guidance provided by the Equal
Employment Opportunity Commission (EEOC) until draft procedures, prepared
in July 2001, were put into use.
EPA has taken a long time to process discrimination complaints with cases
averaging 650 days from filing to closing over fiscal years 1995- 2002. A
major contributing factor was that investigations, which are supposed to
be done in 180 days, averaged a total of 465 days. The firms used by EPA
failed to conduct thorough investigations and their reports did not
provide complete or factual accounts of the incidents leading to the
complaints. As a result, investigations often had to be redone, adding to
the amount of time needed to complete them. Over the last year, EPA has
discontinued the use of these firms and contracted with new ones that it
believes are doing a much better job. EPA has also increased its own
staffing for EEO matters to try to reduce processing times.
EPA does not have a specific process for determining whether managers
involved in discrimination complaints did in fact discriminate and if so
whether managers should be disciplined. EPA officials told us that they
have relied on training to rectify and prevent discriminatory conduct.
Other agencies have formal processes to evaluate each case in which
discrimination is found or a complaint is settled to determine whether
discipline is warranted. EPA will be required to collect and report the
number of agency employees disciplined for discrimination or harassment
under the provisions of the Notification and Federal Employee
AntiDiscrimination and Retaliation Act, effective in October 2003. A
process like those in place at other agencies should also help EPA meet
this requirement. Minority employees at the EPA reported for a number of
years that the agency had discriminated
against them based on their race and retaliated against them for filing
complaints. These issues were aired at hearings held by the
House Committee on Science at which EPA said it would take actions to
ensure a fair and discrimination free workplace. GAO was asked to review
(1) the
accuracy of EPA*s EEO data, (2) various issues about the processes used to
resolve discrimination complaints, and (3) the disciplinary actions taken
for managers who discriminate. GAO recommends that EPA evaluate its new
EEO software system to ensure it results in a
reliable system for tracking cases and accumulating accountability data,
finalize standard operating
procedures for EEO complaint processing, and develop a process to assess
all cases in which discrimination
is found or allegations of discrimination are settled to determine whether
managers,
or other employees, should be disciplined.
In commenting on the report, EPA said it would develop policies for
disciplining managers found to discriminate but did not comment on the
other recommendations. ENVIRONMENTAL PROTECTION AGENCY
Continued Improvement Needed in Assessing Equal Employment Opportunity
www. gao. gov/ cgi- bin/ getrpt? GAO- 03- 462. To view the full report,
including the scope and methodology, click on the link above. For more
information, contact Victor S. Rezendes at (202)- 512- 6806 or rezendesv@
gao. gov. Highlights of GAO- 03- 462, a report to
congressional requesters
June 2003
Page i GAO- 03- 462 Assessing Equal Employment Opportunity
Contents
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Appendix I
United States General Accounting Office Washington, D. C. 20548- 0001
Official Business Penalty for Private Use $300 Address Service Requested
Presorted Standard Postage & Fees Paid
GAO Permit No. GI00
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