Discrimination Complaints: Monetary Awards in Federal EEO Cases (Fact
Sheet, 01/03/95, GAO/GGD-95-28FS).
Although exact payment figures are not readily available, GAO found that
federal agencies and the Judgment Fund paid at least $87.4 million to
federal workers and their attorneys since fiscal year 1989 as a result
of federal equal employment opportunity cases. Of that about, $30.6
million was paid in fiscal years 1993 and 1994. Much of the $87.4
million was back pay to federal employees. However, at least $30.5
million was for attorney fees and costs. Of that amount, about $8.7
million was paid in fiscal years 1993 and 1994.
--------------------------- Indexing Terms -----------------------------
REPORTNUM: GGD-95-28FS
TITLE: Discrimination Complaints: Monetary Awards in Federal EEO
Cases
DATE: 01/03/95
SUBJECT: Employment discrimination
Backpay
Legal fees
Federal employees
Restitution
Administrative costs
Claims settlement
Special fund appropriation accounts
Payments
Administrative remedies
IDENTIFIER: Judgment Fund
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Cover
================================================================ COVER
Fact Sheet for the Chairman, Committee on Governmental Affairs, U.S.
Senate
January 1995
DISCRIMINATION COMPLAINTS -
MONETARY AWARDS IN FEDERAL EEO
CASES
GAO/GGD-95-28FS
Monetary Awards in Federal EEO Cases
Abbreviations
=============================================================== ABBREV
EEOC - Equal Employment Opportunity Commission
GAO - General Accounting Office
Letter
=============================================================== LETTER
B-257454.2
January 3, 1995
The Honorable John Glenn
Chairman, Committee on Governmental
Affairs
United States Senate
Dear Mr. Chairman:
In May 1993 correspondence\1 we reported to you the amount of money
paid in fiscal years 1989 to 1992 to federal employees and their
attorneys as a result of employment discrimination complaints.\2 The
payments were made either directly by the agencies through their own
funds or through the Judgment Fund. The Judgment Fund provides a
permanent indefinite appropriation to pay certain settlements and
judgments against the federal government.
On February 24, 1994, you asked us to update the payment information
we provided in May 1993. This fact sheet provides the information
for fiscal years 1989 through 1993 and, where possible, fiscal year
1994.
--------------------
\1 Monetary Payments in Federal EEO Cases (GAO/GGD-93-45R, May 25,
1993). We also issued an earlier report Discrimination Complaints:
Payments to Employees by Federal Agencies and the Judgment Fund
(GAO/HRD-89-141, Sept. 25, 1989).
\2 Although we refer to payment recipients as employees, the payment
amounts reported in this fact sheet may include payments to federal
job applicants as well as employees. Just as employees can,
applicants for federal jobs can file employment discrimination
complaints with agencies that they applied to and sue those agencies
in federal district court. We could not readily determine from the
data we used whether a complainant was an employee or an applicant.
RESULTS IN BRIEF
------------------------------------------------------------ Letter :1
Although exact payment figures were not readily available, at least
$87.4 million was paid by federal agencies and the Judgment Fund to
federal employees and their attorneys since fiscal year 1989 as a
result of federal equal employment opportunity cases.\3 Of that
amount, approximately $30.6 million was paid in fiscal years 1993 and
1994.
Much of the $87.4 million was back pay to federal employees.
However, at least $30.5 million was for attorney fees and costs. Of
that amount, about $8.7 million was paid in fiscal years 1993 and
1994.
--------------------
\3 In addition to payments to employees and their attorneys, the
government also has other discrimination complaint processing costs.
We reported that civilian cabinet departments and certain Department
of Defense agencies estimated that they incurred costs of about $139
million in fiscal year 1991 to counsel complainants and process
complaints. See Federal Workforce: Agencies' Estimated Costs for
Counseling and Processing Discrimination Complaints (GAO/GGD-92-64FS,
Mar. 26, 1992).
BACKGROUND
------------------------------------------------------------ Letter :2
Federal employment discrimination complaints are resolved in various
ways. For example, an agency may provide a complainant with
appropriate training if training is at issue. Another way to resolve
a complaint is to provide the complainant with monetary relief
through back pay, which gives the complainant the salary he or she
would have received had the alleged discrimination not occurred.
Federal employment discrimination complaints are handled through
administrative procedures and the courts. When a federal employment
discrimination complaint is resolved by administrative procedures and
the corrective action includes monetary relief, the money is paid
from the agency's funds. Generally, federal agencies are to follow
regulations set forth at 29 C.F.R. part 1614 to administratively
process and resolve employee discrimination complaints.\4
When a lawsuit is filed, any resulting monetary relief is generally
paid from the Judgment Fund. However, the Judgment Fund does not pay
monetary relief in every case. For example, the legislation that
created the U.S. Postal Service requires it to use its own funds to
pay monetary relief resulting from lawsuits. Therefore, any payments
made by the Postal Service are not included in Judgment Fund data.\5
Generally, a prevailing party in a discrimination case at the
administrative or judicial level, which is commonly defined as a
complainant who obtains at least some relief on the merits of his or
her claim, can receive reasonable attorney fees and costs.\6
The kinds of costs which can be awarded at both the administrative
and judicial levels are those authorized by 28 U.S.C. 1920 and
include recorder fees, expert witness fees, the cost of copying
documents, court filing fees, and the cost of serving court
documents.
--------------------
\4 Part 1614 became effective October 1, 1992. Before that date,
agencies were to follow regulations at 29 C.F.R. part 1613.
\5 However, back pay and attorney fees and costs awarded by the
Postal Service during administrative processing of complaints are
generally included in our agency-paid amounts (see table 1).
\6 However, if the claim is based on an alleged violation of the Age
Discrimination in Employment Act or the Equal Pay Act, a prevailing
party cannot recover attorney fees at the administrative level.
SCOPE AND METHODOLOGY
------------------------------------------------------------ Letter :3
To ascertain the amount of agency-made payments, we used data that
the Equal Employment Opportunity Commission (EEOC) maintains. To
ascertain the amount of Judgment Fund payments, we used data that GAO
maintains. We used these same sources for our May 1993 letter.
Each year, EEOC asks agencies with 100 or more employees to complete
EEOC Form 462 (Annual Federal Equal Employment Opportunity
Statistical Report of Discrimination Complaints). Among other items,
agencies are to report the amount of back pay awarded and the amount
of attorney fees and costs awarded. Agencies are to submit the
completed form to EEOC, and EEOC publishes the information in its
annual Federal Sector Report on EEO Complaints and Appeals. The most
current published report covers fiscal year 1992.
For this fact sheet, we used EEOC's published totals for back pay and
attorney fees and costs. When these were not published--as was the
case for fiscal year 1993--we used the agency-completed forms to
compute the total. Fiscal year 1993 was the latest year for which
all agencies had submitted data.
We did not verify the data the agencies submitted to EEOC. Although
EEOC contacts agencies about data that appear questionable, such as
conflicting numbers or items not adding to totals, it relies on the
agencies to provide complete and accurate information.
GAO must certify that the Judgment Fund is the correct appropriation
before the Department of the Treasury can make payments from this
Fund.\7 Treasury notifies GAO after it makes payment, and GAO then
includes the payment information in its records.
We extracted from GAO Judgment Fund records data on payments in
discrimination cases for fiscal years 1989 through 1994. Fiscal year
1994 data include most but not all payments made that year. Treasury
notification was pending on some payments that GAO certified, and
information on other payments required posting to GAO's records.
Fiscal year 1994 data include all postings through the middle of
October 1994.
The Judgment Fund file contains different categories of
discrimination cases, and each category has its own identifying code.
One of the categories is "government employee;" we attempted to
extract data on only these cases. However, for fiscal year 1989 and
perhaps part of fiscal year 1990, the categories were not used, and
all discrimination cases were identified by the same code.\8 As a
result, the payments made in fiscal year 1989, and perhaps 1990, may
include payments made to persons and organizations other than federal
employees and their attorneys. However, as explained in our May 1993
letter, if our data include these other payments, the amounts may be
relatively small.\9
This fact sheet focuses on discrimination complaints filed by and
payments made to federal civilian employees. However, Judgment Fund
data can include payments to military personnel and/or their
attorneys. Military personnel, like civilian employees, can sue the
Department of Defense in federal district court. For any resulting
payment, Judgment Fund records do not distinguish between civilian
and military personnel.\10
Our general policy is to present dollar amounts over several years in
their present value. However, the amounts in this fact sheet are in
"actual" dollars. We did not present the amounts in present value
because you requested information about actual expenditures, and we
made no comparisons among the fiscal years for which we provided
data.
We generally made no attempt to determine the age of the cases that
generated the payments. However, given the length of time it often
takes to resolve discrimination cases, it is likely that for many
cases the incident that caused the discrimination complaint occurred
sometime before the year in which payment was made.
Our work was done in Washington, D.C., between March and October 1994
in accordance with generally accepted government auditing standards.
--------------------
\7 The Department of the Treasury, the Department of Justice, and GAO
share responsibility for administration of the Judgment Fund.
\8 The new codes were implemented in fiscal year 1990, but exactly
when is uncertain.
\9 Our May 1993 letter noted that nonfederal employee cases accounted
for about 9 percent ($541,000) of all discrimination payments in
fiscal year 1991 and about 3 percent ($265,000) of all payments in
fiscal year 1992.
\10 The section in this fact sheet on payments made by federal
agencies should not include payments to military personnel. EEOC
Form 462 does not request data about complaints filed by and payments
made to military personnel. EEOC's complaint processing
responsibilities cover civilian but not military personnel.
PAYMENTS FEDERAL AGENCIES MADE
------------------------------------------------------------ Letter :4
As table 1 shows, agencies reported awarding at least $47.6 million
in back pay and attorney fees and costs during fiscal years 1989
through 1993. Attorney fees and costs are combined and reported as a
single amount on EEOC Form 462 and are reported as a single amount
here.
Table 1
Monetary Awards Paid by Federal Agencies
in Discrimination Complaint Cases,
Fiscal Years 1989 Through 1993
(Dollars in millions)
Attorney
fees
Fiscal year pay and costs
---------------------- ---------------------- ------------
1989 $4.3\a $2.9
1990 8.0 2.5
1991 4.4 3.3
1992 5.9 2.1
1993\b 10.8\ 3.4
============================================================
Total $33.4 $14.2
------------------------------------------------------------
Note 1: Dollar values are rounded.
Note 2: Our May 25, 1993, letter reported payments from fiscal years
1989 through 1991.
\a We computed this amount. EEOC did not publish a back pay amount
for fiscal year 1989 because one or more large agencies that could
significantly affect the governmentwide total did not report back
pay. We computed the amount using back pay awards that were reported
on EEOC Form 462 and from readily available information at EEOC on
agency adjustments to reported figures. The amount is about $1
million more than the amount for fiscal year 1989 that we reported in
our May 1993 letter. This increase resulted mostly from adjustments
we made based on the identification of additional information.
\b We computed the 1993 amounts from payment data agencies reported
to EEOC. The amounts are subject to change; agencies can amend the
data they report to EEOC up to the time EEOC publishes the data.
Source: Unless otherwise noted, the source for amounts awarded was
EEOC's fiscal year 1992 Federal Sector Report on EEO Complaints and
Appeals.
In a November 1992 decision, EEOC concluded that the Civil Rights Act
of 1991 makes compensatory damages available to federal complainants
during the administrative processing of their complaints. Such
damages would be in addition to any awards of back pay and attorney
fees and costs. EEOC Form 462 does not request data on compensatory
damages; EEOC is considering whether to amend the form to collect
these data.
JUDGMENT FUND PAYMENTS
------------------------------------------------------------ Letter :5
As table 2 shows, approximately $39.8 million was paid from the
Judgment Fund over the 1989-1994 fiscal year period for employment
discrimination complaint cases involving federal agencies. This
amount includes back pay and attorney fees. Attorney fees may or may
not be specifically identified in the payment, depending on the
wording of the settlement or judgment. About $16.3 million of the
$39.8 million was specifically identified as attorney fees.
Table 2
Judgment Fund Payments for
Discrimination Complaint Cases From
Federal Agencies, Fiscal Years 1989
through 1994
(Dollars in millions)
Payments for
attorney Total
Fiscal year fees payments
---------------------------------- ------------ ----------
1989 $1.8 $3.1
1990 3.3 6.2
1991 1.9 5.7
1992 4.0 8.4
1993 1.7 6.0
1994 3.6 10.4
============================================================
Total $16.3 $39.8
------------------------------------------------------------
Note 1: Dollar values are rounded. As explained in the scope and
methodology section, the amounts for fiscal year 1994 include most
but not all fiscal year 1994 payments.
Note 2: Our May 25, 1993, letter reported Judgment Fund payments
from fiscal years 1989 through 1992.
Source: GAO Judgment Fund data.
Two amounts in table 2 for fiscal years 1989 and 1990 are slightly
smaller than the amounts reported in our 1993 letter. These slight
decreases were caused by two exclusions. We excluded from table 2
the amounts for several cases found not to involve federal employees.
These amounts totaled about $115,000 over the 1989-1994 period.
We excluded about $192,000 from the attorney fees column but not from
the total payments column. This amount, which was paid over the
1989-1994 period, represents reimbursements for court costs paid
under 28 U.S.C. 1920. Attorneys are usually the ultimate recipients
of these reimbursements. The amount of court costs and the amount of
attorney fees are not always separately identified in the Judgment
Fund awards.
---------------------------------------------------------- Letter :5.1
We are sending copies of this fact sheet to the Ranking Minority
Member, Senate Committee on Governmental Affairs; the Chairman and
Ranking Minority Member, House Post Office and Civil Service
Committee; the Chairman and Ranking Minority Member, House
Subcommittee on the Civil Service; and the Chairman, EEOC. Copies
will also be made available to others on request.
The information for this fact sheet was developed by Steve Wozny,
Assistant Director; Anthony Assia, Evaluator-in-Charge; and Theresa
Davis, Secretary. Please contact me on (202) 512-5074 if you have
any questions concerning this fact sheet.
Sincerely yours,
Nancy Kingsbury
Director
Federal Human Resource Management
Issues