EEOC's Expanding Workload: Increases in Age Discrimination and Other
Charges Call for New Approach (Letter Report, 02/09/94, GAO/HEHS-94-32).
The amount of time a person may have to wait for the Equal Employment
Opportunity Commission (EEOC) to process a discrimination charge under
the nondiscrimination laws could more than double and approach 21 months
by fiscal year 1996. The current trend of a steadily increasing
workload without commensurate increases in resources is expected to
continue. Former and current EEOC officials and civil rights experts
have suggested several options that they believe could improve the
federal government's ability to enforce employment nondiscrimination
laws. The one mentioned most often is increased use of alternative
dispute resolution approaches, such as mediation. GAO recommends that
Congress convene a panel of experts to review this and other options for
improvement. Because resources are scarce, EEOC officials doubt that
EEOC will initiative substantially more systemic charges or litigate
significantly under the nondiscrimination laws.
--------------------------- Indexing Terms -----------------------------
REPORTNUM: HEHS-94-32
TITLE: EEOC's Expanding Workload: Increases in Age Discrimination
and Other Charges Call for New Approach
DATE: 02/09/94
SUBJECT: Fair employment programs
Employment discrimination
Full employment policies
Investigations by federal agencies
Labor statistics
Civil rights law enforcement
Information processing operations
Agency missions
Human resources utilization
Litigation
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Cover
================================================================ COVER
Report to the Chairman, Special Committee on Aging, U.S. Senate
February 1994
EEOC'S EXPANDING WORKLOAD -
INCREASES IN AGE DISCRIMINATION
AND OTHER CHARGES CALL FOR NEW
APPROACH
GAO/HEHS-94-32
EEOC'S Expanding Workload
Abbreviations
=============================================================== ABBREV
ADA - Americans with Disabilities Act
ADEA - Age Discrimination in Employment Act of 1967
ADR - alternative dispute resolution
EEOC - Equal Employment Opportunity Commission
EPA - Equal Pay Act of 1963
FEPA - Fair Employment Practice Agency
OFCCP - Office of Federal Contract Compliance Programs
Letter
=============================================================== LETTER
B-252101
February 9, 1994
The Honorable David H. Pryor
Chairman, Special Committee on Aging
United States Senate
Dear Mr. Chairman:
The mission of the Equal Employment Opportunity Commission (EEOC) is
"to ensure equality of opportunity by vigorously enforcing federal
legislation prohibiting discrimination in employment...."\1 This
report responds to your request that we review how EEOC investigates
discrimination charges under both the Age Discrimination in
Employment Act of 1967 (ADEA) and other federal nondiscrimination
laws. You specifically asked about EEOC's ability to meet the
demands of its workload, plans for investigations of systemic
discrimination,\2 and plans for litigation. You also asked that we
identify options that might allow EEOC to better use its resources so
that its investigation efforts will result in greater impact for more
charging parties.
To respond to your request, we reviewed the laws, regulations,
policies, and procedures that pertain to EEOC's responsibilities. We
also reviewed EEOC-related reports from individuals, government
agencies, and private-sector organizations with expertise in civil
rights issues. In addition, we interviewed current EEOC
commissioners and three former EEOC chairpersons, EEOC headquarters
and field staff, Fair Employment Practice Agency (FEPA) staff,\3
lawyers for charging parties (people who file discrimination charges)
and for respondents (the employers charged), and representatives of
interest groups. The options for improvement in appendix I came from
these reports and interviews. As agreed to by your staff, we used
existing EEOC data without verifying them. We did our work between
January and September 1993, in accordance with generally accepted
government auditing standards.
--------------------
\1 EEOC's mission statement, as quoted on the first page of the
Commission's Office of Program Operations annual report for fiscal
year 1992, reads: "To ensure equality of opportunity by vigorously
enforcing federal legislation prohibiting discrimination in
employment through investigation, conciliation, litigation,
coordination, regulation in the federal sector, and through
education, policy research, and provision of technical assistance."
\2 EEOC investigates workplace patterns and practices that
discriminate--or could discriminate--against a class of employees or
applicants for employment. These investigations are done pursuant to
charges, which are called "class actions" when private parties
originate them and "systemic charges" when brought by EEOC. Systemic
charges under the Americans With Disabilities Act (ADA) and title VII
of the Civil Rights Act of 1964 (title VII) require (1) a signed
request by a commissioner and (2) notification of the employer that
an investigation will be started and the basis for that
investigation. Under ADEA, such "commissioner" charges may also be
undertaken, but field offices also may initiate "directed" charges,
which require neither a basis for the investigation, a request by a
commissioner, nor even advance notification to the employer that an
investigation will be initiated.
\3 FEPAs are state and local agencies that investigate charges of
employment discrimination. In general, a person may file
discrimination charges with either EEOC or a FEPA.
RESULTS IN BRIEF
------------------------------------------------------------ Letter :1
The amount of time a person may wait to have EEOC process a
discrimination charge under ADEA and the other nondiscrimination laws
could more than double and approach 21 months by fiscal year 1996.\4
The current trend of a steadily increasing workload without
commensurate increases in resources is expected to continue. As a
result, unless substantial changes occur in EEOC's responsibilities,
policies, and/or practices, it is likely that processing times will
increase.
Former and current EEOC officials and civil rights experts have
suggested several options that they believe could improve the federal
government's ability to enforce employment nondiscrimination laws.
The one mentioned most often is increased use of alternative dispute
resolution (ADR) approaches, such as mediation. ADR approaches,
which have considerable support across the federal government, may
forego the usual attempts to develop evidence suitable for litigation
in favor of achieving agreement through less formal, and perhaps less
adversarial, processes. (See app. I.) We believe that the Congress
should establish a commission of experts to consider this and other
options for improvement.
EEOC officials do not believe EEOC will initiate substantially more
systemic charges or litigate significantly more charges under ADEA
and other nondiscrimination laws because resources are limited.
Systemic charges are labor intensive; and, under EEOC's current
guidelines for investigating these charges, fewer situations qualify.
EEOC officials say that the litigation rate is low (about 1 percent
of all charges received for processing) because (1) laws and EEOC
policy favor other means of resolving discrimination charges, such as
conciliation,\5 and (2) EEOC does not have sufficient legal staff to
substantially increase the number of charges it can litigate
effectively.
--------------------
\4 In general, charges brought under the ADEA are treated like
charges brought under other federal employment nondiscrimination
statutes. Until November 1991, when the Civil Rights Act of 1991 was
enacted, ADEA charges were a priority for investigation because
charging parties generally had only 2 years from when the alleged
discrimination occurred to take their cases to court. The 1991 act
removed this time limit, and EEOC no longer treats age cases as a
priority.
\5 Conciliation consists of EEOC's working with both parties to
obtain a written agreement on actions that will be taken to correct
the problem and provide appropriate compensation for the charging
party. Compensation may include reinstatement to the job that the
charging party would have had without discrimination, back pay,
restoration of lost benefits, or payment to compensate for actual
monetary loss. When the agreement requires future actions by the
employer, EEOC follows up to verify compliance.
BACKGROUND
------------------------------------------------------------ Letter :2
EEOC is one of several federal agencies responsible for enforcing
equal employment opportunity laws and regulations. Other agencies
include (1) the Department of Justice, which is authorized, only
after EEOC has processed a case and failed in conciliation efforts,
to file suit in federal district court against state and local
government employers charged with discrimination under title VII of
the Civil Rights Act of 1964 (title VII) or the Americans with
Disabilities Act (ADA); (2) the Department of Labor's Office of
Federal Contract Compliance Programs (OFCCP), which enforces laws
against discrimination by federal government contractors and
subcontractors; and (3) the Department of Education's Office for
Civil Rights, which enforces laws against discrimination in
educational institutions.
By law, the EEOC consists of five members. The President appoints
them, with the consent of the Senate, for rotating 5-year terms. No
more than three members can be in the same political party. The
President designates one member to serve as chairman and another as
vice-chairman. As of February 1994, EEOC lacked one commissioner and
the President had not appointed a chairman or vice-chairman.
Under title VII, EEOC investigates--and may litigate, on its own or
on behalf of another charging party--charges of employment
discrimination because of race, color, religion, sex, or national
origin. EEOC has similar responsibility under ADEA, which prohibits
employment discrimination against workers aged 40 and older; under
the Equal Pay Act of 1963 (EPA), which prohibits payment of different
wages to men and women doing the same work; and under ADA, which
prohibits employment discrimination against workers with physical or
mental disabilities. Charging parties can, in one charge, allege
discrimination under more than one statute, for example, ADEA and
title VII.
About 90 percent of EEOC's annual budget is used for enforcement,
mainly in the private sector.\6 EEOC carries out its mission through
50 field offices. Its investigators are generalists, who are
expected to work on charges pertaining to any of the laws that EEOC
enforces. All of the nondiscrimination laws, except ADEA, require
that each charge be fully investigated. By policy, EEOC requires
that ADEA charges be fully investigated. At a minimum, the full
investigation process includes obtaining pertinent evidence,
interviewing relevant witnesses, and verifying the accuracy and
completeness of the evidence obtained.
Most states and many localities have laws that generally parallel the
federal nondiscrimination laws. In the 46 states and 36 localities
that have established FEPAs to investigate charges of employment
discrimination, individuals generally may file charges with either
EEOC or the FEPAs.\7 Under contractual agreements, EEOC shares
investigative responsibility with the FEPAs by reimbursing them $450
for each charge they resolve. By reviewing sample cases, EEOC
monitors FEPA investigations to ensure that they meet EEOC standards.
However, in the past, both EEOC and the FEPAs have been criticized
for not meeting these standards. For example, in our 1988 report,\8
we noted that several EEOC and FEPA cases had been closed because of
faulty investigations. Deficiencies included failure to verify
information, obtain pertinent evidence, and interview relevant
witnesses.
From fiscal year 1989 to fiscal year 1994, EEOC's appropriations
increased from $180.7 million to $230 million, or about 27 percent.
However, in real dollars, the amount increased only about 6 percent.
--------------------
\6 In 1978, Executive Order 12067 gave EEOC the responsibility to
provide leadership for, and coordination among, the other federal
agencies that enforce equal employment opportunity laws.
\7 This total includes the District of Columbia, Puerto Rico, and the
Virgin Islands.
\8 Equal Employment Opportunity: EEOC and State Agencies Did Not
Fully Investigate Employment Discrimination Charges (GAO/HRD-89-11,
Oct. 11, 1988).
EEOC'S PROCESS FOR
INVESTIGATING AND LITIGATING
CASES
---------------------------------------------------------- Letter :2.1
Individuals who believe they have been discriminated against--when
applying for a job or while employed--by a private employer, labor
union, or employment agency may file a charge, at no cost, with
EEOC.\9 EEOC's procedures for processing charges are shown in figure
1.
Figure 1: EEOC Procedures in
Private Sector Cases
(See figure in printed
edition.)
\a In jurisdictions with state or local laws prohibiting employment
discrimination, this period will be 300 days.
Source: This figure is based
on an EEOC chart that describes
the procedures for processing
charges brought under title VII
of the Civil Rights Act of
1964. These procedures
generally apply to the
processing of charges brought
under the statutes for which
EEOC has responsibility.
(See figure in printed
edition.)
Once a charge is filed, EEOC interviews the charging party. EEOC
closes the case for administrative reasons if (1) the charge fails to
meet legal requirements--for example, not being filed within the time
required by the applicable statute of limitations or (2) the charging
party decides not to wait for the results of EEOC's investigation and
requests a right-to-sue letter so that he or she can take the case to
court. According to EEOC officials, such a document is required by
the court and ensures that an attempt has been made to resolve the
dispute before litigation.
If the allegation meets EEOC's standard for minimally sufficient,
EEOC accepts the charge. EEOC then notifies the employer of the
charge and requests information from the employer and any witnesses
who have direct knowledge of the situation that led to the
discrimination charge. If the evidence does not show reasonable
cause to believe discrimination occurred, EEOC dismisses the case
after issuing a "no cause" finding and a right-to-sue letter that
says that (1) EEOC is not going to sue and (2) a statute of
limitations exists that dictates the deadline for the charging
parties to file suit.\10
When the evidence shows that reasonable cause exists to believe
discrimination occurred, EEOC generally attempts conciliation.\11 If
conciliation attempts fail, EEOC may go to court. EEOC lacked the
authority to litigate charges from its inception in 1964 until the
Equal Employment Opportunity Act of 1972; this act gave EEOC
authority to initiate its own title VII lawsuits and to intervene as
a party in title VII lawsuits filed by others.\12 In 1984, EEOC
adopted a policy requiring that whenever conciliation efforts failed,
the charge be submitted to the commissioners for a decision on
whether to pursue litigation. If EEOC decides not to litigate, EEOC
issues a right-to-sue letter to the charging party.
--------------------
\9 Most federal employees must file their employment discrimination
complaints with the Equal Employment Office in their own agencies.
If dissatisfied with a decision, an employee may file an appeal with
EEOC or file a civil action in federal court. EEOC also investigates
discrimination charges filed by state and local government employees.
\10 EEOC asks parties who receive right-to-sue letters to notify EEOC
if they do in fact go to court. But compliance is not mandatory and,
therefore, EEOC does not have reliable information on suits that
charging parties filed on their own behalf or on the results of those
suits.
\11 Under the ADEA, generally, conciliation must be attempted before
EEOC seeks to determine the validity of the charge; however,
conciliation may also be tried after this determination is made.
\12 The Department of Justice, not EEOC, has litigation authority,
under title VII and ADA, on charges against state or local
governments. Referral to the Department of Justice is not required
for litigation against state or local governments under the ADEA.
AVERAGE TIME TO PROCESS CHARGES
EXPECTED TO INCREASE
------------------------------------------------------------ Letter :3
According to EEOC estimates, by fiscal year 1996, a charging party
may face an average processing time in excess of 20 months--more than
double the processing time that charging parties encountered in
fiscal year 1993 (see fig. 2).
Figure 2: Average Time to
Process Charges Expected to
Increase
(See figure in printed
edition.)
Note: With the removal of the
2-year statute of limitations
for taking ADEA cases to court,
EEOC officials expect ADEA
charge processing generally to
take the same amount of time as
other charges. ADEA charges
include charges filed
concurrently under ADEA and any
of the other statutes EEOC
enforces.
(See figure in printed
edition.)
Source: EEOC.
(See figure in printed
edition.)
Long processing times could not only delay the outcomes of charges,
but could also affect the nature of the outcomes. The longer it
takes to investigate a charge, the greater potential for difficulty
in (1) locating witnesses, (2) obtaining from witnesses credible
accounts of the actions alleged to be discriminatory, and (3)
securing settlements--because the larger liability involved after a
long time could make some employers less willing to settle.
EEOC measures average processing times from the date a charge is
filed to the date EEOC completes the administrative process--that is,
reaches any resolution other than a decision to litigate. In the
private sector, EEOC's average time for completing a review of an
ADEA charge increased from 286 days in fiscal year 1992 to 307 days
in fiscal year 1993. The average time for all charges decreased from
298 days to 294 days. There was little change in processing times
even though the average number of completed cases per investigator
increased from 92.8 resolutions in fiscal year 1992 to 97.1 in fiscal
year 1993 for all charges. (EEOC does not compile this information
for ADEA charges.) According to EEOC officials, investigators are
working at their maximum, and therefore no further increase in
average resolutions per investigator is expected.
Average times to process charges will increase, EEOC officials
estimate,\13 because the numbers of unresolved charges carried
forward from 1 year to the next are increasing. These unresolved
charges are a result of the increasing numbers of new charges EEOC
receives for processing each year without any increases in annual
staff levels or charge resolutions per investigator. The increasing
charges affect the time a person can expect to wait because generally
EEOC tries--except for charges that need immediate attention, such as
sexual harassment and retaliation--to process charges in the order
they are filed. Thus, investigators normally would give priority to
cases remaining from previous fiscal years.
This means that although EEOC will receive a charge--and notify the
employer and ask for information--the new charge will be processed
after previously filed charges unless extenuating circumstances would
justify this charge's preceding previously filed charges.
Ultimately, EEOC officials predict, for the majority of cases
received in a fiscal year for processing, EEOC will conduct intake
interviews of complainants, and initial queries will be made to and
responses received from employers; then, generally, the cases will be
put in order behind all those that remain from previous years.
--------------------
\13 EEOC's present estimates are a straight-line projection, based on
actual fiscal year 1993 numbers. EEOC officials believe, on the
basis of a comparison of actual current processing times with
projections made in the past, that the estimates are somewhat
conservative.
EEOC'S WORKLOAD HAS INCREASED
------------------------------------------------------------ Letter :4
From 1989 to 1992, the number of ADEA charges that EEOC received for
processing\14 increased about 25 percent; the number of charges
received for processing under the other nondiscrimination laws
increased about 26 percent. During this same period, EEOC's staff
decreased 6 percent. For fiscal year 1993, the number of all charges
received for processing, including those under ADEA, increased
another 25 percent over fiscal year 1992, with a staff increase of
less than 2 percent. EEOC said the increase in total workload
occurred primarily because of increases in sexual harassment charges
(see fig. 3).
Figure 3: Charges EEOC
Receives for Processing
Increasing
(See figure in printed
edition.)
Note: These annual totals
include charges filed
concurrently under ADEA and any
of the other statutes EEOC
enforces.
(See figure in printed
edition.)
Source: EEOC.
(See figure in printed
edition.)
--------------------
\14 EEOC distinguishes between charges received and charges received
for processing. The former includes some charges that FEPAs end up
processing; charges for processing means those charges that EEOC
actually processes.
THE NUMBER OF UNRESOLVED
CHARGES CARRIED FORWARD IS
INCREASING
------------------------------------------------------------ Letter :5
The number of unresolved charges carried forward from fiscal year
1993 to fiscal year 1994 totaled 73,124, a 38 percent increase over
the 52,856 charges carried forward into fiscal year 1993. The 15,767
ADEA charges carried forward to fiscal year 1994 represented an
increase of about 9 percent over the 14,366 ADEA charges carried
forward to fiscal year 1993. However, as shown in figure 4,
beginning in fiscal year 1995, EEOC expects that the number of ADEA
charges carried forward will increase significantly.
Figure 4: Charges Carried
Forward Are Increasing
(See figure in printed
edition.)
Note: ADEA charges include
charges filed concurrently
under ADEA and any of the other
statutes EEOC enforces.
(See figure in printed
edition.)
Source: EEOC.
(See figure in printed
edition.)
SUGGESTED OPTIONS FOR IMPROVING
THE FEDERAL GOVERNMENT'S
ABILITY TO ENFORCE EMPLOYMENT
NONDISCRIMINATION LAWS
------------------------------------------------------------ Letter :6
Former EEOC chairpersons, as well as present commissioners, staff,
and others familiar with civil rights issues have suggested several
options for improving the government's ability to respond to
allegations of employment discrimination. These options--some of
which would require the Congress to amend laws--are summarized below
and discussed in more detail in appendix I:
One option is the use of ADR, including various forms of mediation
and total removal of disputes from the court system.\15 (See
page 2.)
Another option--that EEOC is piloting in two field offices--seeks
to improve screening of new charges so that not all have to be
fully investigated; thus, resources will become available for
other uses, such as investigating more systemic charges.
Other options include improving investigation by (1) making
investigators more capable; (2) encouraging investigators to put
more effort into systemic investigations; and (3) in a variety
of ways, restructuring federal enforcement of equal employment
opportunity laws.
--------------------
\15 Mediation provides for a neutral third party to assist in
negotiating agreements; the mediator does not render a decision;
rather, resolutions are by agreement of the disputants.
SUBSTANTIAL INCREASES IN
SYSTEMIC CHARGES UNLIKELY
------------------------------------------------------------ Letter :7
EEOC officials said that, primarily because of resource constraints,
it is unlikely that the number of systemic charges will increase
substantially. In fiscal year 1989, the special EEOC units that
process systemic charges began investigations of 17 systemic charges;
in 1990, 36; in 1991, 35; in 1992, 50; and in 1993, 77. During this
period, under ADEA, the number of systemic investigations initiated
were 4, 2, 4, 1, and 3, respectively.
According to EEOC officials, under ADEA, EEOC may initiate directed
charges of discrimination against groups or classes of people without
going through the formalities associated with systemic charges.
These charges (192 were initiated in fiscal year 1992 and 243 in
fiscal year 1993) resemble systemic charges but often are narrower in
scope. For instance, a directed charge might focus on just the
downsizing policies that a company used during a layoff, rather than
all employment patterns and practices that might be addressed in a
systemic charge.
Although the recent trend has shown an increase in systemic charges,
the total number remains relatively small; outside parties and EEOC
officials agree that it would be appropriate for EEOC to do more. In
spite of this, EEOC officials do not believe that the number of
systemic charges will increase substantially because (1) limited
resources prevent EEOC from assigning more investigators to systemic
investigations--which also require a full investigation and can be
labor intensive--because that would result in fewer investigators for
the individual cases that EEOC is required by law to investigate and
(2) fewer opportunities exist because of EEOC guidance that the
targets of systemic charges generally have at least 500 employees and
that discrimination be indicated by anecdotal as well as statistical
evidence. However, they do expect to file more systemic charges
under ADEA because the 2-year statute of limitations with respect to
litigation has been eliminated, allowing more time for
investigations.
Although the 500 number reflects EEOC's interest in using limited
resources to get the greatest effect, EEOC officials said it is
simply a guideline. When a legal issue has arisen or EEOC's presence
in a certain region was needed, systemic charges have been lodged
against companies with fewer than 500 employees. In commenting on a
draft of this report in November 1993, EEOC provided information on
80 open systemic charges to show that 37 charges involved employers
with more than 500 employees, 15 charges involved employers with
between 251 and 500 employees, and 16 charges involved employers with
250 or fewer employees. The remaining 12 charges were brought
against employment agencies. EEOC also stated that it believed that
anecdotal evidence serves to improve the quality of systemic charges
brought, rather than limit the number of possible filings.
SIGNIFICANT INCREASES IN THE
NUMBER OF CHARGES LITIGATED
ALSO UNLIKELY
------------------------------------------------------------ Letter :8
Similarly, EEOC officials said that the number of charges litigated
probably will not increase significantly. The number of ADEA charges
that EEOC litigates annually is equal to about 1 percent of the ADEA
charges it receives for processing; the percentage of all charges
that EEOC receives for processing that are litigated is about the
same (see table 1).
Table 1
Suits Filed Expressed as a Percentage of
Charges Received for Processing
Charges Number of Percentage
received suits of
Fiscal year for processing filed suits filed
------------------ -------------- ---------- ------------
1989 55,952 598 1.07
1990 59,426 643 1.08
1991 62,806 593 .94
1992 70,399 447 .63
1993 87,942 471 .54
------------------------------------------------------------
Law and EEOC policy favor the use of litigation only after attempts
at conciliation have failed. In addition, EEOC officials say that
the Commission lacks sufficient legal staff (headquarters and field)
to significantly increase the number of cases it can litigate
effectively. From fiscal year 1988 to the end of fiscal year 1992,
EEOC's legal staff decreased from 514 to 386. EEOC officials do not
believe the legal staff will increase.
In commenting on a draft of this report, EEOC reiterated that the low
rate of litigation cases is a function of many variables, including
statutory policies requiring that EEOC attempt conciliation before
litigation. EEOC also commented that legal staff shortages have not
directly resulted in the filing of fewer litigation cases, but have
limited its ability to prosecute aggressively and manage effectively
a substantial increase in litigation cases.
CONCLUSION
------------------------------------------------------------ Letter :9
The extensive processing times--expected to average more than 20
months by fiscal year 1996--that charging parties can expect to face
in EEOC appear incompatible with the mission of the Commission "to
ensure equality of opportunity by vigorously enforcing federal
legislation prohibiting discrimination in employment...."
Processing--and thus waiting--times will not decrease without
substantial changes in Commission responsibilities, policies,
practices, or resources. Officials and experts whom we interviewed
both from within and outside of EEOC agreed: change is necessary.
Options for change in responsibilities, policies, and practices
within the framework of vigorously enforcing federal
nondiscrimination legislation involve complex and sensitive issues.
During our review, we found many opinions but no real consensus on
what EEOC should do to improve its operations. The option mentioned
most often was ADR. In addition, proposals for substantial resource
increases conflict with present efforts to achieve efficiencies in
public service and decrease, rather than expand, federal agency
personnel.
Although increased processing times to investigate charges hinder
EEOC's ability to perform its mission, efforts aimed solely at
reducing these times would not, for some experts and advocates from
the civil rights community, represent a satisfactory response. While
some favor options to facilitate continuation of the present
corrective actions approach, which uses most of EEOC's annual budget
to investigate and litigate individual complaints, others prefer a
proactive, preventive approach, which would devote greater resources
to systemic cases and to education and training. Still others have
offered options to remove the processing of discrimination charges
from the courts altogether. Finally, some say that in the 30 years
since enactment of the Civil Rights Act of 1964, the entire federal
response to employment rights enforcement has become disjointed and
uncoordinated. They say it is time for a new look at the federal
response and that this could affect federal agencies other than EEOC,
such as the Department of Justice.
Many actions proposed, including some of the options discussed here,
would require legislative changes. To ensure consideration of all
views, any review of employment rights issues should include experts
and advocates from the civil rights community.
RECOMMENDATION TO THE CONGRESS
----------------------------------------------------------- Letter :10
We recommend that the Congress establish a commission of experts,
including representatives from the civil rights community, to develop
legislative and administrative means that would enable EEOC to better
carry out its mission as part of an overall federal strategy for
enforcing federal employment nondiscrimination laws.
AGENCY COMMENTS
----------------------------------------------------------- Letter :11
In commenting on a draft of this report, EEOC's Acting Chairman
stated that EEOC's workload growth now far surpasses the point where
making internal adjustments or reorganizing will solve its problems.
He also stated that EEOC's present case management system is based on
years of experience and that EEOC has retained the methods and
practices that have proven effective and eliminated those that impede
the system. He also commented that while EEOC welcomes
recommendations to improve its charge resolution system, adjusting
the charge process alone will not solve the underlying problem of too
few resources for the amount of work to be done.
The Acting Chairman stated that our report generally provided a
balanced depiction of EEOC's ability to meet the demands of its
current enforcement responsibilities. However, he stated some
specific concerns and observations, clarified several technical
matters, and provided revised data on fiscal year 1993 activities and
accomplishments. We have considered EEOC's comments and the
additional information and revised our report as necessary. EEOC's
comments on our draft report appear in appendix II.
--------------------------------------------------------- Letter :11.1
Unless you publicly announce its contents earlier, we plan no further
distribution of this report until 7 days from its issue date. At
that time, we will send copies to the appropriate congressional
committees, the Acting Chairman of the Equal Employment Opportunity
Commission, and other interested parties. We will make copies
available to others on request. This report was prepared under the
direction of Linda G. Morra, Director, Education and Employment
Issues, who can be reached on (202) 512-7014. The major contributors
to this report are listed in appendix III.
Sincerely yours,
Janet L. Shikles
Assistant Comptroller General
SUGGESTED OPTIONS FOR IMPROVING
THE FEDERAL GOVERNMENT'S ABILITY
TO ENFORCE EMPLOYMENT
NONDISCRIMINATION LAWS
=========================================================== Appendix I
The following are suggested options for improving the federal
government's ability to enforce employment nondiscrimination laws.
We have not evaluated these options and have no comment on them
beyond noting that some, such as restructuring the federal effort to
enforce employment nondiscrimination laws, would require actions
beyond EEOC's control.
FEDERAL USE OF ADR APPROACHES
AND EEOC'S ADR PILOT
--------------------------------------------------------- Appendix I:1
Advocates of alternative dispute resolution approaches believe that
their use usually minimizes the time and resources needed to resolve
disputes. For this reason, federal agencies' interest in resolving
disputes using these approaches as alternatives to the traditional
judiciary process is growing. For example, in specific statutes,
such as the Administrative Dispute Resolution Act of 1990 and the
Civil Rights Act of 1991, the Congress has included language
encouraging federal agencies to use ADR. In addition, on October 23,
1991, the President's Executive Order 12778 was issued; it requires
federal agencies to consider the use of an ADR approach in cases
involving a civil claim, if this approach (1) is warranted in the
context of a particular case and (2) will contribute to the prompt,
fair, and efficient resolution of such a case. Further, in response
to the Civil Justice Reform Act of 1990, 38 of the 94 federal
district courts have used ADR to reduce civil justice delays and
expenses. The scope of ADR use varies greatly, but some of these
courts have made ADR mandatory.
By March 1994, EEOC expects to have the results of a mediation pilot
program that began in April 1993 in the Commission's Houston, New
Orleans, Philadelphia, and Washington, D.C., field offices. In this
pilot, 75 charges at each location were randomly selected to be--with
the concurrence of the charging parties--ADR cases; an additional 75
charging parties were randomly selected to be control (non-ADR) cases
that will be processed in the usual manner. For the ADR charges, the
charging party and the respondent (employer) may have a neutral party
outside of EEOC assist them through mediation to reach a voluntary,
negotiated settlement of the dispute. Participation in the ADR group
is voluntary for both the charging party and the employer.
The mediators in this pilot have no power to decide the outcome of
charges. Resolution of the dispute is negotiated by the charging
party and the employer, and either side in the dispute may end
mediation at any time. If mediation does not lead to resolution of
the dispute, the charging party may pursue the matter through EEOC's
regular investigation process. The mediator may not discuss the case
with EEOC or court officials and cannot be called as a witness for a
lawsuit. Formal agreements that the charging party and the employer
reach (1) will have the same force as settlements EEOC would make and
(2) are enforceable in court.
EEOC will evaluate the results of this pilot program by comparing the
costs, timeliness, and effectiveness of processing ADR charges to
those of the control charges. EEOC also will request charging
parties and employers to complete questionnaires giving their
opinions and perspectives on the effectiveness of the charge
processing and resolution.
MEDIATION: AN ADR APPROACH
------------------------------------------------------- Appendix I:1.1
Mediation was the ADR approach discussed most often in our interviews
and the documents we reviewed. Mediation offers the potential for a
quick resolution, instead of the usually protracted legal process.
Mediation provides an option for those whose claims involve small
amounts of money; it may help to create a more positive climate
between the charging party and the employer, who could be involved
with each other after the dispute is resolved. Finally, if mediation
does take less time and staff resources than a full investigation,
mediation could free resources for EEOC to do more individual and
systemic investigations.
However, mediation has potential drawbacks. Like some other forms of
ADR, mediation without a commensurate increase in systemic
investigations could be seen as an indication that EEOC's mission has
changed from law enforcement to claims settlement, which may be an
inappropriate use of funds allocated to law enforcement. Another
concern is that mediation may provide the incentive for the charging
party and the employer to take the quickest or least expensive way to
settle the charge, without regard to whether discrimination has
occurred. Without a full EEOC investigation, (1) a charging party
may not receive the full redress to which he or she is entitled or
(2) an employer may agree to compensate the charging party even
though the charges may lack merit. Another potential drawback arises
when charges not resolved through mediation revert to EEOC. Because
these charges would be older, they might be difficult to investigate.
Mediation would need to avoid the problems of the fact-finding
conference used in the era of EEOC's rapid charge-processing system
(1979-83). Under that system, charging parties, as well as
employers, too often agreed to settle when it was not in their best
interests. This system was designed to reduce the large number of
backlogged charges; it offered the charging party and the employer an
early opportunity to resolve the charge through negotiation of a
no-fault settlement with minimal investigation.
In the rapid charge-processing system, an investigator would use
information from the intake interview to prepare questions to forward
to the employer, along with a summons to appear, usually within a
month, with records and documents relevant to the charge. At the
conference, the investigator could play multiple roles: a neutral
party who controlled the process, a helper to the party needing
assistance, and a mediator when settlement appeared possible. The
support for this approach says that it avoids delays due to written
requests for information.
In our 1988 report, we criticized this approach as insufficient to
provide a full and proper investigation. Moreover, by encouraging
settlement, this approach could exert a potentially unfair influence
on the outcome of the dispute. The approach did provide more timely
relief to charging parties, as we noted in our October 1988 report;
however, it overemphasized negotiating charges that had little
merit.\1
Another suggested ADR approach--the use of hearing examiners--would
completely remove employment discrimination disputes from the courts.
The rationale for this approach includes the view that (1) the
overwhelming majority of disputes do not involve questions of law but
of fact; (2) the large majority of charges are individual cases, not
systemic; and (3) by having an administrative procedure to prevent
employers from enforcing discriminatory policies and practices, the
resources saved could be used to educate employers and employees
alike--and reduce employment discrimination. Removing employment
discrimination cases from the courts would require legislative
changes.
--------------------
\1 Equal Employment Opportunity: EEOC and State Agencies Did Not
Fully Investigate Employment Discrimination Charges (GAO/HRD-89-11),
Oct. 11, 1988).
SCREENING CHARGES TO MAKE
BETTER USE OF RESOURCES
--------------------------------------------------------- Appendix I:2
In two of its field offices, EEOC is experimenting with a screening
process (called triage) to deal with new charges. This process is
designed to begin an investigation at intake to (1) improve the
development of evidence when discrimination appears to have occurred,
(2) allocate staff resources more appropriately, and (3) resolve all
charges more quickly.
During intake, at one field office, staff are expected to obtain from
charging parties all evidence that supports their discrimination
claims and assess the weight of evidence obtained. The staff then
assign each new charge to one of four case categories: (1) lacks
direct or circumstantial evidence to support the discrimination claim
although the charging party was in a position to obtain such
evidence; (2) contains some evidence of discrimination, but the
evidence is weak; (3) contains some discrimination evidence that is
moderately strong; and (4) contains strong discrimination evidence.
In the last category, the case offers possible cause to believe
discrimination occurred.
A supervisor and the field office deputy director or director review
the assigned category, as well as the intake staff's strategy for the
case. The office's senior attorney also reviews cases assigned to
category 3 or 4 above. After these reviews, the regular
investigation process starts. Under this approach, however, only the
charges in categories 3 and 4 receive full investigation by EEOC
staff.
The EEOC field offices expect cases assigned to category 1 to be
closed quickly as no-cause determinations, with minimal investigation
after the employer provides the requested evidence. Cases assigned
to category 2 or 3 are candidates for conciliation and settlement.
Cases assigned to category 4 are to be discussed bimonthly with legal
staff to develop evidence supporting a reasonable-cause
determination, which could also be resolved through conciliation and
settlement. A case's category will be changed, if necessary, as the
case develops. The second EEOC field office in the experiment also
assigns incoming charges into one of the four categories and follows
up accordingly; however, this office's process is less formal.
The first EEOC field office is evaluating the success of its program
by tracking four measures: (1) average processing time, (2)
reasonable-cause finding rates, (3) settlement rates, and (4)
charging parties' complaints to EEOC and the Congress about the
resolution process. EEOC is comparing these data with those compiled
using the regular investigation process.
EEOC headquarters officials regard these experiments in screening
charges as tentative. However, preliminary results from the first
field office show that during a 17-month period, the rate of
reasonable-cause determinations increased slightly; the rate of
settlements remained about the same, as did the number of complaints
by charging parties to EEOC officials or the Congress or both. The
average processing time during this period decreased significantly,
however, from 598 days in fiscal year 1990 to 303 days in fiscal year
1992. During the first 6 months of fiscal year 1993, the average
processing time was 204 days.
EEOC officials who endorse this approach believe that many charges
have little or no merit and that investigators may be able to
identify some of these during intake or early in an investigation.
These officials believe such cases should receive little of EEOC's
attention; more EEOC efforts should be focused on cases with more
potential merit. Others believe triage is inappropriate; this is
because, for the vast majority of charges, determining a case's
potential merit requires more evidence than can be obtained using
triage at intake; triage could do a disservice to some charging
parties whose cases may be dismissed, without a full investigation,
with a no-cause finding.
In commenting on a draft of this report, EEOC stated that other EEOC
field offices also routinely emphasize certain aspects of charge
resolution systems for fine tuning and improvements and that it was
through such methods that its existing charge processing system was
developed and such experiments are encouraged.
OPTIONS TO IMPROVE THE QUALITY
OF INVESTIGATIONS
--------------------------------------------------------- Appendix I:3
Options offered to improve the quality of investigations include
giving investigators more training in the kind of evidence needed
to (1) determine the merits of charges and (2) refer cases that
may warrant litigation to EEOC commissioners for review;
having investigators specialize in certain charges, such as ADEA,
ADA, or title VII, rather than having them continue as
generalists who must attempt to master the technical
requirements and nuances of all equal employment opportunity
laws;
involving EEOC lawyers earlier in the investigative process to
better educate investigators on legal issues and to ensure that
cases are properly investigated and developed to facilitate
litigation when warranted;
creating specialized professional intake positions, giving
investigators--who usually must work intake for a portion of
each month--more time to investigate charges; and
revising the practice of evaluating investigators' annual
performance on the basis of the number of charges processed
during the evaluation period.
EEOC officials noted that (1) since 1987, investigators have received
more extensive training, partly due to some new laws, such as ADA,
which are complex and require special training, and (2) having
investigators specialize in types of charges would require more,
rather than fewer, investigators, and EEOC would lose the flexibility
of investigators who are qualified to handle any charge assigned to
them. In addition, when concurrent charges are filed--that is,
charges involving two or more laws--more than one investigator would
have to work on the case. According to an EEOC official, involving
attorneys when a charge is received would require more attorneys and
is not warranted at the intake stage. EEOC's policy is to involve
its attorneys at an early stage and have them available for advice
whenever needed.
An advantage of using investigators at intake is that their training
and experience enhance their ability to obtain appropriate
evidentiary information at the initial interview. However, some
believe that investigators may narrow the scope of the charges at
intake so that they may be resolved more quickly.
Another concern is that management may pressure investigators to
resolve cases in a certain number of days because an investigator's
annual performance is evaluated on the basis of the number of charges
processed rather than on (1) the completion of full investigations or
(2) whether the cases were brought to appropriate conclusions based
on complete evidence. This evaluation system encourages
investigators to resolve more charges as no-cause determinations or
administrative closures, one official said, because these are usually
processed quickly.
In commenting on a draft of this report, EEOC stated that--rather
than pressure from management--it is the large workload and related
exigencies, including the pressure from all parties involved in each
case, that drives productivity. EEOC acknowledged, however, that the
sheer size of the workload forces investigators to feel pressured and
that an old inventory of charges has a detrimental impact on quality.
PURSUING SYSTEMIC
DISCRIMINATION CHARGES MORE
ACTIVELY
--------------------------------------------------------- Appendix I:4
EEOC's critics have charged that the Commission should do more to
eliminate systemic discrimination, which many believe would be the
best use of EEOC resources. They have suggested that EEOC could
increase its systemic actions by (1) working with constituency groups
to identify likely targets for compliance reviews and (2) making
greater use of testers--people who apply for jobs with the sole
purpose of uncovering discriminatory employment practices. In our
October 1988 report, we noted an additional option suggested by a
former EEOC official--reallocating responsibilities between EEOC and
FEPAs, with FEPAs handling more individual charges and EEOC focusing
on broader investigations, including class action and systemic
charges.
In its November 1993 comments on a draft of this report, EEOC
objected to the suggestion of shifting more individual charges to
FEPAs so that EEOC might initiate more systemic charges. EEOC
pointed out that FEPAs do not have the capacity to handle more
charges because of decreasing budgets at the state and local
government levels.
EEOC could not enhance the systemic investigation effort, officials
said, without taking funds and staff from other critical areas.
Systemic case investigators have to be more knowledgeable and
experienced than the average investigators who work on individual
cases, one EEOC official noted. Systemic case opportunities were
less today than in the 1970s and 1980s because not as many potential
cases meet EEOC's systemic charge standards, EEOC officials said;
numbers alone are no longer sufficient justification to begin
developing a systemic case. In addition, companies have become more
skilled in avoiding actions that might provide evidence of systemic
discrimination.
RESTRUCTURING EEOC, RELATED
AGENCIES, AND CIVIL RIGHTS LAWS
--------------------------------------------------------- Appendix I:5
Several proposals suggested promoting efficiency by restructuring
EEOC or related federal agencies and the ways that civil rights laws
are enforced or both.
One proposal is to reorganize EEOC so that a director heads
it--rather than a commission. Critics of a commission structure
cited the (1) relative lack of power and authority of individual
commissioners other than the chairman; (2) infrequency of commission
meetings, as well as the fact that most meetings are not public; and
(3) the potential for commissioners' oversensitivity to issues
involving specific constituencies. Critics of the commission
structure suggested that one person--a director--would provide less
expensive, more responsive leadership.
A second proposal is to assemble equal opportunity efforts under one
agency. Critics complain that federal enforcement of equal
opportunity is unnecessarily fragmented among EEOC, the Department of
Justice, the Department of Education, and the Department of Labor's
Office of Civil Rights Compliance and Office of Federal Contract
Compliance programs. For example, EEOC must refer the results of an
investigation of civil rights charges under title VII and ADA against
a state or local government to the Department of Justice for
prosecution--a requirement that delays litigation, one EEOC official
said, because Justice officials need more time to familiarize
themselves with the details and issues.
A third proposal is to increase the United States Commission on Civil
Rights' oversight role of federal efforts to protect civil rights.
Established in 1957 to be an independent, bipartisan, fact-finding
agency, the Commission is led by eight commissioners--four appointed
by the President and two each appointed by the President Pro Tempore
of the Senate and the Speaker of the House. No more than four
commissioners may be affiliated with any one political party. The
President designates the Commission's chairperson and vice
chairperson as well as the Commission's staff director. Although it
has no rulemaking or enforcement powers, many viewed the Commission
as extremely influential during the 1960s and 1970s; it was
characterized as serving, through its reports and recommendations, as
"America's conscience." The option proposed would have the Commission
provide more frequent evaluations of federal civil rights policies
and enforcement.
(See figure in printed edition.)Appendix II
COMMENTS FROM THE EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
=========================================================== Appendix I
See p. 10.
(See figure in printed edition.)
See comment 4.
(See figure in printed edition.)
(See figure in printed edition.)
(See figure in printed edition.)
(See figure in printed edition.)
The following are GAO's comments on the Equal Employment Opportunity
Commission's letter dated November 1, 1993.
GAO COMMENTS
--------------------------------------------------------- Appendix I:6
1. Subsequent to its November 1, 1993, letter, EEOC revised the
workload totals it had given us. Page 10 of the final report
contains the revised numbers.
2. The document referred to as Tab A and other documents that
accompanied EEOC's November 1, 1993, letter are not included in this
report.
3. The statement referred to was revised to reflect EEOC's emphasis
on the number of litigation cases the Commission can manage
effectively.
4. Recognition of the statutory differences is provided on pages 3
and 6.
5. The quoted language has been deleted.
6. The phrase "minimally sufficient" has replaced the phrase
"satisfies all legal requirements."
7. We do not suggest that EEOC curtail the number of charges taken
into the system. Although a number of the options for improving the
federal government's ability to enforce employment discrimination
laws address the handling of charges once they are received, we did
not evaluate these options.
MAJOR CONTRIBUTORS TO THIS REPORT
========================================================= Appendix III
HEALTH, EDUCATION, AND HUMAN
SERVICES DIVISION,
WASHINGTON, D.C.
Larry Horinko, Assistant Director, (202) 512-7001
William Milletary, Evaluator-in-Charge
Ted Shepherd, Evaluator
Susan Poling, Attorney
Laurel Rabin, Reports Analyst
Ann McDermott, Publishing Advisor
RELATED GAO PRODUCTS
=========================================================== Appendix 0
EEOC: Federal Affirmative Planning Responsibilities
(GAO-T-GGD-94-20, Oct. 13, 1993).
EEOC: An Overview (GAO/T-HRD-93-30, July 27, 1993).
Federal Employment: Sexual Harassment at the Department of Veterans
Affairs (GAO/T-GGD-93-12, Mar. 30, 1993).
Affirmative Employment: Assessing Progress of EEO Groups in Key
Federal Jobs Can Be Improved (GAO/GGD-93-65, Mar. 8, 1993).
Information on EEO Discrimination Complaints (GAO/GGD-93-6RS, Dec.
31, 1992).
Age Employment Discrimination: EEOC's Investigation of Charges Under
1967 Law (GAO/HRD-92-82, Sept. 4, 1992).
Federal Workforce: Continuing Need for Federal Affirmative
Employment (GAO/GGD-92-27BR, Nov. 27, 1991).
Federal Affirmative Employment: Status of Women and Minority
Representation in the Federal Workforce (GAO/T-GGD-92-2, Oct. 23,
1991).
Federal Affirmative Action: Better EEOC Guidance and Agency Analysis
of Underrepresentation Needed (GAO/T-GGD-91-32, May 16, 1991).
Federal Affirmative Action: Better EEOC Guidance and Agency Analysis
of Underrepresentation Needed (GAO/GGD-91-86, May 10, 1991).
EEO at Justice: Progress Made but Underrepresentation Remains
Widespread (GAO/GGD-91-8, Oct. 2, 1990).
ADP Systems: EEOC's Charge Data System Contains Errors but System
Satisfies Users (GAO/IMTEC-90-5, Dec. 12, 1989).
Equal Employment Opportunity: Women and Minority Aerospace Managers
and Professionals, 1979-86 (GAO/HRD-90-16, Oct. 26, 1989).
Discrimination Complaints: Payments to Employees by Federal Agencies
and the Judgment Fund (GAO/HRD-89-141, Sept. 25, 1989).