oversight

Environmental Protection Agency: Continued Improvement Needed in Assessing Equal Employment Opportunity

Published by the Government Accountability Office on 2003-06-26.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

             United States General Accounting Office

GAO          Report to Congressional Requesters




June 2003
             ENVIRONMENTAL
             PROTECTION
             AGENCY
             Continued
             Improvement Needed
             in Assessing Equal
             Employment
             Opportunity




GAO-03-462
             a
                                               June 2003


                                               ENVIRONMENTAL PROTECTION AGENCY

                                               Continued Improvement Needed in
Highlights of GAO-03-462, a report to          Assessing Equal Employment
congressional requesters
                                               Opportunity



Minority employees at the EPA                  EPA had difficulty providing accurate EEO data because of a data system
reported for a number of years that            that the agency believes was unreliable and was further compromised by
the agency had discriminated                   data entry problems. When GAO identified problems with the information
against them based on their race               EPA provided, the agency manually reconstructed data for fiscal years 1995
and retaliated against them for                through 2002. The reconstructed data indicate that during this period 548
filing complaints. These issues
were aired at hearings held by the
                                               EPA employees filed 679 discrimination complaints, and the agency closed
House Committee on Science at                  588 complaints. Complaints were closed with 125 dismissals, 48
which EPA said it would take                   withdrawals, 178 settlements, 5 remands, and 222 agency decisions not
actions to ensure a fair and                   supporting the claimant. GAO cannot attest to the accuracy of these
discrimination free workplace.                 numbers but believes they are indicative of the situation at EPA. EPA
GAO was asked to review (1) the                recently procured new software to facilitate accurate tracking and reporting
accuracy of EPA’s EEO data,                    of EEO information and believes the software will rectify data problems.
(2) various issues about the
processes used to resolve                      EPA has never had official standard operating procedures for complaint
discrimination complaints, and                 processing, which are required by regulation. Rather, EPA said that
(3) the disciplinary actions taken             complaints were processed under general guidance provided by the Equal
for managers who discriminate.
                                               Employment Opportunity Commission (EEOC) until draft procedures,
                                               prepared in July 2001, were put into use.

GAO recommends that EPA                        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
•    evaluate its new EEO software             contributing factor was that investigations, which are supposed to be done
     system to ensure it results in a          in 180 days, averaged a total of 465 days. The firms used by EPA failed to
     reliable system for tracking              conduct thorough investigations and their reports did not provide complete
     cases and accumulating
                                               or factual accounts of the incidents leading to the complaints. As a result,
     accountability data,
•    finalize standard operating               investigations often had to be redone, adding to the amount of time needed
     procedures for EEO complaint              to complete them. Over the last year, EPA has discontinued the use of these
     processing, and                           firms and contracted with new ones that it believes are doing a much better
•    develop a process to assess all           job. EPA has also increased its own staffing for EEO matters to try to
     cases in which discrimination             reduce processing times.
     is found or allegations of
     discrimination are settled to             EPA does not have a specific process for determining whether managers
     determine whether managers,               involved in discrimination complaints did in fact discriminate and if so
     or other employees, should be             whether managers should be disciplined. EPA officials told us that they
     disciplined.                              have relied on training to rectify and prevent discriminatory conduct. Other
                                               agencies have formal processes to evaluate each case in which
In commenting on the report, EPA
                                               discrimination is found or a complaint is settled to determine whether
said it would develop policies for
disciplining managers found to                 discipline is warranted. EPA will be required to collect and report the
discriminate but did not comment               number of agency employees disciplined for discrimination or harassment
on the other recommendations.                  under the provisions of the Notification and Federal Employee Anti-
                                               Discrimination and Retaliation Act, effective in October 2003. A process like
                                               those in place at other agencies should also help EPA meet this requirement.
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.
Contents



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




                         Page i                       GAO-03-462 Assessing Equal Employment Opportunity
Contents




Abbreviations

ADR          Alternative Dispute Resolution
EEO          equal employment opportunity
EEOC         Equal Employment Opportunity Commission
OCR          Office of Civil Rights




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Page ii                             GAO-03-462 Assessing Equal Employment Opportunity
A
United States General Accounting Office
Washington, D.C. 20548



                                    June 26, 2003                                                                     Lert




                                    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



                                    Page 1                          GAO-03-462 Assessing Equal Employment Opportunity
                   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



                   Page 2                          GAO-03-462 Assessing Equal Employment Opportunity
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



Page 3                         GAO-03-462 Assessing Equal Employment Opportunity
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 Anti-
Discrimination 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




Page 4                         GAO-03-462 Assessing Equal Employment Opportunity
             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).




             Page 5                             GAO-03-462 Assessing Equal Employment Opportunity
                           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
                           unreliable because of data entry problems. EPA officials also maintain
EEO Data Was               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
                           discrimination complaint data are necessary for EPA’s OCR to track
Taking Steps to            complaints and look for trends that might indicate the need for specific
Improve                    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



                           Page 6                         GAO-03-462 Assessing Equal Employment Opportunity
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.



Page 7                         GAO-03-462 Assessing Equal Employment Opportunity
Table 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      145a       167a        197    243       189b      149c
New                           76        62        83        116          78    75         85      104
Closed                        78        57        63         86          44    54        123        83
                                  d                                       d                   d
Ending                      142        147       165        197        243    264       157       171d
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.



Table 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
Total                                                             548                             679
Source: EPA.




Page 8                                       GAO-03-462 Assessing Equal Employment Opportunity
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.




Page 9                                 GAO-03-462 Assessing Equal Employment Opportunity
Table 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.




Table 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 1995-
                                           2002 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.




                                           Page 10                                    GAO-03-462 Assessing Equal Employment Opportunity
                             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.




                             Page 11                             GAO-03-462 Assessing Equal Employment Opportunity
                         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 processing internal complaints of discrimination, but it
Procedures for           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
                         waiting until the EEO-Net software is fully operational to finalize the
but This Is Being        standard operating procedures. The system became operational in
Addressed                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
                         office plans to hire additional staff members. (See table 3.) EEOC
Assigned for Complaint   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).




                         Page 12                                GAO-03-462 Assessing Equal Employment Opportunity
can ensure the timely processing of discrimination complaints and
recommends that this material weakness be closed.



Table 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
Total staff                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 full-
time. 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



Page 13                                  GAO-03-462 Assessing Equal Employment Opportunity
                    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 long-
                    standing backlog of overdue cases. The backlog was caused in part by
Speed Complaint     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).




                    Page 14                        GAO-03-462 Assessing Equal Employment Opportunity
                        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
                        discriminated, EPA is supposed to determine on a case-by-case basis
Process to Discipline   whether individual employees should be disciplined. However, EPA does
Managers for            not have a process in place to review discrimination complaint settlements
                        to determine if any manager or employee has participated in improper
Discrimination          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.



                        Page 15                        GAO-03-462 Assessing Equal Employment Opportunity
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).




Page 16                           GAO-03-462 Assessing Equal Employment Opportunity
                            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
                            for “holding managers accountable for their actions and disciplining them
Managerial Accountability
                            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



                            Page 17                         GAO-03-462 Assessing Equal Employment Opportunity
                               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
                               routinely report data on disciplinary actions taken against managers for
Managers, but a New Law
                               discrimination or other types of misconduct. Data of this nature are
Requires This Information      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.




                               Page 18                         GAO-03-462 Assessing Equal Employment Opportunity
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
                      new EEO software system to ensure it resulted in a reliable system for
Executive Action      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




                      Page 19                         GAO-03-462 Assessing Equal Employment Opportunity
                  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.




                  Page 20                         GAO-03-462 Assessing Equal Employment Opportunity
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




Page 21                       GAO-03-462 Assessing Equal Employment Opportunity
Appendix I

Comments from the Environmental                                         Append
                                                                             xeis




Protection Agency                                                        AppenIx
                                                                               di




(450085)     Page 22    GAO-03-462 Assessing Equal Employment Opportunity
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