Equal Employment Opportunity: Improved Coordination Needed
between EEOC and OPM in Leading Federal Workplace EEO (16-JUN-06,
GAO-06-214).
In April 2005 GAO reported on the EEO policy framework in the
federal workplace and the roles of EEOC and OPM. This report, in
response to a congressional request, provides information on (1)
federal agency EEO and human capital managers' views of the EEO
framework requirements; (2) their views on the usefulness of
guidance and feedback from EEOC and OPM concerning these
requirements; and (3) how and to what extent EEOC and OPM
coordinate in developing policy, providing guidance, and
exercising oversight.
-------------------------Indexing Terms-------------------------
REPORTNUM: GAO-06-214
ACCNO: A55623
TITLE: Equal Employment Opportunity: Improved Coordination
Needed between EEOC and OPM in Leading Federal Workplace EEO
DATE: 06/16/2006
SUBJECT: Diversity management
Fair employment programs
Hiring policies
Human capital management
Human capital policies
Personnel recruiting
Surveys
Duplication of effort
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GAO-06-214
* Report to the Ranking Minority Member, Committee on Homeland Security
and Governmental Affairs, U.S. Senate
* June 2006
* equal employment opportunity
* Improved Coordination Needed between EEOC and OPM in Leading
Federal Workplace EEO
* Contents
* Results in Brief
* Background
* Survey Respondents View Certain Requirements as Contributing Most
to EEO but See Redundancies and Differing Reporting Requirements
as Creating Administrative Burden
* Survey Respondents View Some Policies and Programs as Having
Very Similar or Redundant Requirements
* Survey Respondents Say Different Reporting Policies Create
Burdens for Their Agencies
* Agencies Are More Satisfied with Guidance and Feedback from EEOC
Than with That from OPM and Believe Both Could Do More
* Officials Believe Both EEOC and OPM Could Do More to Help
Agencies with EEO, Workforce Diversity, and Affirmative
Employment
* Officials' Views on Guidance and Feedback from EEOC and OPM
* Limited Coordination between EEOC and OPM Limits Efficiency
* EEO and Human Capital Officials Said That EEOC- OPM
Coordination Would Benefit Their Agencies
* Government Policy Has Recognized the Importance of
Coordination in Carrying Out EEO; Coordination between EEOC
and OPM Is Good Management
* Coordination between EEOC and OPM Is Limited, Particularly
with Regard to Oversight
* Conclusions
* Recommendations for Executive Action
* Matter for Congressional Consideration
* Agency Comments and Our Evaluation
* Objectives, Scope, and Methodology
* The Framework for EEO in the Federal Workplace
* Excerpts from EEO Leadership Survey Questionnaire and Summary Results
* Agencies from Which Respondents Returned the EEO Leadership Survey
Questionnaire
* Comments from the Equal Employment Opportunity Commission
* Comments from the Office of Personnel Management
* GAO Contact and Staff Acknowledgments
Report to the Ranking Minority Member, Committee on Homeland Security and
Governmental Affairs, U.S. Senate
June 2006
EQUAL EMPLOYMENT OPPORTUNITY
Improved Coordination Needed between EEOC and OPM in Leading Federal
Workplace EEO
Contents
Tables
Figures
Abbreviations
June 16, 2006Letter
The Honorable Joseph I. Lieberman Ranking Minority Member Committee on
Homeland Security and Governmental Affairs United States Senate
Dear Senator Lieberman:
The federal government has a policy to provide a workplace for its
employees that is fair, equitable, and free from discrimination and
retaliation. To help achieve this policy, the federal government has
created a framework of statutes, policies, regulations, and guidance in
order to prohibit discrimination, ensure equal employment opportunity
(EEO), and value workforce diversity. In April 2005, in response to your
request, we reported on the EEO policy framework1 under which (1) certain
personnel practices are prohibited, including unlawful discrimination
based on race, color, religion, gender, national origin, age, and
disability; (2) avenues of redress are offered when discrimination and
retaliation have been alleged;2 and (3) affirmative employment and
minority recruitment programs are required to ensure EEO in the federal
workforce.3
Within the EEO framework, federal agencies are responsible for providing
for a fair and nondiscriminatory workplace. The Equal Employment
Opportunity Commission (EEOC) and the Office of Personnel Management (OPM)
play important roles in fostering a fair, equitable, and inclusive
workplace at federal agencies through their leadership and oversight.4
EEOC is responsible for the enforcement of antidiscrimination laws and
oversight of federal agency EEO programs, and OPM is responsible for
ensuring that federal agencies adhere to federal merit system principles,
which include nondiscrimination. In carrying out their responsibilities,
both EEOC and OPM issue regulations, directives, and guidance that
supplement the EEO framework and establish requirements for agencies,
oversee agencies' performance in meeting framework requirements, and
provide feedback to agencies. EEOC has the additional responsibility of
providing leadership and coordination of federal EEO efforts in order to
avoid conflict, competition, duplication, and inconsistency.
During the course of our review that led to our April 2005 EEO framework
report,5 we heard from EEO and human capital officials at selected
agencies about similarities and redundancies in EEO-related requirements
and concerns about the usefulness of guidance and feedback received from
those agencies. In response to your request and to better understand these
and other issues, we surveyed EEO and human capital officials in the
executive branch to determine their views on (1) the requirements dealing
with EEO and workforce diversity and the extent to which the requirements
contribute to ensuring EEO and diversity in the workplace and (2) the
usefulness of guidance and feedback they receive from EEOC and OPM
concerning these requirements. In addition, we examined how and to what
extent EEOC and OPM coordinate with each other in developing policy,
providing guidance, and exercising oversight of federal line agencies.6
To accomplish our objectives, we sent separate surveys to the EEO/civil
rights directors and the chief human capital officers/human capital
directors at the 45 executive branch agencies (other than the United
States Postal Service and intelligence agencies) with 5007 or more
employees that are required to file annual reports with EEOC on their
affirmative employment program and that also file annual reports with OPM
on their Federal Equal Opportunity Recruitment Program (FEORP).
Collectively, the 45 agencies employed 97 percent of the nonpostal federal
workforce as of September 30, 2004. Of the 90 officials to whom we sent
the survey, 83 officials or their designees (92.2 percent) responded from
October through December 2004. We received a response from either an EEO
or human capital official at all 45 agencies, and from both at 38
agencies. Prior to the survey, we also interviewed EEO and human capital
officials at 6 of these 45 agencies. In addition, we reviewed statutes,
executive orders, and other executive policies that form the EEO framework
as well as EEOC and OPM requirements placed on agencies and compared them
to each other. Agency officials expressed their views, through both the
survey and interviews, about the extent to which the different framework
requirements contribute to EEO, the extent of redundancy between
EEO-related requirements and the duplication of effort this causes, the
burdens created by EEOC's and OPM's differing policies on data-related
issues, and the usefulness of EEOC's and OPM's guidance and feedback. We
provide examples of agency officials' comments on these matters; however,
we did not independently evaluate the extent to which the different
requirements contribute toward EEO, the extent of redundancy of EEO
requirements, the merits of differing EEOC and OPM policies, or the
usefulness of guidance and feedback.
We discussed with EEOC and OPM how they coordinate with each other in
carrying out their roles and responsibilities within the EEO framework.
Since the application of EEO laws varies between the branches (executive,
legislative, and judicial) of the federal government, this report focuses
primarily on the EEO framework applicable to the executive branch. We
performed our work from May 2004 through February 2006 in accordance with
generally accepted government auditing standards. Further details on our
objectives, scope, and methodology are in appendix I.
Results in Brief
EEO and human capital officials in federal agencies who responded to our
survey viewed (1) EEOC's affirmative employment program requirements and
standards, (2) the executive order requiring procedures for providing
reasonable accommodation to individuals with disabilities, and (3) the
President's Management Agenda (PMA) scorecard standard on
underrepresentation and workforce diversity as the framework elements
contributing the most to achieving EEO, affirmative employment, and
workforce diversity, and as having the most influence on human capital
policies, practices, and strategic planning at their agencies. In
contrast, survey respondents identified (1) OPM's FEORP regulations
governing recruitment of underrepresented groups, (2) the executive order
on Hispanic employment, and (3) OPM's program for employing disabled
veterans as contributing less. About two-thirds of survey respondents also
noted that some requirements of the EEO framework are very similar or
redundant, such as the requirements under EEOC's affirmative employment
program; OPM's regulations for FEORP; and the executive order on Hispanic
employment, which OPM oversees. Some agency EEO and human capital
officials stated that redundant reporting requirements create duplication
of effort, with agencies sometimes having to submit information on the
same EEO efforts in different reports to EEOC and OPM. They also said that
inconsistent requirements regarding analysis of workforce data create
administrative burden.
When asked about the overall helpfulness of EEOC and OPM in their efforts
to ensure EEO in the workplace or to achieve affirmative employment or
workforce diversity objectives, about 56 percent of survey respondents who
had at least some interaction with EEOC said EEOC was of only some,
little, or no help, and 80 percent of survey respondents who had at least
some interaction with OPM had the same view of OPM. The majority of these
respondents said EEOC and OPM should be doing more to help agencies. For
example, one agency official said that OPM should do more to share model
agency recruiting practices and assist with identifying effective
recruitment sources, particularly for people with disabilities, and that
EEOC should do more in-depth training and more sharing of model programs
and make more suggestions for improvement. Although respondents said that
EEOC and OPM should be doing more to help agencies, they did find some
usefulness, in varying degrees, in guidance and feedback from EEOC and
OPM. For example, with regard to guidance concerning EEO, affirmative
employment, or workforce diversity, while about 79 percent of those
respondents who had at least some interaction with EEOC said guidance from
EEOC personnel concerning EEO, affirmative employment, and workforce
diversity was useful or very useful (which we considered a positive
response), about 42 percent of respondents who had at least some
interaction with OPM said that guidance from OPM personnel was useful or
very useful. With regard to feedback on their agency's performance or on
reports submitted under the EEO framework, from 45 to 60 percent of
respondents who had at least some interaction with EEOC said that feedback
from EEOC was useful or very useful, while less than 34 percent of those
respondents who had at least some interaction with OPM said that of
feedback from OPM.
Over 80 percent of respondents to our survey said more coordination
between EEOC and OPM would benefit their agencies. Some agency officials
said that the lack of such coordination resulted in added requirements on
them and detracted from the efficiency of their own work. In our review,
we found evidence that there was little coordination between EEOC and OPM
in developing policy, providing guidance, and exercising oversight of
federal agencies. For example, when conducting oversight, EEOC and OPM
officials do not routinely review reports that the other agency receives
from federal agencies, even though those reports deal with similar
matters. In addition, EEOC and OPM officials conducting on-site reviews of
EEO-related matters at agencies do not coordinate with each other. Policy
disagreements and a lack of a mutual understanding of each other's
authority, roles, and responsibilities appear to have limited the extent
to which the two agencies work together to ensure that EEO is an integral
part of human capital management. This lack of coordination is contrary to
government policy calling for coordinated EEO effort and good management
practice, and results in lost opportunity to realize consistency,
efficiency, effectiveness, and public value in EEO policy making and
oversight. The Office of Management and Budget (OMB) recommended in 2005 a
regular/formal working relationship between the two agencies to improve
government efficiency in compliance reviews. In discussions with us, while
EEOC officials acknowledged a need to coordinate and develop a formal
mechanism to do so, OPM officials expressed a belief that current ad hoc
coordination arrangements are sufficient.
We recommend that EEOC and OPM (1) consistent with OMB's recent
recommendation, develop a means to communicate and coordinate on a
continuing basis in carrying out their responsibilities under the federal
workplace EEO framework; (2) explore opportunities to consolidate and
streamline like requirements within the framework, including reporting
requirements, and to resolve policy inconsistencies and disagreements; and
(3) determine from agency EEO and human capital managers what additional
guidance they need, how feedback can be more useful, and what more they
can do to help agencies provide workplaces that are fair, equitable, and
inclusive.
Because the lack of coordination between EEOC and OPM has been a
long-standing problem, Congress should require EEOC and OPM to include a
joint report to Congress on their progress in implementing our
recommendations as part of their respective annual EEO reporting.
We provided EEOC and OPM a draft of this report for their review and
comment and received written comments from the heads of both agencies.
EEOC and OPM both acknowledged that their collaborative efforts could be
strengthened. However, both took exception to the recommendation related
to exploring opportunities to consolidate and streamline similar
requirements. EEOC and OPM appear to have misinterpreted our conclusions
and recommendations as a call to consolidate EEO requirements into a
single agency, and noted that there were statutory impediments to
streamlining requirements. We are not recommending that oversight for all
EEO matters be consolidated into one agency, but rather that the two
agencies look for opportunities to consolidate requirements and, where
impediments exist, jointly make recommendations to Congress or the
executive branch. We clarified this point in the report. Nonetheless, we
believe that gaining a mutual understanding of each other's authorities,
roles, and responsibilities and determining how those authorities could be
exercised in a collaborative way could provide immediate results in
improving overall government efficiency in oversight. OMB made a similar
recommendation in 2005 to OPM to collaborate with EEOC with respect to
those programs where it shares oversight responsibility with EEOC.
Background
It is government policy that equal opportunity be an integral part of
every aspect of personnel policy and practice in the employment,
development, advancement, and treatment of federal civilian employees.8
Various statutes, regulations, directives, executive orders, and other
executive policies have been put in place over time to form the framework
governing EEO in the federal workplace. This framework, which governs
civil rights and personnel management, places primary responsibility on
federal agencies to provide workplaces that have a culture of fairness,
equity, and inclusiveness free from discrimination. For a further
discussion of the EEO framework, see appendix II.
Within the EEO framework, both EEOC and OPM play important roles in
leadership and oversight of federal agencies. EEOC's mission is to promote
equality of opportunity in the workplace and enforce federal laws
prohibiting employment discrimination in both the private and federal
sectors. In the federal sector, EEOC is responsible for enforcing the
employment discrimination prohibitions under title VII of the Civil Rights
Act of 1964, as amended; the Rehabilitation Act of 1973; the Equal Pay Act
of 1973; and the Age Discrimination in Employment Act of 1967, as
amended. In this regard, EEOC is responsible for establishing procedures
for handling federal employees' allegations of discrimination based on
race, color, religion, gender, national origin, age, or disability, and
providing for the adjudication of complaints and hearing of appeals. In
addition, EEOC establishes requirements and standards for programs to
provide equal employment opportunity; monitors federal agencies'
compliance with EEO laws and procedures; and reviews and assesses the
effectiveness of agencies' programs to promote EEO, including agencies'
efforts to identify and eliminate barriers to equality of employment
opportunity.
OPM's mission is to build a high-quality and diverse federal workforce
based on merit system principles. Under title 5 of the U.S. Code, OPM is
responsible for executing, administering, and enforcing civil service laws
and regulations in the executive branch, including the merit system
principles that require fair and equitable treatment and equal opportunity
and prohibit discrimination in all aspects of federal employment.9
95 U.S.C. S: 1103(a)(5).
Title 5 also requires OPM to assist agencies in their equal opportunity
recruitment program activities and to oversee and evaluate these agency
programs. In carrying out their respective responsibilities, EEOC and OPM
are to carry out oversight of each other, with EEOC reviewing OPM's EEO
programs and OPM assessing human capital practices at EEOC.
Both EEOC and OPM have articulated specific goals and objectives in their
strategic plans to carry out their EEO-related responsibilities. These
goals, while differing in some aspects, share a common theme, which is to
promote policies that contribute to building high-performing organizations
that foster inclusive work cultures. A primary focus for EEOC is to help
agencies identify and eliminate barriers to EEO, while a key focus for OPM
is to assist agencies in creating diverse candidate pools, including
women, minorities, persons with disabilities, and veterans, which can be
used in making appointments to the federal service in executive and
management positions and leadership feeder ranks.
Carrying out the requirements of the EEO framework within federal agencies
is generally shared by human capital and EEO/civil rights offices, with
EEO offices taking the lead in programs EEOC oversees and human capital
offices taking the lead in programs OPM oversees. Individual programs
within the framework, their requirements or standards, and EEOC's and
OPM's responsibilities are shown in table 1.
Table 1: Selected Requirements on Federal Agencies within the EEO
Framework and Central Leadership Agency Oversight Responsibility
Policy Implementation requirements Agency
for federal agencies responsibility
EEOC OPM
Management Directive 715 Develop affirmative X
providing policy guidance employment program plans for
and standards and all employees and applicants
reporting requirements for (title VII) and affirmative
programs required under action program plans for the
section 717 of title VII hiring, placement, and
of the Civil Rights Act of advancement of individuals
1964 and section 501 of with disabilities
the Rehabilitation Act (Rehabilitation Act).
Regulations implementing Conduct a continuing program X
the Federal Equal of recruitment of
Opportunity Recruitment underrepresented
Program authorized by the groups-minorities and
Civil Service Reform Act women-and develop equal
of 1978 opportunity recruiting
plans.
Regulations implementing Have a program and X
the Disabled Veterans affirmative action program
Affirmative Action Program for the recruitment,
authorized by the Vietnam employment, and advancement
Era Veterans' Readjustment of disabled veterans.
Assistance Act of 1974
Notification and Federal Among other things, notify Xb Xc
Employee employees of rights and
Antidiscrimination and protections, provide
Retaliation Act training, and submit annual
reports to Congress and
EEOC.a
Executive Order No. 13163, Develop a plan for X
Increasing the Opportunity increasing the opportunity
for Individuals with for individuals with
Disabilities to Be disabilities to be employed
Employed in the Federal by the federal government.
Government
Executive Order No. 13164, Establish written procedures X
Requiring Federal Agencies for processing requests from
to Establish Procedures to individuals with
Facilitate the Provision disabilities for reasonable
of Reasonable accommodation.
Accommodation
Executive Order No. 13171, Have an ongoing program for X
Hispanic Employment in the recruitment and career
Federal Government development of Hispanics in
federal employment,
including developing
recruiting plans.
President's Management Reduce underrepresentation X
Agendad and establish processes to
sustain workforce diversity
in accordance with PMA
scorecard standard.
Human Capital Address human capital X
Accountability and standards, including those
Assessment Frameworke in areas related to
diversity management.
Source: GAO.
aRegulations implementing provisions of the act relating to notification,
training, and annual reporting have not been finalized.
bEEOC receives annual reports agencies submit under title II, Federal
Employee Discrimination and Retaliation, and is responsible for issuing
rules under title III, EEO Complaint Data Disclosure.
cOPM is responsible for regulations implementing title II and for
reporting on best practices for disciplining employees who committed
unlawful discrimination or retaliation.
dThe PMA, a strategy for improving the management and performance of the
federal government, contains five governmentwide goals to improve federal
management and deliver results, including the strategic management of
human capital. For each goal, agency performance in implementing the PMA
is assessed using a scorecard. Among the standards on the scorecard within
the strategic management of human capital goal is how well agencies
address underrepresentation and implement programs to sustain diversity.
eOPM developed the Human Capital Accountability and Assessment Framework,
providing suggested performance elements and measures to guide agencies
toward achieving the PMA human capital standards for success.
Although responsibility for the EEO framework policies is generally
assigned to either EEOC or OPM, similarities in implementation
requirements for federal agencies and the fact that both EEOC and OPM have
jurisdiction over the agencies can result in overlap between programs and
in EEOC's and OPM's oversight responsibilities.
In our survey, we asked EEO and human capital officials about their views
on the requirements within the EEO framework, and about the guidance and
feedback on these requirements they get from the central leadership
agencies. (See app. III for excerpts from the survey questionnaire and
responses to the excerpted questions.) For the purposes of our report, we
defined EEO, affirmative employment, and workforce diversity as shown in
figure 1.
Figure 1: Definitions of EEO, Affirmative Employment, and Workforce
Diversity
EEO is the policy embodied in law that requires that employment actions be
free from prohibited discrimination, including discrimination on the basis
of race, color, religion, gender, national origin, age, disability, and
retaliation for filing discrimination claims or other protected activity.
Affirmative employment is designed to identify and eliminate
discriminatory practices and policies and to ensure EEO. In the federal
sector, affirmative employment includes actions by federal
departments/agencies to identify and eliminate barriers to EEO in
accordance with the policies of EEOC and OPM.
Workforce diversity indicates the extent to which people in a workforce
are similar and different from one another, including characteristics
protected by law, that is, race, ethnicity, disability, and gender.a
Workforce diversity may also take into account other factors, such as
background, education, work roles, and personality.b
Source: GAO.
aSee GAO, Diversity Management: Expert-Identified Leading Practices and
Agency Examples, GAO-05-90 (Washington, D.C.: Jan. 14, 2005), for a
discussion on managing workforce diversity.
bEEOC's roles and responsibilities are limited in scope to those groups
protected from discrimination by statute.
We provided the five central leadership agencies-EEOC, OPM, the Office of
Special Counsel (OSC), the Merit Systems Protection Board (MSPB), and the
Federal Labor Relations Authority (FLRA)-a draft of the survey instrument,
considered their comments, and made appropriate changes before sending it
to the federal EEO and human capital officials.10
Survey Respondents View Certain Requirements as Contributing Most to EEO
but See Redundancies and Differing Reporting Requirements as Creating
Administrative Burden
In answering our questions about the extent to which policies and
requirements contributed to ensuring EEO and achieving affirmative
employment and workforce diversity at their agencies, survey respondents
said that some requirements contributed more while others had a limited
impact. Respondents identified Management Directive (MD) 715, Executive
Order No. 13164, and the PMA scorecard standard11 as making a greater
contribution toward ensuring EEO in their workplaces, while the impact of
other policies, such as FEORP, Executive Order No. 13171, and the Disabled
Veterans Affirmative Action Program (DVAAP), was more limited. (As we
later discuss, a substantial number of respondents said several of these
programs had very similar or redundant elements.) Although survey
respondents expressed their views on the extent to which the different
requirements contribute to EEO and workforce diversity at their agencies,
we did not evaluate the value of these requirements toward meeting agency
EEO objectives. Table 2 shows the survey results.
Table 2: Survey Respondents' Answers regarding the Extent to Which Various
Policies and Requirements Contribute to Ensuring EEO and Achieving
Affirmative Employment and Workforce Diversity in Their Agencies (Number
and Percentage of Respondents)
Policy/requirement Great/very Moderate Some, Don't
great extent extent little or know
no extent
MD-715 (n=79) 20 (25.2%) 21 (26.6%) 22 (27.9%) 16
(20.3%)
FEORP (n=80) 12 (15.0%) 20 (25.0%) 46 (57.5%) 2 (2.5%)
DVAAP (n=80) 11 (13.8%) 20 (25.0%) 43 (53.8%) 6 (7.5%)
No FEAR Act (n=79) 8 (10.1%) 25 (31.7%) 37 (46.8%) 9 (11.4%)
Executive Order No. 13163, 15 (18.8%) 27 (33.8%) 34 (42.5%) 4 (5.0%)
employment of persons with
disabilities (n=80)
Executive Order No. 13164, 32 (40.0%) 27 (33.8%) 19 (23.8%) 2 (2.5%)
providing reasonable
accommodation for employees
with disabilities (n=80)
Executive Order No. 13171, 14 (17.7%) 21 (26.6%) 39 (49.4%) 5 (6.3%)
Hispanic employment
initiative (n=79)
PMA scorecard standard on 19 (23.8%) 18 (22.5%) 24 (30.0%) 19
underrepresentation and (23.8%)
workforce diversity (n=80)
HCAAF performance standards 12 (15.2%) 19 (24.1%) 25 (31.7%) 23
(n=79) (29.1%)
Source: GAO survey results.
Because the integration of EEO into human capital is an integral part of
government policy, we asked survey respondents the extent to which these
policies and requirements influence human capital policies, practices, and
strategic planning. We received responses similar to those for the
question discussed above.
In explaining why the PMA scorecard standard positively influenced their
agencies' human capital policies, practices, and strategic planning, a
number of officials we interviewed noted that the PMA scorecard had given
greater visibility to the government's requirements in dealing with
underrepresentation and workforce diversity. These officials shared the
view that agency performance in meeting deliverables and its direct
connection to the "green (success)-yellow (mixed results)-red
(unsatisfactory)" ratings given quarterly, is of major importance to
agency management because of how the PMA performance review can affect
agency budgets. These ratings are based on OPM's and OMB's assessments.
Some officials' interview comments concerning the PMA are shown in figure
2.
Figure 2: Selected Comments from Interviews with EEO Officials about the
PMA Scorecard Standard
... the PMA is a driving force on diversity issues, supplanting any
influence the FEORP and [EEOC] reports had ... there is no real
accountability to EEOC for the [affirmative employment program] while
there is a definite "hammer" with the PMA. Director of management
services, and director of EEO, cabinet department
... top federal agency and departmental management [are] not going to pay
attention to issues outside their usual interests, such as EEO/diversity,
without an outside agency coming down on them. The PMA and its enforcement
by OMB and OPM in the human capital sector definitely seems to be having
this effect ... Attorney-advisor, office of civil rights, cabinet
department
Source: GAO.
Survey Respondents View Some Policies and Programs as Having Very Similar
or Redundant Requirements
The statutes, regulations, and policies that form the framework for EEO in
the federal government establish a number of requirements that agencies
are to carry out or standards they are expected to meet. Elements of the
requirements that EEOC and OPM oversee or in fact established have certain
common aspects, including measuring representation of or participation by
race, ethnic, and gender groups and developing plans to address barriers
to equal opportunity. Although we asked for the survey respondents' views
on the extent to which requirements were very similar or redundant and we
made observations about where some similarities and redundancies exist, we
did not evaluate the degree of similarity or redundancy among these
requirements. Survey respondents also commented about the need for EEOC
and OPM to better coordinate, with some commenting in particular about the
need for the two agencies to work together to eliminate redundant and
inconsistent requirements. We discuss the extent to which EEOC and OPM
coordinate later in this report.
EEO and human capital officials surveyed were asked to identify the extent
to which the elements making up the requirements of certain policies
relating to the EEO framework were very similar or redundant with the
requirements of at least one other policy, for example, whether any two
policy requirements contained common features, such as developing plans,
assessing progress, and preparing reports. To obtain more specific views,
we asked respondents to select from a list two specific requirements that
they believed were redundant; they also had the option of selecting none
or responding that they did not know. Of the 81 respondents to this
question, 57 (70.4 percent) said that at least one of the requirements was
very similar or redundant to at least one other requirement. FEORP, for
which OPM issued implementing regulations, was identified by 41 (50.6
percent) respondents as having very similar or redundant elements with the
requirements of another policy; 30 (37 percent) said that EEOC's MD-715
was very similar or redundant with another policy; and 19 (23.5 percent)
said this of Executive Order No. 13171, Hispanic Employment in the Federal
Government,12 which OPM oversees. When asked specifically to identify two
requirements that were very similar to or redundant with each other, 21
(25.9 percent) respondents cited FEORP and MD-715, while another 15
respondents (18.5 percent) cited FEORP and Executive Order No. 13171.
A number of human capital and EEO officials with whom we spoke as well as
survey respondents (who, in a few cases, we had previously interviewed)
said that the overlap in MD-715, FEORP, and Executive Order No. 13171
requirements resulted in duplication of effort. As we reported in our
April 2005 report on the EEO framework, both EEOC, under MD-715, and OPM,
under FEORP and Executive Order No. 13171, require that agencies analyze
their workforces to determine the representation of employee groups
compared to their representation in the civilian labor force (CLF),
identify barriers where underrepresentation exists, and develop steps to
address barriers.13 In addition, agencies are also to report on the status
and progress of their efforts annually. Thus, for example, an agency may
have to submit similar information on its recruitment efforts, in
different formats and at different times of the year, to EEOC for its
MD-715 report and to OPM for reports required under FEORP and Executive
Order No. 13171.
With regard to redundancies, OPM said that it views EEOC's MD-715 as
constituting guidance and not as placing requirements on agencies, adding
that the policy reflected in guidance can neither overrule nor stand in
place of statutory requirements, such as those under FEORP, or the
requirements set forth in executive orders pursuant to statutory
delegations. EEOC disagreed, however, pointing out that it issued MD-715,
articulating agency responsibilities, pursuant to its authority under law
and executive order.14
Many survey respondents reported redundancies in policies and requirements
concerning persons with disabilities. There are common elements in EEOC's
and OPM's roles in the area of employees with disabilities, which are
reflected in requirements in EEOC's MD-715 relating to affirmative action
plan requirements in Section 501 of the Rehabilitation Act, and Executive
Order No. 13163, Increasing the Opportunity for Individuals with
Disabilities to Be Employed in the Federal Government,15 and DVAAP, both
administered by OPM. Of 81 respondents, 54 (66.7 percent) said there were
redundancies among these requirements concerning persons with
disabilities. For example, 39 (48.2 percent) said MD-715 requirements for
persons with disabilities had very similar or redundant elements with at
least one other requirement, and 36 (44.4 percent) cited Executive Order
No. 13163. In identifying which two specific requirements had the most
redundancies, 24 (29.6 percent) respondents cited MD-715 and Executive
Order No. 13163.
EEO and human capital officials' concerns about redundant requirements
mirror the findings of a 1993 report of the National Partnership for
Reinventing Government (NPR) (formerly the National Performance Review),
From Red Tape to Results: Creating a Government That Works Better and
Costs Less.16 The report said that an inordinate amount of resources are
devoted to preparing duplicative reports and recommended that reporting
requirements for agencies be blended into one comprehensive assessment of
EEO and affirmative employment efforts, including specific actions needed
to eradicate barriers and increase representation. The report said that
such action would help reduce administrative costs and allow agencies to
spend more time on results rather than paper processes. At the time the
NPR report was issued,
primary elements of the EEO framework were more limited, and included
EEOC's MD-713 (on persons with disabilities)17 and MD-714 (on minorities
and women),18 as well as OPM's FEORP requirements. Since then, additional
parts of the policy framework have been put into place, including
Executive Order Nos. 13163, 13164, and 13171; the Notification and Federal
Employee Antidiscrimination and Retaliation (No FEAR) Act; MD-715 (which
superseded MD-713 and MD-714); and the PMA and Human Capital
Accountability and Assessment Framework (HCAAF) standards. These additions
to the framework, and to EEOC's and OPM's responsibilities, have added to
the redundancy and administrative burden.
Federal EEO and human capital officials, in responding to our survey and
in the course of our interviews, provided specific comments about some of
the policies and requirements administered by EEOC and OPM. See figure 3
for some of these comments.
Figure 3: Selected Comments on Similarities and Redundancies in
EEO-Related Programs and Requirements
... there is overlap between the FEORP and [EEOC requirements] as both
examine workforce diversity and speak to recruitment and outreach
strategies ... There is other overlap between the [EEOC] requirements for
persons with disabilities and the executive order dealing with persons
with disabilities ... it would be better for EEOC and OPM to have one
centralized report that ... would eliminate overlap and inconsistency.
Director of management services, and director of EEO, cabinet department
There is significant overlap in program areas of OPM and EEO[C]
particularly in affirmative action, reasonable accommodation, diversity,
and equal employment opportunity. Since these programs/initiatives share
many of the same goals and objectives, closer coordination to eliminate
duplicative reporting and to maximize ideas, guidance, and resources would
be beneficial. Director of human resources, independent agency
[EEOC and OPM should] resolve FEORP and MD-715 into one program. Assistant
secretary for EEO, cabinet department
... someone needs to examine the requirements from Alpha to Omega to
determine what is being asked for and, because many of the reports are
asking for the same things, determine if there can be a consolidation of
the requirements into two or three reports ... FEORP is one report that
can go away. Director of human resources, cabinet department
Source: GAO.
Survey Respondents Say Different Reporting Policies Create Burdens for
Their Agencies
Human capital and EEO officials reported they experience additional
administrative burden because EEOC and OPM have different policies in some
areas with regard to workforce data collection or analysis. These areas
include categorization of data by occupation and race and ethnicity and
collection of data on job applicants.
Historically, both EEOC and OPM categorized data on an agency's workforce
according to six occupational categories: professional, administrative,
technical, clerical, other white-collar, and blue-collar (PATCOB). In
2004, EEOC changed to nine occupational categories: officials and
managers, professionals, technicians, sales, office and clerical,
craft workers, operatives, laborers, and service workers.19 According to
EEOC, it made the change because the PATCOB categories were outdated and
too imprecise to allow the level of analysis desired, and because EEOC
uses the nine categories for private sector workforce analysis. OPM
contends that the PATCOB categories continue to support its governmentwide
occupation classification responsibility and provide more meaningful
crosswalks to national workforce data. OPM also said the nine occupational
categories EEOC uses are too broad for meaningful analysis because they
combine too many occupations within one category. Further, OPM said that
the crosswalk now used by EEOC to classify federal occupations into one of
the nine categories is inaccurate and incomplete in some areas.
Under EEOC's previous reporting requirements using the PATCOB categories,
agencies could download data from the government's Central Personnel Data
File (CPDF), which OPM maintains, to fulfill EEOC analysis and reporting
requirements. With the new occupational categories, agencies must now
develop computer programs to follow a crosswalk that classifies federal
occupations into one of the nine categories. This burden may be lessened
in the future. According to EEOC and OPM officials, the two agencies have
had discussions about occupational categories in relation to OPM's new
Enterprise Human Resources Integration (EHRI) system, which will replace
CPDF as the central source for federal workforce data and will afford
agencies the opportunity, for a fee, to perform complex workforce analysis
and planning tasks and maintain personnel records in electronic form. At
the time of our review, EEOC and OPM officials said that a statement of
work has been proposed that if approved and put in place could enable EEOC
and other agencies to use EHRI for purposes related to MD-715 reporting.
However, OPM also noted that there were separate policy and legal
implications that must be resolved. In addition, according to OPM, while
much of the information sought under MD-715 is contained within the EHRI
database, EHRI will not be able to provide data on applicants,
non-appropriated fund employees, or CLF comparisons.
Some EEO and human capital officials commented that another difference
between EEOC and OPM requirements that caused increased administrative
burden is how workforce data were reported by race and ethnicity
categories. In 1997, OMB issued revisions to standards for the
classification of federal data on race and ethnicity which were to be
adopted as soon as possible but no later than January 1, 2003.20 In the
instructions for MD-715, issued in March 2004, EEOC required agencies to
report data to EEOC under the minimum categories designated by OMB under
the revised standards for data on race and ethnicity. EEOC encouraged
agencies to collect data on race and national origin in a more detailed
fashion as required in OMB's revised standards (for example, by allowing
employees to identify themselves as members of more than one race) so long
as the data can be aggregated into the categories EEOC required under
MD-715. EEOC required agencies to resurvey those employees who had
previously identified themselves as Asian/Pacific Islander in order to
break out those employees into the two new categories (Asians and Native
Hawaiian or Other Pacific Islander). EEOC also required agencies to give
all new hires and those for whom the agency did not have race or national
origin information, the opportunity to self-identify their race and
national origin, including the ability to identify their membership in
more than one race. OPM updated the CPDF to conform to OMB's revised
standards in January 2006. OPM requires data from agencies in accordance
with the OMB format for new employees only; it does not require agencies
to resurvey their workforces because it has no authority to do so,
according to OPM officials.
Another area where a policy disagreement arose that some officials said
presents challenges to agencies involved gathering and analyzing
applicant-flow data. EEOC, in MD-715, requires agencies to analyze data on
race, national origin, gender, and disabilities voluntarily provided by
job applicants in order to begin to identify areas where barriers may be
excluding certain groups. OPM takes the position that agencies are not
required or authorized to collect race, national origin, gender, and age
information on applicants. In the past, OPM said it opposed collecting
race and national origin data from job applicants because collecting such
data would be costly, ineffective, and a reporting burden. According to
OPM, agencies collecting applicant data could involve significant legal
risks-such collection could be construed as pressuring agencies to engage
in preferential treatment in order to achieve "results" in terms of
workforce composition, as suggested by certain recent discrimination
cases.21 EEOC defends the appropriateness of collecting and analyzing
applicant data. In commenting on a draft of this report, EEOC said that
federal agencies are bound by the Uniform Guidelines on Employee Selection
Procedures (issued jointly by EEOC, the Civil Service Commission (OPM's
predecessor), and the Departments of Justice and Labor), which requires
employers to request racial and ethnic data from applicants and analyze
applicant-flow data. Because of OPM's position that agencies are not
required or authorized to collect racial or national origin data from
applicants, EEOC officials told us that EEOC has not offered official
guidance to agencies concerning applicant-flow data collection, although
EEOC has given informal verbal guidance on request.
Figure 4 shows some officials' comments on reporting requirements.
Figure 4: Selected Comments on EEOC and OPM Reporting Requirements
... the reports [EEOC and OPM] require are, in many cases, redundant and
should be streamlined. Assistant secretary for EEO, cabinet department
... there are redundant reporting requirements in the FEORP and in
[reports required by EEOC] ... it does not make sense to have two agencies
collecting the same information on the same issues. Deputy assistant
secretary for human resources, cabinet department
EEOC and OPM gather [the] same information in conflicting formats. There
should be more of a team approach when requesting information from
agencies.[This] becomes a problem when we are tasked to provide info for a
new requirement (such as MD 715) and reporting needs are so different.
Director, office of EEO, cabinet department
If these two worked together better, we could make significant progress.
The two agencies use different comparative data. OPM lags in directing
agencies to update data systems to capture RNO/G codes and training
instances. EEO director, component of cabinet department
Source: GAO.
Agencies Are More Satisfied with Guidance and Feedback from EEOC Than with
That from OPM and Believe Both Could Do More
A large majority of survey respondents and officials we interviewed
suggested both EEOC and OPM could do more in their oversight and
leadership roles to ensure EEO in the workplace and achieve workforce
diversity by providing clearer guidance and feedback and by working
together to improve the quality of such guidance.
A majority of agency EEO and human capital officials responding to our
survey said that guidance and feedback from EEOC was useful or very
useful, while less than half said that about guidance and feedback from
OPM.
Officials Believe Both EEOC and OPM Could Do More to Help Agencies with
EEO, Workforce Diversity, and Affirmative Employment
Survey respondents who served as points of contact with the central
leadership agencies-EEOC, OPM, MSPB, OSC, and FLRA-indicated that on
matters concerning EEO, affirmative employment, and workforce diversity
they interacted primarily with EEOC and OPM over the 2 years
leading up to our survey.22 Respondents who had at least some interaction
with EEOC and OPM did not see either agency as particularly helpful in
assisting them in ensuring EEO in the workplace or achieving EEO-related
objectives. While, as discussed below, survey participants found some
usefulness to guidance and feedback from EEOC and OPM, of those having at
least some interaction with these agencies, 27 of 48 respondents (56.3
percent) said that EEOC was of some, little, or no help, and 36 of 45
respondents (80 percent) said the same of OPM. (See table 3.)
Table 3: Survey Respondents' Perceptions of the Extent of Helpfulness of
EEOC and OPM in Ensuring EEO in the Workplace and Achieving Affirmative
Employment or Workforce Diversity (Number and Percentage of Respondents)
Agency Very great Great Moderate Some Little or Don't know/not
no applicable
EEOC 5 (10.4%) 3 (6.3%) 12 (25.0%) 12 15 1 (2.1%)
(n=48) (25.0%) (31.3%)
OPM 0 (0.0%) 1 (2.2%) 6 (13.3%) 15 21 2 (4.4%)
(n=45) (33.3%) (46.7%)
Source: GAO survey results.
The majority of these respondents-37 of 48 (77.1 percent) for EEOC and 29
of 45 (64.4 percent) for OPM-said those agencies should be doing more to
help agencies ensure EEO in the workplace and achieve affirmative
employment or workforce diversity. Some of the officials we interviewed
and survey respondents offered their comments on how EEOC and OPM could do
this. (See fig. 5.)
Figure 5: Selected Comments on How EEOC and OPM Can Do More to Help
Agencies Ensure EEO in the Workplace and Achieve Affirmative Employment or
Workforce Diversity
EEOC and other federal agencies have extensive knowledge and experience in
many areas that should be shared to rethink strategic approaches to
equality of opportunity and diversity. From my own experience, it would be
helpful for EEOC to consider developing proactive, preventative guidances.
MD-715 is a good start, but more comprehensive, focused guidance that
addresses one major area annually, such as measuring accountability
through qualitative benchmarks is needed. I believe that such guidance
would help to create an environment for effective and lasting positive
accomplishments. EEOC should be held accountable for developing such
guidance. EEO director, independent agency
It would be helpful to get more examples from OPM about how other agencies
are doing, as well as more information about federal human resources
contractors. Associate director for human capital planning, cabinet
department
[OPM should do] more on sharing benchmarks/model agencies and their
recruitment/retention efforts ... assistance with identifying effective
recruitment sources, particularly for individuals with disabilities. EEO
officer, component agency of cabinet department
EEOC should do more in-depth training on conducting barrier analyses, more
sharing of model programs, suggestions on ways to improve, and
establishment of benchmarks. EEO official, component of cabinet department
EEOC should work in concert with OPM in developing standardized training
for diversity competencies. Deputy assistant secretary for EEO, cabinet
department
Source: GAO.
Officials' Views on Guidance and Feedback from EEOC and OPM
Although respondents said that EEOC and OPM should be doing more to help
agencies, they did find some usefulness, in varying degrees, in guidance
and feedback from EEOC and OPM. For example, with regard to guidance
concerning EEO, affirmative employment, or workforce diversity, about 79
percent of the respondents who had at least some interaction with EEOC
said that guidance from EEOC personnel was useful or very useful while
about 42 percent of respondents who had at least some interaction with OPM
said that guidance from OPM personnel was useful or very useful. Figure 6
shows survey respondents' perceptions of the usefulness of guidance from
EEOC and OPM.
Figure 6: Survey Respondents' Perceptions of the Usefulness of EEOC and
OPM Guidance on EEO, in Various Forms (Number and Percentage of
Respondents)
With regard to feedback on their agencies' performance or on the contents
of reports submitted under the EEO framework, from 45 to 60 percent of
respondents who had at least some interaction with EEOC said that feedback
from EEOC was useful or very useful, while less than 34 percent of those
respondents who had at least some interaction with OPM said that of
feedback from OPM. Figure 7 shows survey respondents' perceptions on the
usefulness of feedback from EEOC and OPM.
Figure 7: Survey Respondents' Perceptions of the Usefulness of EEOC and
OPM Feedback on Their Department/Agency's Performance or Contents of
Reports or Documents Submitted (Number and Percentage of Respondents)
aMD-713, Affirmative Action for Hiring, Placement, and Advancement of
Individuals with Disabilities, and MD-714, Hiring, Placement, and
Advancement of Minorities and Women, were superseded by MD-715 but were
still operational during the early part of the survey period.
Figure 8 provides selected critical written comments from survey
respondents and EEO and human capital officials we interviewed. These
comments provide insight about the limitations of the guidance and
feedback from EEOC and OPM.
Figure 8: Selected Comments on EEOC and OPM Guidance and Feedback
OPM has not articulated a lot of its guidance and seems to have a
difficult time explaining the guidance that it does have. OPM does not
provide feedback on the FEORP submissions. Acting director of workforce
planning, employment and development, cabinet department
The guidance in MD-715 does not go far enough to assist agencies. EEO
director, component of cabinet department
[We] have always been able to get support from EEOC; it is a very positive
relationship. [T]here is not much guidance there, but [we] receive annual
updates and the provision of Title VII training to managers. [An agency
EEO official] interfaces regularly with [EEOC staff]. Assistant director
for affirmative employment and diversity, cabinet department
[T]he lack of accountability to OPM with regard to the FEORP is evidenced
by the fact that the 2003 FEORP was not submitted (due to staff
limitations and giving priority to the PMA) yet [we] did not hear from
OPM. [We have no] knowledge of OPM providing feedback on the FEORP or
other reports that are submitted to OPM. Director of human resources,
cabinet department
EEOC provides limited feedback and provides only general advice ... As for
what to do about how to increase the representation of persons with
targeted disabilities, EEOC provided general advice but no specific tips.
EEO director, cabinet department
[We] have never gotten feedback from OPM on FEORP or DVAAP submissions.
[We] did get feedback from EEOC on the [affirmative employment] submission
back in 2001, as a new [affirmative employment] plan was being developed
at about that time. Never in any of its feedback on [affirmative
employment] did EEOC discuss resources, even though the regulations and
the new and old EEOC directives do call for sufficient resources to
maintain an [affirmative employment] program. Office of civil rights
director, cabinet department
[A senior OPM official] has been interested in [our] work [on the Hispanic
Employment Plan] and seemed positive about it, though there has been no
substantial feedback from OPM. Hispanic program manager, cabinet
department
EEOC is always in a "we don't have staff mode." EEOC provides some
feedback on reasonable accommodation issues. Some subagencies may get
feedback on some things ... and others do not. It would have been helpful
if everyone had gotten their feedback at once. EEO program director,
cabinet department
Source: GAO.
Limited Coordination between EEOC and OPM Limits Efficiency
Respondents to our survey said that more coordination between EEOC and OPM
would benefit their agencies, and would not only help reduce or avoid
duplication of effort but could also foster better cooperation between EEO
and human capital offices within agencies. The overlapping
responsibilities that EEOC and OPM have under the EEO framework create a
need and opportunity for coordination between the two agencies. However,
we found little coordination or information sharing between EEOC and OPM,
particularly among staff responsible for day-to-day oversight of federal
agencies. A lack of a mutual understanding of one another's authority,
roles, and responsibilities contributes to this limited coordination,
which in turn can result in lost opportunity to realize consistency,
efficiency, and value in EEO policy making and oversight and in making EEO
integral to human capital management.
EEO and Human Capital Officials Said That EEOC-OPM Coordination Would
Benefit Their Agencies
In our survey of human capital and EEO managers at 45 federal agencies, we
found a strongly and widely expressed view that more coordination between
EEOC and OPM would help their agencies. Specifically, we asked the
following question concerning coordination between the five central
leadership agencies:
Of the 80 EEO and human capital officials who responded to the survey, 70
(86 percent) specifically identified EEOC and OPM.
One survey respondent in particular, the chief human capital officer of a
cabinet department, noted the potential benefits of EEOC/OPM cooperation
on the extent of cooperation between the human capital and EEO staffs
within line federal agencies:
Another respondent, the EEO director of a federal commission, said the
following:
The benefits of better coordination within agencies were highlighted by an
EEOC official, who stated that review of barrier analysis in reports
submitted under MD-715 showed that the highest quality analysis had come
from agencies where there was more coordination between human capital and
EEO staffs.
Government Policy Has Recognized the Importance of Coordination in
Carrying Out EEO; Coordination between EEOC and OPM Is Good Management
For nearly 30 years, government policy has recognized the importance of a
coordinated effort in carrying out federal actions to ensure EEO. For
example, under the FEORP regulations,23 OPM provides that it will
coordinate with EEOC on activities to implement equal opportunity
recruitment programs under FEORP, consistent with law; 5 U.S.C. S: 7201,
the Reorganization Plan No. 1 of 1978, 24 and Executive Order No. 12067,
Providing for Coordination of Federal Equal Opportunity Programs.25 The
reorganization plan and the executive order gave EEOC responsibility for
promoting efficiency and eliminating conflict, competition, duplication,
and inconsistency in the implementation of EEO requirements, and provided
coordination principles for federal departments and agencies to follow in
enforcing EEO requirements. Coordination of federal EEO efforts is also
guided by EEOC regulation.26
Additions to the EEO framework changing EEOC's and OPM's responsibilities
since 1978 have made adherence to the underlying principle of coordination
between agencies with overlapping responsibilities even more necessary. We
have reported that the lack of coordination between federal agencies with
overlapping responsibilities creates a situation wherein scarce funds are
wasted, program customers are confused and frustrated, and the overall
effectiveness of the effort is
limited.27 Most recently, in October 2005, we reported that agencies with
overlapping responsibilities can enhance and sustain their collaborative
efforts and produce more public value by engaging in certain practices,
such as defining and articulating a common outcome; agreeing upon agency
roles and responsibilities, including leadership; and establishing
compatible policies, procedures, and other means to operate across agency
boundaries.28 Clearly, these principles apply to EEOC's and OPM's roles
within the EEO framework.
The importance of collaboration between EEOC and OPM was recognized over a
decade ago by the NPR in its 1993 report From Red Tape to Results:
Creating a Government That Works Better and Costs Less.29 It stated the
following:
The NPR suggested a number of actions, which could be implemented
administratively or by presidential order, which it believed would
"decrease duplicated efforts and redundancy... and foster coordinated,
governmentwide commitment to creating, implementing, and accomplishing
equal opportunity and affirmative employment goals." These included
establishing an Interagency Equal Employment Opportunity and Affirmative
Employment Steering Group under the joint chair of EEOC and OPM, and
combining all equal opportunity and affirmative employment reports into
one comprehensive assessment of the total workforce EEO/affirmative
employment data. The report said that implementing the actions would
require ongoing commitment and coordination between EEOC and OPM.
Coordination between EEOC and OPM Is Limited, Particularly with Regard to
Oversight
Lack of coordination or information sharing was particularly evident
between the persons at EEOC and OPM who do the day-to-day work of
overseeing EEO at federal agencies. Officials at EEOC told us they do not
review agency FEORP reports, and some of those responsible for oversight
were not familiar with the FEORP requirements. Regarding their on-site
reviews, EEOC officials told us that they were generally unaware of OPM's
approach to oversight, including the use of HCAAF, and that they do not
coordinate with OPM staff who may be doing or have done similar on-site
audits at the same agencies nor do they regularly receive or review
material from those OPM audits.
In discussions with OPM staff, we learned that staff engaged in agency
oversight do not make use of agency reports to EEOC, nor do they consult
EEOC in assessing the element of the PMA scorecard that deals with
reducing underrepresentation and sustaining diversity. This occurred even
though OPM acknowledged overlap in its Oversight and Effectiveness
Evaluation Handbook for its Merit Systems Compliance Program, which was
used for staff guidance before being withdrawn in 2003. Although no longer
in use, OPM's stated premise in the handbook that its enforcement and
evaluation responsibilities coincide to a large extent with EEOC
responsibilities because EEO is integral to personnel management and to
many of the regulations that OPM administers remains valid.
In a 2005 assessment of OPM's Merit Systems Compliance Program, OMB also
found a need for OPM to improve its coordination with EEOC. OMB made the
assessment using its Program Assessment Rating Tool (PART).30 OMB reported
it found no evidence that OPM benchmarks its activities against similar
efforts, such as those at EEOC. OMB indicated that although EEOC has the
statutory responsibility to coordinate EEO efforts, OPM should seek
opportunities for collaboration with EEOC in order to improve overall
government efficiency in the area of compliance reviews. OMB noted that
although OPM indicated that it was collaborating with EEOC, OPM provided
no documentary evidence of any collaboration. OMB recommended that OPM
collaborate with EEOC on activities that overlap and further recommended
that there be a regular/formal working relationship between the two
agencies.
In addition, OPM, in preparing the annual FEORP report to Congress, does
not consult with EEOC, as EEOC guidelines to OPM regulations indicate it
should.31 In their discussions with us, some OPM officials responsible for
oversight were either (1) unaware of EEOC's affirmative employment program
requirements, EEOC's oversight of federal agencies, or both or (2)
mistakenly believed that EEOC's authority was limited to dealing with
violations of title VII of the Civil Rights Act, in particular,
discrimination complaints.
We also found that EEOC and OPM did not, for the most part, coordinate EEO
information and guidance on their respective Web sites. While each Web
site contains information about each agency's policies, programs, and
operations, and both sites contain pages referring to policy and program
areas where both agencies have responsibilities, the EEOC Web site had no
links to relevant OPM Web pages, and OPM's links to EEOC's Web-based
information were not specific, which limited their value. For example, see
the following:
o EEOC's Web page entitled "How Other Civil Rights Agencies Address EEO
Issues" neither mentioned OPM nor contained any links to the OPM Web site.
o Neither agency Web site had links to the other agency's Web site
regarding relevant policies and procedures for persons with disabilities.
o The OPM Web site has an online diversity guide for federal agencies,
which covers the demographic and legal framework and offers guidance for
building a diverse workforce. In the discussion of title VII as part of
the framework, the link provided by OPM is only to EEOC's home page and
not to more specific guidance, such as EEOC's Web page entitled "Reference
and Research," which lists applicable guidance on federal-sector EEO that
would potentially be more relevant and helpful.
After we brought this issue to its attention, EEOC undertook an effort,
which was still under way at the time of our review, to provide links to
relevant information on OPM's Web site. OPM said that because Web pages
are subject to change, it is more practical to send a reader to a home
page rather than to subject-specific information. However, while the
content of Web pages may change, we believe that the subject matter of the
pages is less likely to do so.
EEOC officials acknowledged a need for better coordination between the two
agencies. EEOC's Strategic Plan for Fiscal Years 2004-2009 states that the
agency "will reinvigorate its leadership of equal employment policies and
programs" in accordance with Executive Order No. 12067. However, we noted
that the plan does not contain any reference to coordinating with OPM.
Senior EEOC officials believed there was a lack of awareness on OPM's part
of EEOC's role beyond complaints management. EEOC officials said that
there is a need for a formal coordination mechanism. EEOC officials also
suggested that EEOC and OPM conduct joint oversight visits of agencies.
They also suggested that allowing EEOC to become a member of the Chief
Human Capital Officers Council, which the OPM Director chairs, may present
an opportunity for closer coordination of EEO and human capital
management.
OPM officials, on the other hand, did not think that a formal coordination
mechanism was necessary. A senior official in OPM's General Counsel's
office told us that (1) there is a need to clarify "boundaries" and that
there has probably been some confusion between the OPM and EEOC program
and reporting requirements, (2) some EEOC requirements under MD-715
encroach on OPM's authority and responsibility, and (3) OPM has broad
authority based on title 5 of the U.S. Code and its placement of
responsibility on OPM to enforce the merit system principles. OPM made its
concerns known to EEOC in its comments on a draft of MD-715. For example,
with regard to the "Model Agency Title VII and Rehabilitation Act
Programs" under MD-715, OPM questioned EEOC's authority to tell agencies
how to organize their internal structures. OPM also commented that it was
unclear whether or how plans for employing persons with disabilities under
MD-715 differ from the plans agencies are required to create and submit to
OPM under Executive Order No. 13163. According to an official from the
General Counsel's Office, EEOC had not been responsive to OPM's concerns.
Conclusions
Because they both have roles and responsibilities in federal workplace EEO
under the federal statutory and regulatory framework, it is incumbent upon
EEOC and OPM to avoid unnecessary conflict, competition, duplication, and
inconsistency in policies and requirements. In order to carry out EEO
framework requirements efficiently and effectively, EEOC and OPM need to
o resolve their policy disagreements;
o take a broad and comprehensive view of their overlapping
responsibilities;
o engage in serious and substantial efforts to gain a mutual understanding
of each other's authorities, roles, and responsibilities under the federal
workplace EEO framework;
o determine how those authorities, roles, and responsibilities can be
exercised in a collaborative way; and
o enhance their communication and coordination.
EEOC and OPM together need to examine the collective requirements of the
EEO framework and determine where and how requirements can be streamlined
and consolidated in a way that is consistent with the government's policy
goals, supports their respective missions and oversight responsibilities,
and reduces administrative burden. In doing so, EEOC and OPM need to
consider the judgments that survey respondents made about the value of the
different requirements in contributing to their EEO and workforce
diversity objectives, and the redundancies they identified that add to
their administrative burden.
Besides increasing program administration effectiveness and public value,
better coordination between EEOC and OPM could, at the agency level,
foster greater involvement between EEO offices and their human capital
counterparts in the development of their agencies' human capital plans and
policies. In addition to working together on these matters, EEOC and OPM
need to work to make their guidance and feedback more useful to federal
agencies. Because of the long-standing nature of this lack of effective
coordination, additional congressional oversight is necessary to help
ensure that the two agencies work together meaningfully. As EEOC and OPM
already report annually to Congress on federal workforce EEO, reporting on
steps they have taken to improve coordination would facilitate
congressional oversight.
Recommendations for Executive Action
To resolve the issues noted in our report, we recommend that the Chair of
EEOC and the Director of OPM take the following five actions:
o Develop means to communicate and coordinate on a continuing basis,
establish collaboration protocols, and work to resolve their disagreements
to the maximum extent possible concerning their respective
responsibilities in developing policy, providing guidance, and exercising
oversight under the EEO framework for the federal workplace.
o Explore opportunities to consolidate and streamline similar and
redundant requirements and resolve inconsistencies within the EEO
framework, including reporting requirements, in a manner that could lead
to a single report to fulfill the needs of both EEOC and OPM, particularly
related to requirements under MD-715 and FEORP. Where both EEOC and OPM
believe that a statute or an executive order is an impediment to
streamlining or resolving inconsistencies, the agencies could jointly
recommend appropriate action to Congress or the President.
o Work together to improve their collective guidance, feedback, and
assistance to other agencies on EEO.
o Determine from agency-level EEO and human capital managers what
additional guidance they need in carrying out their responsibilities, how
to make their feedback more useful, and what more EEOC and OPM can do to
help agencies to ensure EEO in the workplace and achieve workforce
diversity objectives.
o Work together to convene regular meetings of senior federal workplace
EEO/civil rights officials and chief human capital officers in order to
further integrate EEO and human capital.
Examples of how these recommendations could be implemented include (but
are not limited to) the following:
o regularly exchanging data from reports submitted by agencies to EEOC and
OPM;
o adopting a common format for reports to EEOC under MD-715 and reports to
OPM under FEORP;
o resolving policy disagreements regarding the collection and use of
applicant data;
o collaborating to help ensure that EHRI can support agencies in meeting
both EEOC and OPM reporting requirements;
o regularly meeting and exchanging information between EEOC and OPM staff
performing oversight of the same agency;
o identifying opportunities for joint reviews of an agency's EEO and
workforce diversity efforts;
o establishing an "e-diversity" Web page created and maintained jointly by
EEOC and OPM; and
o meeting jointly with federal agency EEO and human capital managers
during on-site visits.
Matter for Congressional Consideration
The Congress should require EEOC, in its Annual Report on the Federal
Workforce, and OPM, in its annual FEORP report, to include a joint report
of actions they have taken or plan to take to (1) increase coordination
and communication with each other, (2) consolidate and streamline like
requirements of the EEO framework and resolve inconsistencies, and (3)
improve guidance and feedback to agencies.
Agency Comments and Our Evaluation
We provided a draft of this report to the Chair of EEOC and to the
Director of OPM for their review and comment. We received written comments
from both agencies, which are reprinted in appendixes V and VI,
respectively. In commenting on our recommendation that EEOC and OPM
develop means to communicate, collaborate, and coordinate on a continuing
basis, EEOC stated that it did not disagree that it and OPM could further
strengthen their collaborative efforts. While OPM also agreed that there
is room for improvement, and that it would reinstate the practice of
consulting with EEOC as it prepares the annual FEORP reports, it believed
that with respect to other matters, a more appropriate approach was to
continue to coordinate on an as-needed basis and that a requirement for
formal coordination would add a layer of complexity to an already complex
situation. While we are sensitive to the need to limit unnecessary
complexity, as was evident from our survey, areas exist where agencies
feel additional administrative burden, in large measure, because OPM and
EEOC have not coordinated their oversight efforts. Gaining a mutual
understanding of each other's authorities, roles, and responsibilities and
determining how those authorities could be exercised collaboratively could
provide immediate results in improving overall government efficiency in
oversight. OMB made a similar recommendation to OPM in 2005 with respect
to those programs where it shares oversight responsibility with EEOC. We
also believe that this collaboration could extend to examining the
potential for jointly conducting on-site reviews and audits in a manner
that would not compromise confidentiality.
EEOC and OPM, in their comments, both seem to have misinterpreted our
conclusions and recommendations, inferring that our intent was to have EEO
oversight functions merged or "folded" into one of the two agencies. This
is not our intention. Our conclusions and recommendations are directed
toward streamlining and consolidating the information-gathering process,
with the analytic and reporting functions remaining separate as they
currently are in each agency.
Both EEOC and OPM stated that they are limited in the steps that they
could take to consolidate or streamline agency reporting requirements
because regulations, executive orders, or statutes give EEOC or OPM sole
responsibility for each program. We agree that statutes and executive
orders place responsibility for administering and reporting on certain
programs with EEOC or OPM, but they do not mandate the method for
collecting information from agencies to carry out the programs. Therefore,
these agencies could develop and distribute a common data collection
instrument that both EEOC and OPM could use to fulfill their respective
responsibilities. We continue to believe that streamlining requirements
and resolving inconsistencies within the EEO framework would reduce
administrative burdens on agencies, thus allowing them to focus more of
their efforts on results. We revised our recommendation to make it clear
that where EEOC and OPM believe that a statute or an executive order is an
impediment to streamlining or resolving inconsistencies, the agencies
could jointly recommend appropriate action to Congress or the President.
OPM expressed concern over use of the phrase "affirmative employment,"
stating that the phrase may be misunderstood as relating to past EEO
programs that have come under criticism and are the subject of ongoing
litigation involving allegations of improper preferential treatment. We
are aware of case law that has addressed federal EEO policies or practices
and the issue of improper preferential treatment, as well as the ongoing
litigation involving allegations of preferential treatment related to
affirmative employment plans, which date back to superseded MDs issued by
EEOC. However, under the federal antidiscrimination statutes, the federal
sector remains obligated to go beyond merely addressing complaints of
alleged discrimination-to take positive (affirmative) steps to ensure EEO.
It is this federal-sector obligation to which we refer when we use the
phrase "affirmative employment." Further, OPM expresses concern about our
reference to "workforce diversity." We do not believe our use of the term
"workforce diversity" is unique or inconsistent with OPM's broad policies
in the area. Rather, as our definition clearly provides, workforce
diversity is a very broad concept and is not limited to recognizing the
differences protected from discrimination by statute.
We provide additional responses to EEOC's comments in appendix V and to
OPM's comments in appendix VI.
We are sending copies of this report to the Chair of EEOC, the Director of
OPM, and other interested parties. Copies will be made available to others
upon request. This report is also available at no charge on GAO's Web site
at http://www.gao.gov.
If you or your staff have any questions concerning this report, please
contact me at (202) 512-9490. Contact points for our Offices of
Congressional Relations and Public Affairs may be found on the last page
of this report. Staff who made major contributions to this report are
listed in appendix VII.
Sincerely yours,
George H. Stalcup Director, Strategic Issues
Appendix I Objectives, Scope, and Methodology
Our objectives were to (1) obtain federal agency equal employment
opportunity (EEO) and human capital managers' views of the requirements
dealing with EEO, affirmative employment, and workforce diversity and the
extent to which the requirements contribute to ensuring EEO, affirmative
employment, and diversity in the workplace; (2) obtain EEO and human
capital managers' views on the guidance and feedback given them by the
Equal Employment Opportunity Commission (EEOC) and the Office of Personnel
Management (OPM) on EEO, affirmative employment, and workforce diversity
issues; and (3) determine how and to what extent EEOC and OPM coordinate
with each other in developing policy, providing guidance, and exercising
oversight of line agencies, as well as obtaining EEO and human capital
managers' views on EEOC and OPM coordination and how it affects their
work.
Our primary method for fulfilling these objectives was to design and
administer a survey to federal agency EEO and human capital managers. We
designed our survey using background information and interview results
from audit work done for our previous report on the EEO framework, issued
in April 2005.1 This included (1) the results of a review of the
statutory, regulatory, and policy framework governing EEO, affirmative
employment, and workforce diversity in the federal government; (2)
interviews with EEO and human capital managers at six selected federal
agencies; and (3) discussions with senior officials at the central
leadership agencies, mostly with officials of EEOC and OPM. The instrument
was designed originally by members of the audit team and a survey
methodologist, and was reviewed internally by survey professionals and by
GAO senior management prior to pretesting. We conducted pretests to ensure
that (1) the questions were clear and unambiguous, (2) terminology was
used correctly, (3) the questionnaire did not place an undue burden on
agency officials, and (4) the survey was comprehensive and unbiased.
We pretested the survey instrument at four federal agencies. At each
agency, we did two pretests, one with EEO staff and one with human capital
staff, for a total of eight pretests. We revised the draft survey based on
the pretest results and subsequently sent a draft of the survey instrument
to each of the central leadership agencies-EEOC, OPM, the Office of
Special Counsel, the Merit Systems Protection Board, and the Federal Labor
Relations Authority-for their review and comment. We then made further
revisions as appropriate based on the comments from these agencies.
We prepared a distribution list for the survey, with the survey recipients
being a senior manager for EEO and diversity (usually the director of the
agency EEO or civil rights office) and a senior human capital manager
(usually the chief human capital officer or director of human resources)
at each federal agency that (1) had a total employment of 500 or more
persons and (2) was required to file an annual affirmative employment
report with EEOC and an annual Federal Equal Opportunity Recruitment
Program report with OPM. (EEOC requires agencies with 500 or more
employees to include in their annual reports a plan for attaining the
essential elements of a model EEO program and a plan to eliminate
identified barriers that impede the full realization of EEO for employees
and applicants.) The final distribution list consisted of 90
recipients-the senior EEO and human capital managers-at 45 agencies.
Together, the 45 agencies employed 97 percent of the nonpostal federal
workforce as of September 30, 2004. The 45 agencies are listed in appendix
IV.
We distributed the survey by e-mail on October 19, 2004, and received
replies until December 10, 2004. We received completed surveys from 83 of
the 90 managers or their delegates, for a return rate of 92.2 percent. We
received completed surveys from both EEO and human capital officials at
38, or 84 percent, of the 45 agencies.
The survey results were keypunched into an electronic database. Because
this was not a sample survey, there are no sampling errors. However, the
practical difficulties of conducting any survey may introduce errors,
commonly referred to as nonsampling errors. For example, difficulties in
how a particular question is interpreted, in the sources of information
that are available to respondents, or in how the data are entered into a
database or were analyzed can introduce unwanted variability into the
survey results. We took steps in the development of the questionnaire, the
data collection, and the data analysis to minimize these nonsampling
errors. We verified the accuracy of a small sample of keypunched records
by comparing them to their corresponding questionnaires, and we corrected
any errors found. Less than 1 percent of the data items we checked had
random keypunch errors that would not have been corrected during data
processing. Analysis programs were also independently verified. The
questions used in this report were asked in the larger survey of this
population. Relevant excerpts from the tabulated results are included in
appendix III (results are presented in percentages, unless otherwise
indicated).
We also invited survey recipients to make written comments on the survey
instrument concerning the issues covered in the survey. We received a
number of such comments, some of which are reproduced in the report. We
did not independently verify the statements made in any of the comments.
As stated above, we relied largely on the survey to address the first two
objectives. In addition, we considered the results of interviews of EEO
and human capital officials at 6 of the 45 agencies. Our response to the
third objective, concerning coordination between EEOC and OPM, was based
partially on the survey results. For this objective, we also used
information that we gathered from senior EEOC and OPM officials and staff
involved in agency oversight during our earlier engagement on the EEO
framework. We discussed this information, including guidance used by EEOC
and OPM staff responsible for agency oversight and knowledge of each
other's policies and oversight practices and the nature and extent of
their coordination, with these officials to ensure that it was still
accurate.
In reporting the survey responses in tabular or graphic form in the
report, in accordance with commonly accepted methodological practice, we
combined two responses (such as "very useful" and "useful") into one
reporting category. In reporting responses to questions concerning the
usefulness of EEOC or OPM feedback, we regarded only "very useful" and
"useful" as positive responses, and regarded a "somewhat useful" response
as not indicating satisfaction with guidance and feedback.
We performed our audit work from May 2004 through February 2006 in
accordance with generally accepted government auditing standards.
Appendix II The Framework for EEO in the Federal Workplace
Statutes, executive orders, and other executive policies form the
framework relating to EEO in the federal workplace.1 This framework, which
governs civil rights and personnel management, places primary
responsibility on federal agencies to provide workplaces that have a
culture of fairness, equity, and inclusiveness free from discrimination.
In 1964, Congress passed the landmark Civil Rights Act, prohibiting
discrimination on the basis of race, color, religion, gender, or national
origin in a number of areas, including employment, housing, voting, and
education. Title VII of the act addresses employment discrimination and
created EEOC.2 When the Civil Rights Act of 1964 was enacted, the
prohibitions against discrimination under title VII did not apply to the
federal government as an employer, although the act did state that it was
the federal government's policy that employment actions be free of
discrimination.3 The government's EEO policy for federal workers had been
addressed in executive orders. For example, Executive Order No. 11478,
issued in 1969, stated the government's policy to (1) provide equal
opportunity in federal employment for all persons; (2) prohibit
discrimination in employment because of race, color, religion, gender, or
national origin; and (3) promote the full realization of EEO through a
continuing affirmative program in each executive department and agency.4
According to the order, the policy of equal opportunity should be an
integral part of every aspect of personnel policy and practice in the
employment, development, advancement, and treatment of federal civilian
employees.
Federal workers and applicants for federal employment received broad
statutory protection against employment discrimination with the passage of
the Equal Employment Opportunity Act of 1972. The hallmark 1972 act
extended to federal workers the protections of title VII of the Civil
Rights Act of 1964, prohibiting discrimination on the basis of race,
color, religion, gender, or national origin in employment matters, such as
recruitment, hiring, wages, promotions, benefits, discipline, discharge,
and layoffs.5 In addition, the 1972 amendments, enacted in part to address
the underrepresentation of minorities and women, require each federal
department and agency to prepare plans to maintain an affirmative program
of EEO. Under the plans, agencies are required to establish training and
education programs designed to provide a maximum opportunity for employees
to advance and perform at their highest potential.
The Rehabilitation Act of 1973 extended employment discrimination
protections to federal employees and applicants for employment with
disabilities. Section 501 of the Rehabilitation Act also requires federal
departments and agencies to prepare affirmative action program plans for
the hiring, placement, and advancement of individuals with disabilities.6
These plans are to be updated annually and describe the extent to which
the special needs of employees with disabilities are being met and the
methods used.
A separate program was established for disabled veterans. The Vietnam Era
Veterans' Readjustment Assistance Act of 1974,7 as amended, requires
agencies to have a separate affirmative action plan for the recruitment,
employment, and advancement of disabled veterans that is to be part of
agencies' efforts under the Rehabilitation Act for individuals with
disabilities. This program is referred to as the Disabled Veterans
Adjustment Assistance Program.
Besides the Rehabilitation Act and the Vietnam Era Veterans' Readjustment
Assistance Act of 1974, two executive orders issued in 2000 are to enhance
EEO in the federal government for persons with disabilities. Executive
Order No. 13163, Increasing the Opportunity for Individuals with
Disabilities to Be Employed in the Federal Government,8 was implemented to
support the goals of the Rehabilitation Act and promote an increase in
federal employment opportunities for persons with disabilities. Under the
order, agencies are required, among other things, to expand outreach
efforts, increase efforts to accommodate disabled individuals, and prepare
plans to increase the employment opportunities for individuals with
disabilities. Executive Order No. 13164, Requiring Federal Agencies to
Establish Procedures to Facilitate the Provision of Reasonable
Accommodation,9 promotes a model federal workplace that provides
reasonable accommodation for individuals with disabilities in the
application process and for employees to perform the essential functions
of a position and enjoy benefits and privileges of employment. Under the
order, agencies are required to establish written procedures for
processing requests for reasonable accommodation.
The Civil Service Reform Act of 1978 (CSRA),10 in overhauling federal
personnel laws, strengthened protections against discrimination and
retaliation in the federal workplace and underscored the government's
commitment to ensuring EEO and to addressing underrepresentation. The CSRA
stated that in order to provide a federal workforce that reflects the
nation's diversity and to improve the quality of federal service, federal
personnel management should be implemented consistent with merit system
principles and free from prohibited personnel practices. The CSRA listed
nine merit system principles,11 the first two of which directly apply to
EEO in promoting a fair, equitable, and inclusive workplace:
o Recruitment should be of qualified individuals from appropriate sources
in an endeavor to achieve a workforce from all segments of society, and
selection and advancement should be determined solely on the basis of
relative ability, knowledge, and skills after fair and open competition
that ensures that all receive equal opportunity.
o All employees and applicants for employment should receive fair and
equitable treatment in all aspects of personnel management without regard
to political affiliation, race, color, religion, national origin, sex,
marital status, age, or handicapping condition, and with proper regard for
their privacy and constitutional rights.
The CSRA also required that personnel actions should be free from
prohibited personnel practices, including discrimination for or against
any employee or applicant for employment based on race, color, religion,
gender, national origin, age, handicapping condition, marital status, or
political affiliation.12
The CSRA further emphasized the government's resolve to ensure EEO and to
address underrepresentation. The act required that executive agencies
conduct a continuing program for recruiting minorities to address
underrepresentation13 of minorities in the federal workplace.14 This
program is referred to as the Federal Equal Opportunity Recruitment
Program.
Executive Order No. 13171, Hispanic Employment in the Federal Government,
issued in 2000, affirmed ongoing policies for equality of opportunity in
federal employment and recommended additional policies to eliminate the
underrepresentation of Hispanics in the federal workforce.15 The order
requires agencies, among other things, to (1) develop recruiting plans for
Hispanics that create a fully diverse workforce and (2) assess and
eliminate any systemic barriers to the effective recruitment and
consideration of Hispanics. The order established the Interagency Task
Force to review best practices, provide advice, assess overall executive
branch progress, and recommend further actions in eliminating the
underrepresentation of Hispanics.
Government policy for dealing with underrepresentation and workforce
diversity is also articulated in the implementation of the President's
Management Agenda (PMA). The PMA, implemented in fiscal year 2002, is a
strategy for improving the management and performance of the federal
government. The PMA contains five governmentwide goals to improve federal
management and deliver results, including the strategic management of
human capital. For each goal, agency performance in implementing the PMA
is assessed using a scorecard. Among the standards on the scorecard within
the strategic management of human capital goal is how well agencies
address underrepresentation and implement programs to sustain diversity.
The human capital standards were developed by OPM and the Office of
Management and Budget, in consultation with the President's Management
Council.
In 2002, acting to address continuing concerns about discrimination and
retaliation in the federal workplace, Congress passed the Notification and
Federal Employee Antidiscrimination and Retaliation (No FEAR) Act.16 The
provisions of the act attempt, among other things, to enhance the
accountability of EEO management and address the causes of and remedies
for workplace conflict that can give rise to discrimination and
retaliation complaints. The No FEAR Act holds agencies financially
accountable for the costs of judgments and settlements in discrimination
cases and also focuses on the policies that agencies have implemented to
hold individuals who unlawfully discriminate against others accountable
for their conduct. Agencies are also to notify and provide training for
their employees on their rights and protections in cases of discrimination
and reprisal. In addition, the No FEAR Act stipulates that agencies are to
submit annual reports that contain discrimination complaint data, an
evaluation of the data to identify underlying causes, and actions planned
or taken to improve their civil rights and complaint programs.17
Furthermore, in enacting this law, Congress expressed its intent that
federal managers should receive adequate training in managing a diverse
workforce, dispute resolution, and other essential communication skills.
Other statutes that protect workers in the private sector also protect
federal workers. The Equal Pay Act of 196318 protects men and women who
perform substantially equal work in the same establishment from sex-based
wage discrimination. The Age Discrimination in Employment Act, 19 as
amended, protects individuals who are 40 years of age or older from
age-based employment discrimination.
Appendix III Excerpts from EEO Leadership Survey Questionnaire and Summary
Results
Appendix IV Agencies from Which Respondents Returned the EEO Leadership Survey
Questionnaire
Agency for International Development Broadcasting Board of Governors
Commodity Futures Trading Commission Corporation for National Service
Court Services and Offender Supervision Agency Defense Contract Audit
Agency Defense Education Activity Defense Finance and Accounting Service
Defense Information Service Agency Defense Inspector General Defense
Logistics Agency Defense Threat Reduction Agency Department of Agriculture
Department of the Air Force Department of the Army Department of Commerce
Department of Education Department of Energy Department of Health and
Human Services Department of Homeland Security Department of Housing and
Urban Development Department of the Interior Department of Justice
Department of Labor Department of the Navy Department of State Department
of Transportation Department of the Treasury Department of Veterans
Affairs Environmental Protection Agency Equal Employment Opportunity
Commission Federal Communications Commission Federal Trade Commission
General Services Administration National Aeronautics and Space
Administration National Archives and Records Administration National
Credit Union Administration National Labor Relations Board National
Science Foundation Nuclear Regulatory Commission Office of the Secretary
of Defense Office of Personnel Management Securities and Exchange
Commission Small Business Administration Social Security Administration
Appendix V Comments from the Equal Employment Opportunity Commission
The following are GAO's comments on EEOC's letter dated May 16, 2006.
1.EEOC expresses the view that the multiple areas of information
collection, which we have described as redundant, are in fact necessary,
and points out that several federal agencies have information collection
requirements that overlap but serve different purposes. EEOC offers as an
example that it and the Department of Labor's Office of Federal Contract
Compliance Programs (OFCCP) serve different legislative mandates but often
collect similar information. Our research shows that EEOC and OFCCP
jointly developed a form (EEO-1) to meet the needs of both agencies.
Further, parties make a single submission to the joint committee, made up
of EEOC and Department of Labor staff. We believe that EEOC's
collaboration with OFCCP is a positive example of collaboration that EEOC
and OPM could emulate in seeking opportunities for streamlining and
consolidating information gathering from federal agencies.
2.We recognize the differences in EEOC's and OPM's authorized
responsibilities. However, this does not obviate our point that similar
information to meet both requirements could be collected through a single
common instrument, from which EEOC and OPM could extract the information
needed for their separate reports. EEOC and OPM should look for ways to
minimize the impact of these differences on agencies.
3.This draft report and an earlier report on the EEO framework present
similarities and differences in responsibilities of EEOC and OPM and in
the requirements they place on agencies. In this report, we present the
informed views of EEO and human capital officials surveyed for the report
who deal with various requirements daily. In presenting these views, it
was beyond the scope of our review to independently analyze the validity
of the responses. We believe that it is more appropriate for EEOC and OPM
to explore opportunities to streamline and consolidate similar and
redundant requirements and, in doing so, to seek the views of agency EEO
and human capital managers who are responsible for carrying out the
requirements.
4.The statutes and executive orders place responsibility for EEO-related
programs on EEOC and OPM, as noted. However, the responsibility relates to
administering the programs and reporting results, not in collecting data.
We believe that there is no statutory impediment in title VII or in the
CSRA that would prevent EEOC and OPM from devising and distributing a
common data collection instrument, the information from which would be
subsequently used by the two agencies in separately analyzing the data and
reporting under FEORP and Management Directive (MD) 715. Should EEOC and
OPM conclude that certain coordination or streamlining efforts might not
be authorized under current statutes, executive orders, or regulations,
they could modify regulations, request that the President revise relevant
executive orders, or request that Congress amend relevant statutes to
bring about greater efficiency in how EEOC, OPM, and federal agencies meet
the requirements of the EEO framework. We clarified this in the report.
5.Figure 7, which shows survey respondents' perceptions of the usefulness
of feedback from EEOC on agency performance or contents of reports or
documents submitted under MD-713 and MD-714, contains a note that these
requirements were operational during the early part of the survey period.
Together, the requirements under MD-713 and MD-714, including submitting
annual reports, had much in common with the requirements under MD-715. In
addition, EEOC issued feedback letters to agencies on reports submitted
under MD-713 and MD-714. Because the first reports under MD-715 were not
due until after the survey period, it was not possible to ask survey
recipients for their views on feedback from EEOC on these reports. Though
MD-713 and MD-714 have been superseded, respondents' views on the
usefulness of EEOC feedback are not invalid.
6.EEOC's statement about the professional, administrative, clerical, other
white-collar and blue-collar (PATCOB) categories was taken from its
guidance "Frequently Asked Questions About Management Directive-715,"
wherein EEOC said "The EEOC determined that the PATCOB categories are
outdated, overly broad and too imprecise to allow the level of analysis
desired." In that same guidance, EEOC also said it adopted the same nine
occupational categories for use in analyzing the federal workforce to
conform with occupational categories on the EEO-1 report used by private
employees in reporting information to EEOC in order to provide more useful
information and facilitate comparisons between the federal and private
sectors. We have modified the report to reflect this.
7.We agree that MD-715 requires that agencies gather and analyze data on
applicants' race, national origin, gender, and disabilities and provides a
form for reporting the data gathered. However, in its instructions, EEOC
did not provide guidance to agencies on how they should collect such data
from applicants, which can only be collected voluntarily, or provide a
form that agencies could use to request information from applicants. At
the time of our review, no written guidance had been issued in this
regard. As we state in our report, EEOC provided verbal guidance when
requested by individual agencies.
8.This phrase "policy inconsistencies and disagreements" appears in the
summary of the recommendations in the Results in Brief section of the
report. The inconsistencies and disagreements are discussed in the report.
These include inconsistencies between EEOC and OPM in how federal
occupations are categorized for analytical purposes and disagreement on
the need and authority to collect race and national origin data from
applicants for employment.
9.EEOC commented that further information is needed with regard to our
discussion about the occupational categories and applicant flow data. This
discussion is intended to illustrate the existence of policy disagreements
and differences between EEOC and OPM. The comments to which EEOC refer
were made to us by OPM, and were explicitly attributed to OPM in our
report. That these differences exist further illustrates the lack of
coordination and collaboration between EEOC and OPM, and they are among
the issues we recommend that the two agencies resolve. We clarified the
report to include a reference to the Uniform Guidelines on Employee
Selection Procedures.
10.EEOC's discussion of the technical assistance it provides does not
directly address the findings in our report that, as of the time of our
survey in the fall of 2004, some EEO and human capital managers did not
consider EEO guidance to be useful, and a substantial number did not
consider EEOC feedback to be useful. EEOC's Strategic Plan for Fiscal Year
2004-2009 states that as a means of assessing its performance, the agency
will survey federal agency leadership to assess how EEOC's evaluations
enable agencies to improve their EEO programs. This survey, when it is
done, will be one means of providing EEOC with more current and
comprehensive information on agency views concerning the effectiveness of
its guidance and feedback.
11.The fiscal year 2004 data were used to describe the proportion of the
federal workforce employed at the agencies at the time of our survey.
Appendix VI Comments from the Office of Personnel Management
The following are GAO's comments on OPM's letter dated April 21, 2006.
1.We are not recommending that OPM go beyond its statutory authority and
do not assume areas of overlap to be dysfunctional and unintended. Our
recommendations are intended to help EEOC and OPM develop means to
cooperate and collaborate in gathering information from agencies to
identify opportunities to reduce the administrative requirements on
agencies while satisfying existing EEO framework requirements.
2.We neither recommend that EEOC and OPM merge into a collective approach
nor recommend that Congress require EEOC and OPM to adopt the
recommendations we make in this report. We recommended that Congress
require EEOC and OPM to report annually on actions taken or planned to
increase coordination and communications with each other, streamline like
requirements and resolve inconsistencies where appropriate, and improve
guidance and feedback to agencies.
3.We acknowledge in our report that there are differences in EEOC's and
OPM's responsibilities. In the draft provided to OPM for its comment, we
state that OPM's mission is to build a high-quality and diverse federal
workforce and that under title 5 of the U.S. Code, OPM is responsible for
executing, administering, and enforcing civil service laws and regulations
in the executive branch, including the merit system principles that
require fair and equitable treatment and equal opportunity and prohibit
discrimination in all aspects of federal employment. The differences in
EEOC's and OPM's responsibilities, however, should not preclude the two
agencies from exploring, and taking advantage of, opportunities for
coordination and cooperation in areas of common interest in the oversight
of EEO in federal agencies.
4.In our discussion of duplication of efforts, we were mindful of the
legal distinctions between the various components of the EEO framework.
See comment 3.
5.OPM expressed concern over use of the phrase "affirmative employment,"
stating that the phrase may be misunderstood as relating to past EEO
programs that have come under criticism and are the subject of ongoing
litigation involving allegations of improper preferential treatment. We
are aware of case law that has addressed federal EEO policies or practices
and the issue of improper preferential treatment, as well as the ongoing
litigation involving allegations of preferential treatment related to
affirmative employment plans which date back to superseded management
directives issued by EEOC. However, under the federal antidiscrimination
statutes, the federal sector remains obligated to go beyond merely
addressing complaints of alleged discrimination-to take positive
(affirmative) steps to ensure EEO. It is this federal sector obligation to
which we refer when we use the phrase "affirmative employment." Further,
OPM expresses concern about our reference to "workforce diversity." We do
not believe our use of the term "workforce diversity" is unique or
inconsistent with OPM's broad policies in the area. Rather, as our
definition clearly provides, workforce diversity is a very broad concept
and is not limited to recognizing the differences protected from
discrimination by statute.
6.We have added a footnote to page 1 referring readers to the definition
later in the report.
7.We have modified the report in line with OPM's comment.
8.Please see comment 5 above regarding our use of the term "affirmative
employment." While OPM specifically objects to our characterization of
MD-715 as an affirmative employment program, EEOC, in its comments, raised
no objections to our use of this phrase as it relates to MD-715, or
otherwise.
9.The statements referred to by OPM are the comments of agency EEO and
human capital officials who filled out our survey. They are intended to
illustrate the survey results. We did not independently evaluate the
validity of the statements made in the comments, and they are not
presented as facts or as findings.
10.We have made a change in accordance with OPM's comment.
11.We understand that OPM and EEOC do not carry out identical reviews;
however, workforce diversity issues share a common foundation with EEO
issues, which in our view creates the opportunity for cooperation and
coordination in oversight. It is important that staff performing work in
these areas have an awareness of efforts of the other agency so that their
individual and collective efforts could be more efficient.
12.We have changed the wording in accordance with OPM's comment.
13.We have changed table 1 in accordance with OPM's comment.
14.Executive Order No. 13171 mandates that "the head of each executive
department and agency shall establish and maintain a program for the
recruitment and career development of Hispanics in Federal employment." In
the Fifth Annual Report to the President on Hispanic Employment in the
Federal Government, dated February 16, 2006, OPM said it asked federal
agencies to identify human capital practices they found effective in
recruiting Hispanics.
15.We have modified the discussion of the PMA in the report to clarify our
source, in accordance with OPM's comments. (We are referring to the
scorecard the Office of Management and Budget (OMB) uses to assess
agencies' implementation of the PMA, commonly referred to as the "PMA
scorecard" that contains the standard of reducing underrepresentation and
sustaining workforce diversity.)
16.We have changed the title of table 2 in accordance with OPM's comments.
With regard to OPM's point that the combination of "some, little, or no
extent" seems broad, our methodology specialists have advised that
collapsing "some extent" with "little or no extent" is a common practice.
We have clarified this in appendix I.
17.The reference to "common features" was part of the two survey questions
on whether any two of the specific requirements listed were in fact
similar or redundant, and refers to those requirements.
While it is true that OPM now supplies agencies with Central Personnel
Data File (CPDF) workforce data for their FEORP reports, agencies are
still obligated to analyze these data to assess their workforces under
FEORP requirements and respond to OPM's requests for information.
18.As stated in our report, we were informed by agency EEO and human
capital managers that they have to make separate efforts for each
reporting requirement and consider this a significant burden. OPM and
EEOC, in their roles as leadership agencies, should work together to
understand how their collective requirements affect agencies and explore
how administrative burdens on agencies could be reduced.
19.We have modified the report to more fully explain EEOC's requirements
as they relate to OMB's revised standards for race and ethnicity
classification.
20.We have removed the comment which cited the categories which have since
been revised.
21.We have modified the report in accordance with OPM's comment.
22.We have modified the report in accordance with OPM's comment.
23.We have added more specific information concerning the NPR's
recommendations to the report.
24.We have modified the report to attribute the comment directly to the
NPR.
25.We have modified our discussion of the handbook to reflect OPM's
comment.
26.We understood OPM's comments about changing URLs, but believe that it
is more convenient for Web users to be able to go directly to the relevant
EEOC page than to go to a home page and search for needed information. We
believe that necessary changes in the links can be done by coordination
between OPM and EEOC Web managers.
27.We do not believe that EEOC's and OPM's responsibilities are so
different that these agencies could not explore the opportunity to conduct
joint oversight reviews, which may not necessarily entail doing all audit
work jointly. We also do not believe that such joint efforts would, in and
of themselves, compromise the confidentiality of OPM's oversight work.
Moreover, joint efforts would involve both EEO and human capital staff at
agencies and, in this way, could help foster collaboration between agency
EEO and human capital staff.
28.In our report, we counted as responding positively to EEOC or OPM
guidance and feedback only those respondents who answered "useful" or
"very useful" to the relevant questions. We regarded "somewhat useful" as
a response that did not indicate satisfaction with EEOC or OPM guidance
and feedback.
29.We have modified our presentation of the results of the question to use
whole numbers rather than percentages.
Appendix VII GAO Contact and Staff Acknowledgments
George H. Stalcup (202) 512-9490 or [email protected]
In addition to the contact named above, Belva M. Martin, Assistant
Director; Steven J. Berke; Karin K. Fangman; Anthony P. Lofaro; Anthony
Patterson; Amy Rosewarne; Samuel H. Scrutchins; Gregory H. Wilmoth; and
Monica L. Wolford made major contributions to this report.
(450307)
www.gao.gov/cgi-bin/getrpt? GAO-06-214 .
To view the full product, including the scope
and methodology, click on the link above.
For more information, contact George H. Stalcup at (202) 512-9490 or
[email protected].
Highlights of GAO-06-214 , a report to the Ranking Minority Member,
Committee on Homeland Security and Governmental Affairs, U.S. Senate
June 2006
EQUAL EMPLOYMENT OPPORTUNITY
Improved Coordination Needed between EEOC and OPM in Leading Federal
Workplace EEO
In April 2005 GAO reported on the EEO policy framework in the federal
workplace and the roles of EEOC and OPM. This report, in response to a
congressional request, provides information on (1) federal agency EEO and
human capital managers' views of the EEO framework requirements; (2) their
views on the usefulness of guidance and feedback from EEOC and OPM
concerning these requirements; and (3) how and to what extent EEOC and OPM
coordinate in developing policy, providing guidance, and exercising
oversight.
What GAO Recommends
GAO recommends that EEOC and OPM regularly coordinate in carrying out
their responsibilities under the EEO framework and seek opportunities for
streamlining like reporting requirements. Congress should require OPM and
EEOC to annually provide a joint statement of actions taken to implement
GAO's recommendations.
EEOC and OPM both acknowledged that their collaborative efforts could be
strengthened but took exception to the recommendation to streamline
requirements and disagreed with certain statements within the report. GAO
continues to believe that exploring opportunities to streamline
requirements is important for government effectiveness and efficiency.
EEO and human capital officials in federal agencies we surveyed said that
some requirements of the EEO framework contribute more than others to
achieving EEO, affirmative employment, and workforce diversity, and in
influencing human capital policies, practices, and strategic planning.
They also said that some requirements are very similar or redundant, such
as EEOC's affirmative employment program and OPM's program for recruiting
minorities and women. This creates duplication of effort as agencies
sometimes have to submit the same information in different reports to EEOC
and OPM. Further, the officials said they experienced added administrative
burden because of inconsistent requirements.
The officials also said that guidance from EEOC on EEO, affirmative
employment, and workforce diversity issues was more frequent and more
useful than that from OPM. Some officials questioned the usefulness of
feedback from EEOC and OPM on their agencies' performance or submitted
reports. Less than half reported that the feedback was useful or very
useful and a substantial number of respondents reported that they received
no feedback from OPM. In addition, EEO and human capital officials
expressed the strong view that both OPM and EEOC could be doing more to
help their agencies.
We found little evidence of coordination at the operating level between
EEOC and OPM in developing policy, providing guidance, and exercising
oversight, despite overlapping responsibilities in federal workplace EEO.
For example, EEOC and OPM officials do not routinely review reports that
the other agency receives from federal agencies, even though those reports
deal with similar matters. In addition, EEOC and OPM officials do not
coordinate with each other when conducting on-site reviews of EEO-related
matters at agencies. Good management practice as well as federal statute
and executive order call for coordination, and not doing so results in
lost opportunity to realize consistency, efficiency, and public value in
EEO policy making and oversight. The Office of Management and Budget made
a recommendation to OPM in 2005 that it develop a regular/formal working
relationship with EEOC with respect to those programs where it shares
oversight responsibility with EEOC in order to improve overall government
efficiency. Although EEOC officials acknowledged a need to coordinate at
the operating level and to develop an institutional coordination process,
OPM officials suggested that coordination need not be institutionalized.
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