Equal Employment Opportunity
The Policy Framework in the Federal Workplace and the Roles of EEOC and OPM Gao ID: GAO-05-195 April 29, 2005The federal government has created a framework to provide for EEO by prohibiting unlawful discrimination based on such factors as race, color, religion, gender, national origin, age, and disability, and offers redress when discrimination and retaliation have occurred. To further EEO and help bring about a diverse workforce, federal agencies are required to carry out affirmative employment and minority recruitment programs. EEOC and OPM have primary responsibility for ensuring that the government's policies for a fair, equitable, and inclusive workplace are carried out. In response to a congressional request that GAO provide information on the federal government's performance in promoting EEO and managing its diverse workforce, this report provides information on (1) the statutory and policy framework relating to EEO, affirmative employment, and workforce diversity and (2) the roles and responsibilities of EEOC and OPM within the framework and how these agencies carry out these roles and responsibilities.
Various statutes, executive orders, and other executive policy form the framework of EEO policy that governs civil rights and personnel management in the federal workplace. In 1972 federal workers received statutory civil rights protections when Congress passed the Equal Employment Opportunity Act, which extended to federal workers protections under title VII of the landmark Civil Rights Act of 1964 prohibiting employment discrimination based on race, color, religion, gender, or national origin. The 1972 act also required federal agencies to establish affirmative employment programs to address the underrepresentation of minorities and women in the federal workforce. In 1973 federal employees and applicants for employment with disabilities received employment discrimination protections under the Rehabilitation Act, and federal agencies were required to prepare affirmative employment program plans for the hiring, placement, and advancement of such individuals. The Civil Service Reform Act of 1978 further underscored the government's commitment to EEO, stating that for the federal workforce to reflect the nation's diversity, federal personnel management should follow merit principles by treating employees fairly and equitably, and that personnel actions should be free from prohibited personnel practices, including discrimination. The 1978 act also required agencies to conduct a continuing recruiting program to address minority underrepresentation. Other statutes, executive orders, and executive policy are also part of the federal workplace EEO policy framework. EEOC and OPM each play important leadership roles within this framework in ensuring EEO in the federal workplace. EEOC is responsible for enforcing federal laws prohibiting discrimination and oversees federal agencies' EEO programs, including their affirmative employment programs. OPM is the government's human capital manager and is responsible for ensuring that personnel management functions follow the merit principles, including those related to EEO. OPM is to assist agencies in carrying out their minority recruitment programs and evaluating the effectiveness of these programs in eliminating minority underrepresentation. EEOC and OPM issue regulations and directives to carry out their responsibilities and exercise oversight by reviewing federal workforce demographic data; reviewing reports from agencies on their progress in meeting program requirements; conducting on-site reviews at federal agencies; and providing technical assistance, training, and guidance. In addition, both agencies publish annual reports on program activities and workforce demographics. Although responsibility for ensuring that EEO is shared among agencies, EEOC has also been charged under statute and executive order with providing leadership and coordination to promote efficiency and eliminate conflict, competition, duplication, and inconsistency. We provided OPM and EEOC with a draft of this report for their review and comment. OPM said that, in general, the report accurately reflects OPM's current roles and responsibilities. We clarified the report in response to EEOC's comments to indicate that this report focuses on affirmative employment and that we previously reported on EEOC's complaint process responsibilities.
GAO-05-195, Equal Employment Opportunity: The Policy Framework in the Federal Workplace and the Roles of EEOC and OPM
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Report to the Ranking Minority Member, Committee on Homeland Security
and Governmental Affairs, U.S. Senate:
United States Government Accountability Office:
GAO:
April 2005:
Equal Employment Opportunity:
The Policy Framework in the Federal Workplace and the Roles of EEOC and
OPM:
GAO-05-195:
GAO Highlights:
Highlights of GAO-05-195, a report to the Ranking Minority Member,
Committee on Homeland Security and Governmental Affairs, U.S. Senate:
Why GAO Did This Study:
The federal government has created a framework to provide for EEO by
prohibiting unlawful discrimination based on such factors as race,
color, religion, gender, national origin, age, and disability, and
offers redress when discrimination and retaliation have occurred. To
further EEO and help bring about a diverse workforce, federal agencies
are required to carry out affirmative employment and minority
recruitment programs. EEOC and OPM have primary responsibility for
ensuring that the government‘s policies for a fair, equitable, and
inclusive workplace are carried out.
In response to a congressional request that GAO provide information on
the federal government‘s performance in promoting EEO and managing its
diverse workforce, this report provides information on (1) the
statutory and policy framework relating to EEO, affirmative employment,
and workforce diversity and (2) the roles and responsibilities of EEOC
and OPM within the framework and how these agencies carry out these
roles and responsibilities.
GAO is not making recommendations in this report.
What GAO Found:
Various statutes, executive orders, and other executive policy form the
framework of EEO policy that governs civil rights and personnel
management in the federal workplace. In 1972 federal workers received
statutory civil rights protections when Congress passed the Equal
Employment Opportunity Act, which extended to federal workers
protections under title VII of the landmark Civil Rights Act of 1964
prohibiting employment discrimination based on race, color, religion,
gender, or national origin. The 1972 act also required federal agencies
to establish affirmative employment programs to address the
underrepresentation of minorities and women in the federal workforce.
In 1973 federal employees and applicants for employment with
disabilities received employment discrimination protections under the
Rehabilitation Act, and federal agencies were required to prepare
affirmative employment program plans for the hiring, placement, and
advancement of such individuals. The Civil Service Reform Act of 1978
further underscored the government‘s commitment to EEO, stating that
for the federal workforce to reflect the nation's diversity, federal
personnel management should follow merit principles by treating
employees fairly and equitably, and that personnel actions should be
free from prohibited personnel practices, including discrimination. The
1978 act also required agencies to conduct a continuing recruiting
program to address minority underrepresentation. Other statutes,
executive orders, and executive policy are also part of the federal
workplace EEO policy framework.
EEOC and OPM each play important leadership roles within this framework
in ensuring EEO in the federal workplace. EEOC is responsible for
enforcing federal laws prohibiting discrimination and oversees federal
agencies‘ EEO programs, including their affirmative employment
programs. OPM is the government‘s human capital manager and is
responsible for ensuring that personnel management functions follow the
merit principles, including those related to EEO. OPM is to assist
agencies in carrying out their minority recruitment programs and
evaluating the effectiveness of these programs in eliminating minority
underrepresentation. EEOC and OPM issue regulations and directives to
carry out their responsibilities and exercise oversight by reviewing
federal workforce demographic data; reviewing reports from agencies on
their progress in meeting program requirements; conducting on-site
reviews at federal agencies; and providing technical assistance,
training, and guidance. In addition, both agencies publish annual
reports on program activities and workforce demographics. Although
responsibility for ensuring that EEO is shared among agencies, EEOC has
also been charged under statute and executive order with providing
leadership and coordination to promote efficiency and eliminate
conflict, competition, duplication, and inconsistency.
We provided OPM and EEOC with a draft of this report for their review
and comment. OPM said that, in general, the report accurately reflects
OPM's current roles and responsibilities. We clarified the report in
response to EEOC‘s comments to indicate that this report focuses on
affirmative employment and that we previously reported on EEOC‘s
complaint process responsibilities.
www.gao.gov/cgi-bin/getrpt?GAO-05-195.
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 StalcupG@gao.gov.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
Statutes, Executive Orders, and Executive Policy Underpin the
Government's Framework for EEO in the Federal Workplace:
EEOC and OPM Have Primary Oversight for EEO:
Agency Comments and Our Evaluation:
Appendix I: Objectives, Scope, and Methodology:
Appendix II: Comments from the U.S. Equal Employment Opportunity
Commission:
Appendix III: GAO Contacts and Staff Acknowledgments:
Table:
Table 1: Elements of a Model EEO Program and Major Agency
Responsibilities for the Model Program:
Figures:
Figure 1: Definitions of EEO, Affirmative Employment, and Workforce
Diversity:
Figure 2: Overview of the Roles of EEOC and OPM within the EEO
Framework:
Figure 3: EEOC Instructions to Agencies for Analysis of Workforce Data
and Personnel Actions:
Figure 4: Key Elements of Agencies' FEORP Plans:
Figure 5: Selected HCAAF Elements Relating to the PMA Standard of
Reducing Underrepresentation and Establishing a Process to Sustain
Workforce Diversity:
Abbreviations:
ADEA: Age Discrimination in Employment Act of 1967:
CLF: Civilian Labor Force:
CDPF: Central Personnel Data File:
CSC: Civil Service Commission:
CSRA: Civil Service Reform Act of 1978:
DVAAP: Disabled Veterans Affirmative Action Program:
EEO: equal employment opportunity:
EEOC: Equal Employment Opportunity Commission:
EPA: Equal Pay Act of 1963:
EPCA: EEO Program Compliance Assessment:
FEORP: Federal Equal Opportunity Recruitment Program:
GAO: Government Accountability Office:
GPRA: Government Performance and Results Act:
GS: General Schedule:
HCAAF: Human Capital Accountability and Assessment Framework:
HCO: Human Capital Officer:
MBA: master of business administration:
MD: Management Directive:
MSPB: Merit Systems Protection Board:
No FEAR: Notification and Federal Employee Antidiscrimination and
Retaliation Act:
OMB: Office of Management and Budget:
OPM: Office of Personnel Management:
PATCO: PATCOB, not including blue-collar:
PATCOB: Professional, Administrative, Technical, Clerical, Other White-
collar, and Blue-collar:
PMA: President's Management Agenda:
United States Government Accountability Office:
Washington, DC 20548:
April 29, 2005:
The Honorable Joseph I. Lieberman:
Ranking Minority Member:
Committee on Homeland Security and Governmental Affairs:
United States Senate:
Dear Senator Lieberman:
It has long been the policy of the U.S. government to provide a
workplace for its employees that is fair, equitable, and free from
discrimination and retaliation. Laws provide for equal employment
opportunity (EEO) by (1) prohibiting certain personnel practices,
including unlawful discrimination based on race, color, religion,
gender, national origin, age, and disability and (2) offering avenues
of redress when discrimination and retaliation have occurred.[Footnote
1] To further EEO and help bring about a diverse workforce reflective
of all segments of society, federal agencies are required to carry out
affirmative employment and minority recruitment programs. Ensuring that
federal agencies adhere to the government's laws and policy is
primarily the responsibility of the Equal Employment Opportunity
Commission (EEOC) and the Office of Personnel Management
(OPM).[Footnote 2]
Over several decades, the federal government has created a statutory,
regulatory, and policy structure for ensuring EEO in federal
employment. In this report, prepared in response to your request, we
provide information on (1) the statutory and policy framework relating
to federal EEO, affirmative employment, and workforce diversity and (2)
the roles and responsibilities of EEOC and OPM within the framework and
how these agencies carry out these roles and responsibilities. This
report primarily focuses on EEOC's affirmative employment
responsibilities within the framework. We previously reported on EEOC's
roles and responsibilities for establishing procedures for handling
federal employees' allegations of discrimination and providing for the
adjudication of complaints and hearing appeals.[Footnote 3]
This is the second report resulting from a series of reviews that
respond to your request that we examine the federal government's
performance in promoting equal employment opportunity and managing a
diverse workforce. In January we reported on leading practices for
diversity management.[Footnote 4] Our other reviews are examining (1)
how EEOC and OPM coordinate with each other in carrying out their EEO-
related responsibilities, federal EEO and human capital managers' views
of the various EEO-related requirements placed on them, and the
leadership that EEOC and OPM provide; (2) how federal agencies measure
the results of their EEO programs and diversity initiatives; and (3)
examples of how leading diversity management practices are implemented
in the private sector.
To accomplish our objectives for this report, we (1) reviewed the
statutes, regulations, and policies governing EEO, affirmative
employment, and diversity in the executive branch of the federal
government and (2) discussed our observations with EEOC and OPM
officials.[Footnote 5] Our work primarily focused on EEOC and OPM
because of their significant roles and responsibilities in ensuring a
fair, equitable, and inclusive workplace free from discrimination and
retaliation. We did our work from March 2003 through February 2005, in
accordance with generally accepted government auditing standards. The
details of our objectives, scope, and methodology are in appendix I.
Results in Brief:
The framework relating to EEO in the federal workplace is formed by
various statutes, executive orders, and other executive policy that
were put in place over several decades. This framework governs civil
rights and personnel management and places primary responsibility on
federal agencies to provide workplaces that have a culture of fairness,
equity, and inclusiveness free from discrimination.
* The hallmark legislation providing civil rights protections for
federal workers is the Equal Employment Opportunity Act of 1972, which:
Congress enacted to address, in part, the continued underrepresentation
of minorities and women in the federal workplace. This act extended to
federal workers the provisions of title VII of the Civil Rights Act of
1964, the landmark civil rights statute prohibiting employment
discrimination based on race, color, religion, gender, or national
origin. The 1972 act also required federal agencies to establish
affirmative employment programs.
* A year later, the Rehabilitation Act of 1973 extended employment
discrimination protections to federal employees and applicants for
employment with disabilities, and required agencies to prepare
affirmative action program plans for the hiring, placement, and
advancement of such individuals.
* The Civil Service Reform Act of 1978, in overhauling federal
personnel laws, also underscored the government's commitment to EEO.
The act provides (1) that for the federal workforce to reflect the
nation's diversity, federal personnel management should follow merit
principles, including treating employees fairly and equitably and (2)
that personnel actions should be free from prohibited practices,
including discrimination. The act also requires agencies to conduct a
continuing program for recruiting minorities that is intended to
address minority underrepresentation.
Other statutes, executive orders, and executive policy further
constitute the federal workplace EEO framework.
EEOC and OPM each play important roles within this framework in
ensuring EEO in the federal workplace through their leadership and
oversight of federal agencies. EEOC enforces laws prohibiting
employment discrimination in the federal workplace and oversees federal
agencies' EEO programs, including their affirmative employment
programs. As the government's human capital manager, OPM is responsible
for ensuring that personnel management functions follow the merit
principles, including those aimed at ensuring equal employment
opportunity. OPM is also responsible for assisting agencies in carrying
out minority recruitment programs and evaluating their effectiveness in
eliminating minority underrepresentation. To carry out their
responsibilities, EEOC and OPM issue regulations and directives that,
among other things, require agencies to analyze workforce demographics,
identify underrepresented groups, develop strategies to address
underrepresentation, and prepare annual reports. In addition, EEOC and
OPM review federal workforce demographic data to track the
representation of the various groups of employees across government,
within agencies, and within occupational categories at agencies; review
reports from agencies on their status and progress in meeting program
requirements; conduct on-site reviews at federal agencies; and provide
federal agencies with technical assistance, training, and guidance.
Although responsibility for ensuring EEO is shared among agencies, EEOC
is responsible under statute and executive order for providing
leadership and coordination to promote efficiency and eliminate
conflict, competition, duplication and inconsistency.
We provided OPM and EEOC with a draft of this report for their review
and comment. OPM, in its comments, said that, in general, the report
accurately reflects OPM's current roles and responsibilities. In
response to EEOC's comments, we clarified the report to indicate that
we had not fully discussed EEOC's responsibility for the federal
employees' discrimination complaint process because (1) this report
focuses on affirmative employment and (2) we previously reported on the
complaint process.
Background:
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.[Footnote 6] Congress amended title VII
in 1972 to extend employment discrimination protections to federal
workers and applicants for federal employment and gave the Civil
Service Commission (CSC), OPM's predecessor agency for carrying out
human capital functions in the federal government, responsibility for
enforcing title VII requirements for federal employment. These
responsibilities were later transferred to EEOC under Reorganization
Plan No. 1 of 1978 when CSC was abolished and OPM created.[Footnote 7]
In enacting the 1972 amendments, Congress concluded that the government
had failed to pursue its policy of equal employment opportunity for the
federal workforce, noting statistics that minorities and women
continued to be denied access to a large number of jobs, particularly
at higher-level policymaking and supervisory positions.[Footnote 8]
In recent years, GAO as well as OPM, the Merit Systems Protection Board
(MSPB),[Footnote 9] and EEOC have reported on EEO-related issues
concerning women and minorities in the federal workforce. In 2001 and
2003, we reported on the representation of minorities and women in the
career Senior Executive Service during the 1990s and early
2000s.[Footnote 10] While we found that the representation of
minorities and women had increased during that period, we reported that
the representation of minorities and women would not increase
substantially by 2007 if then-current SES appointment patterns
continued.[Footnote 11] In addition to representation issues, surveys
of the federal workforce by OPM and MSPB have revealed that minorities
have less favorable perceptions about workplace fairness and equity
than nonminorities. Also, EEOC reported that federal employees filed
20,226 discrimination complaints in fiscal year 2003.
Experiences or perceptions of unfair treatment and the lack of
opportunity and inclusiveness, whether real or perceived, can undermine
the efficient and effective accomplishment of government agencies'
mission. Recognizing this, the government has further developed the EEO
policy framework for the federal workplace and has established EEOC and
OPM as the principal agencies charged with carrying out the
government's policy for EEO, affirmative employment, and workforce
diversity. For the purpose of this review, we defined EEO, affirmative
employment, and workforce diversity as follows:
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 a program 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 each other, including characteristics
protected by law, i.e., race, color, religion, gender, national origin,
age, and disability.[A] Workforce diversity may also take into account
other factors, such as background, education, work roles, and
personality.[B].
Source: GAO.
[A] See GAO-05-90 for a discussion on managing workforce diversity.
[B] EEOC's roles and responsibilities are limited in scope to those
groups protected from discrimination by the statutes discussed in the
EEO framework.
[End of figure]
Statutes, Executive Orders, and Executive Policy Underpin the
Government's Framework for EEO in the Federal Workplace:
Various statutes, executive orders, and other executive policy form the
framework relating to EEO in the federal workplace.[Footnote 12] 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.
When the Civil Rights Act of 1964 was enacted, title VII of the act
prohibiting employment discrimination did not apply to the federal
government as an employer. The government's EEO policy for federal
workers had been addressed in executive orders. In particular,
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.[Footnote 13] 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.[Footnote 14] In addition, the 1972 amendments,
enacted 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 so as to perform at their
highest potential.
The Rehabilitation Act of 1973[Footnote 15] extended employment
discrimination protections to federal employees and applicants for
employment with disabilities. Similar to the requirements under title
VII, section 501 of the Rehabilitation Act requires federal departments
and agencies to prepare affirmative action program plans for the
hiring, placement, and advancement of individuals with disabilities.
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 Disabled
Veterans Affirmative Action Program was authorized by the Vietnam Era
Veterans' Readjustment Assistance Act of 1974,[Footnote 16] as amended.
The law requires agencies to have an affirmative action program for the
recruitment, employment, and advancement of disabled veterans and
requires a separate affirmative action plan for disabled veterans that
is to be part of agencies' efforts under the Rehabilitation Act.
Besides the Rehabilitation Act and the Disabled Veterans Affirmative
Action Program, two executive orders issued in 2000 are to enhance EEO
and affirmative employment 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,[Footnote 17] 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 to, among other things, 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,[Footnote 18] 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. Under the order, agencies are required to
establish written procedures for processing requests for reasonable
accommodation.
The Civil Service Reform Act (CSRA) of 1978,[Footnote 19] 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 reflective of the nation's diversity, federal personnel
management should be implemented consistent with merit system
principles and free from prohibited personnel practices. The CSRA
listed nine merit system principles,[Footnote 20] the first two of
which are directly applicable to EEO in promoting a fair, equitable,
and inclusive workplace:
* Recruitment should be from 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 assures that all receive equal opportunity.
* 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, gender, 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.[Footnote 21]
The CSRA further emphasized the government's resolve to ensure EEO and
to address underrepresentation. The act established the Federal Equal
Opportunity Recruitment Program to address underrepresentation[Footnote
22] of minorities in the federal workforce by requiring that executive
agencies conduct a continuing program for recruiting
minorities.[Footnote 23]
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.[Footnote 24] The order requires agencies 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 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. Among the standards for success within the strategic
management of human capital goal is how well agencies address
underrepresentation and implement programs to sustain diversity.
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.[Footnote 25] 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 remedial plans to improve their
civil rights and complaint programs.[Footnote 26] Furthermore, in
enacting this law, Congress intended 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 1963 (EPA)[Footnote 27] protects
men and women who perform substantially equal work in the same
establishment from sex-based wage discrimination. The Age
Discrimination in Employment Act (ADEA),[Footnote 28] as amended,
protects individuals who are 40 years of age or older from age-based
employment discrimination.
EEOC and OPM Have Primary Oversight for EEO:
Within the EEO framework, EEOC and OPM play important roles in pursuit
of a fair, equitable, and inclusive federal workplace through their
leadership and oversight of federal agencies. EEOC's role is founded on
its responsibility to enforce federal antidiscrimination laws in the
federal and private sectors and OPM's responsibility is founded on its
responsibility to serve as the government's human capital manager.
Among the many duties that EEOC and OPM carry out in this regard, both
issue regulations, directives, and guidance to supplement the EEO
framework and establish requirements for agencies. In carrying out
their oversight responsibilities, both EEOC and OPM review federal
workforce demographic data and annual reports from agencies, conduct on-
site visits, and provide guidance and training. In addition, both
agencies issue annual reports on federal workforce demographics. Figure
2 provides an overview of EEOC's and OPM's roles within the EEO
framework.
Figure 2: Overview of the Roles of EEOC and OPM within the EEO
Framework:
EEOC:
* Provide leadership and coordination of federal EEO efforts;
* Promote equality of opportunity in the federal workplace;
* Enforce laws prohibiting employment discrimination;
* Establish procedures for handling discrimination complaints and
adjudicating complaints;
* Establish affirmative employment program requirements;
* Provide guidance, training, and technical assistance for agencies;
* Monitor federal agencies' compliance with EEO laws;
* Review agencies' affirmative employment programs;
* Issue annual report on the federal workforce providing data on the
representation of minorities, women, and persons with disabilities.
OPM:
* Oversee personnel management in the executive branch;
* Build a high-quality and diverse federal workforce;
* Enforce merit system principles that ensure that employees work in a
fair and discrimination-free environment;
* Assess agencies' human capital practices;
* Monitor workforce diversity;
* Establish requirements for and assist agencies in carrying out equal
opportunity recruiting program to address underrepresentation;
* Provide agencies with guidance and training;
* Evaluate agencies' efforts to eliminate underrepresentation;
* Issue annual reports on the representation of minorities, women, and
disabled veterans in the federal workforce.
Source: GAO.
[End of figure]
Although both EEOC and OPM have responsibilities and carry out
activities within the EEO framework, EEOC is responsible under statute
and executive order for providing leadership and coordination of
federal EEO efforts.
EEOC's Role within the Framework:
EEOC's mission is to promote equality of opportunity in the workplace
and enforce federal laws prohibiting employment discrimination. In the
federal sector, EEOC is responsible for enforcing the employment
discrimination prohibitions under title VII of the Civil Rights Act,
the Rehabilitation Act, the EPA, and the ADEA. Responsibility for
federal-sector EEO had originally belonged to CSC, OPM's predecessor
agency, but was transferred to EEOC under Reorganization Plan No. 1 of
1978. Another major EEOC responsibility is 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.[Footnote 29],[Footnote 30] In addition, EEOC establishes
affirmative employment program requirements, monitors federal agencies'
compliance with EEO laws and procedures, and reviews and assesses the
effectiveness of agencies' affirmative employment programs.
Pursuant to its authority under title VII of the Civil Rights Act,
section 501 of the Rehabilitation Act of 1973, and the ADEA, EEOC is
responsible for the annual review and approval of agencies' affirmative
employment plans, reviewing and evaluating the operation of all
agencies' EEO programs, and periodically obtaining and publishing
progress reports. EEOC is also authorized to issue policies, rules,
regulations, orders, and instructions to carry out its
responsibilities. Under Executive Order No. 13164, EEOC is to provide
agencies with guidance to establish their written procedures for
processing requests for reasonable accommodation, which are to be
submitted to EEOC. In addition, EEOC is to receive the annual reports
that agencies are required to prepare under the provisions of the No
FEAR Act.
Requirements for Federal Agencies:
EEOC has implemented statutory requirements under title VII and section
501 of the Rehabilitation Act by issuing a series of Management
Directives (MDs) that have provided agencies with instructions,
procedures, and guidance.[Footnote 31] The most recent of these, MD-
715, effective in October 2003, superseded earlier directives.
Under MD-715, EEOC provides policy guidance and standards for agencies
for establishing and maintaining effective affirmative employment
programs under title VII and section 501 of the Rehabilitation
Act.[Footnote 32] According to a senior EEOC official, MD-715 upgraded
standards and methods by which agencies measure and analyze workforce
diversity as they continue to take steps toward increasing the
employment of underrepresented groups. EEOC separately issued
instructions for implementing MD-715 requirements for (1) a "Model EEO
Program" to achieve a discrimination-free and inclusive workplace, (2)
identifying and eliminating barriers to equal participation, and (3)
reporting.
In MD-715, EEOC established six essential elements for a Model EEO
Program. According to EEOC's MD-715 instructions, attaining a Model EEO
Program will provide the infrastructure for an agency to achieve the
ultimate goal of a discrimination-free work environment, characterized
by an atmosphere of inclusion and free and open competition for
employment opportunities. Table 1 shows these elements and the major
responsibilities that EEOC places on agencies in incorporating them
into the EEO program.
Table 1: Elements of a Model EEO Program and Major Agency
Responsibilities for the Model Program:
Model EEO Program element: Demonstrated commitment from agency
leadership;
Major agency responsibilities:
* Having a definitive and meaningful statement of EEO policy;
* Allocating sufficient resources to the EEO program;
* Ensuring that all employees are informed of EEO policies and
procedures.
Model EEO Program element: Integration of EEO into the agency's
strategic mission;
Major agency responsibilities:
* Having agency managers be an integral part of the agency's EEO
program, with the EEO office providing managers with direction and
guidance and monitoring key activities;
* Structuring an EEO program so as to maintain a discrimination-free
workplace and support of the agency's strategic mission;
* Ensuring EEO officials' involvement in critical workplace decisions,
access to senior staff, and participation in meetings involving
critical personnel decisions;
* Including an appropriate reporting structure, with the agency's EEO
director having a regular and effective means of informing the agency
head and other management officials of the effectiveness, efficiency,
and legal compliance of the EEO program.
Model EEO Program element: Management and program accountability;
Major agency responsibilities:
* Hiring of managers and supervisors who have the skills needed to
supervise in a diverse workplace;
* Making clear that all managers and supervisors share responsibility
with EEO program and human resources officials for the successful
implementation of EEO programs;
* Making EEO an element in supervisors' and managers' performance
evaluations, with successful performance for all managers and
supervisors contingent on efforts to achieve a workforce free of
discrimination;
* Providing for effective coordination between the agency's EEO office
and other management programs, such as the Federal Equal Opportunity
Recruitment Program, the Alternative Dispute Resolution office, and the
Employee Relations office.
Model EEO Program element: Proactive prevention of unlawful
discrimination;
Major agency responsibilities:
* Self assessing the EEO program to monitor progress, prevent
discrimination, and identify barriers to free and open competition;
* Developing a comprehensive antiharassment policy that includes
informing employees of prohibited behavior, providing multiple avenues
of redress, and making clear that acts of harassment will not be
tolerated;
* Having an effective reasonable accommodation procedure to handle the
needs of employees with disabilities.
Model EEO Program element: Efficiency;
Major agency responsibilities:
* Having a fair, impartial, and neutral complaint resolution system
that includes access to alternative dispute resolution and timely
compliance with orders from EEOC and other adjudicatory bodies (such as
the Merit Systems Protection Board and the Federal Labor Relations
Authority);
* Having an effective system for collecting and analyzing data on
workforce composition and on discrimination complaints and their
resolution;
* Consulting with EEOC to learn about best EEO practices in other
agencies.
Model EEO Program element: Responsiveness and legal compliance;
Major agency responsibilities:
* Certifying to EEOC the agency's full compliance with EEO laws,
regulations, and other guidance;
* Annual reporting to EEOC of EEO efforts and accomplishments and
compliance with EEOC orders.
Source: EEOC.
[End of table]
EEOC MD-715 requires agencies to complete a self assessment checklist
to determine the extent to which their program meets Model EEO Program
requirements.
Under MD-715, EEOC also requires agencies to systematically identify,
examine, and remove barriers to equal participation at all levels of
the workforce. EEOC defines a barrier as an agency policy, principle,
practice, or condition that limits or tends to limit employment
opportunities for members of a particular race, gender, or ethnic
background, or is based on an individual's disability status.
MD-715 instructions to agencies contain steps for agencies to follow in
identifying and eliminating barriers. The first of these is to analyze
data concerning the agency's workforce to determine if there are any
disparities in the representation of any particular group (e.g., women,
minorities, and individuals with disabilities). EEOC instructs agencies
to analyze workforce data and personnel actions on several levels as
figure 3 shows.
Figure 3: EEOC Instructions to Agencies for Analysis of Workforce Data
and Personnel Actions:
* Analyze data concerning agency workforce, looking at participation
rates of the employee population by race, national origin, gender, and
disability to determine if any particular group is being underutilized
by the agency in a particular occupation or at a particular grade or
pay level;
* Compare overall workforce demographic profile with the national
Civilian Labor Force (CLF), which is composed of those 16 and older who
are employed or looking for work and not in the military or are
institutionalized;
* Analyze workforce broken out by nine major occupational
categories,[A] comparing their workforce composition in each category
with the equivalent category in the CLF.[B];
* Compare "major occupations" within the workforce (i.e., occupations
that are mission relevant and heavily populated) with relevant CLF data
based on the occupation and the geographic location of the agency's
area of recruitment;
* Compare the applicant pool with the relevant CLF appropriate for the
occupation and geographic area being recruited;
* Compare data on promotions, training opportunities, performance
incentives, and separations with data for the total workforce (and, in
the case of promotions, with data for the workforce in "feeder grades"
below the level of the promoted positions).
Source: EEOC.
[A] The categories include officials and managers; professionals;
technicians; sales; administrative support workers; craft workers,
operatives, laborers, and service workers.
[B] EEOC advises agencies to use the Census 2000 EEO Data Tool to
obtain CLF data for comparative purposes. This tool, available to
agencies through the Census Web site (www.census.gov/eeo2000), allows
agencies to obtain and sort data from the Census 2000 Special EEO
Tabulation, which was created by a consortium of EEOC, OPM, and the
Labor and Justice Departments. This tabulation serves as the primary
external benchmark for comparing the race, ethnicity, and gender of an
organization's workforce with that of the analogous external labor
market, within a specified geography and job category.
[End of figure]
Using their workforce analysis and information from other sources, such
as employee surveys, past discrimination complaints, and input from
employees and employee groups, EEOC, in MD-715, instructs that agencies
should review their employment policies and procedures in their ongoing
obligation to eliminate barriers to identify those that might be
reducing opportunities for employees but are not essential to an
agency's mission. One such example is a requirement that all persons
holding a program analyst position hold a master of business
administration (MBA) degree, with no allowance being made for
equivalent experience. EEOC's MD-715 instructions also state that the
barrier analysis should deal with matters relating to persons with
disabilities, such as the effectiveness and efficiency with which the
agency processes requests for reasonable accommodation under the
Rehabilitation Act. According to the instructions, after an agency has
identified barriers, it should devise a plan aimed at eliminating the
barriers that are not job related or modifying the adverse impact of
those that are job related. For example, an agency that has a low
number of African-American women as program analysts at the General
Schedule (GS) grade 13 level and above compared with those at grade 12
and below might examine whether the requirement for an MBA for
promotion to grade 13 might not be necessary and might be a barrier.
Under previous management directives, EEOC required federal agencies
under its jurisdiction to report annually on their EEO programs and the
status of women, minorities, and persons with disabilities in the
agency.[Footnote 33] Similarly, agency reports required under MD-715
are to include workforce data collected and analyzed by race, gender,
national origin, and disability; a description of identified barriers;
and a plan for eliminating or moderating them. In addition, agencies
must evaluate their EEO programs using EEOC's checklist and certify to
EEOC that they have done so (although they do not have to submit the
checklist).
EEOC Oversight:
EEOC exercises oversight by reviewing the reports that agencies submit
annually. EEOC uses the government's Central Personnel Data File
(CPDF), maintained by OPM, to check agencies' workforce data
submissions and track the representation of minorities, women, and
persons with disabilities across government, within agencies, and
within occupational categories at agencies.
EEOC also conducts periodic on-site reviews of agencies' EEO
activities. EEOC's decision on where to do such reviews is based in
part on data from agencies' annual reports but also on newspaper
reports, the volume and nature of individual EEO complaints, and
letters from the public. EEOC's on-site reviews examine a certain part
of an agency's EEO program, such as affirmative employment or the
complaint process, at the agency's headquarters or a field facility.
During fiscal years 2002 to 2004, EEOC conducted 67 on-site reviews.
According to EEOC officials, the agency is developing a tool to
systematically evaluate agencies' EEO programs, to be known as the EEO
Program Compliance Assessment (EPCA). This assessment will be based on
the elements of a Model EEO Program set forth in MD-715. According to a
senior EEOC official, EEOC intends for the EPCA to supplement the
evaluation of federal agencies under the human capital standards of the
PMA by providing more-detailed measurements of agencies' EEO
programs.[Footnote 34]
In addition, EEOC, in the fall of 2003, began a pilot project at six
federal agencies to work with selected agencies on an ongoing basis.
Under this program, known as the Customer Relationship Management
Program, multidisciplined teams of EEOC staff work with the agencies on
affirmative employment, complaint management, and other key areas
pertaining to EEO. The teams also meet with the agencies and help them
analyze their data regarding EEO. In commenting on a draft of this
report, EEOC said it had completed its evaluation of the Customer
Relationship Management Program and expanded the project to include six
additional agencies.
EEOC also provides federal agencies with guidance and technical
assistance through publications, such as guidance on reasonable
accommodation,[Footnote 35] and through training in areas such as EEO
law and practice, complaint adjudication and management, alternative
dispute resolution, and compliance with the requirements of MD-715.
EEOC's Web site also provides information on EEO law and regulations,
as well as EEO policies and directives. In addition, according to EEOC,
the agency conducts outreach to employer and employee groups to provide
general information about EEOC, its mission, the employment
discrimination laws enforced by EEOC, and the complaint process.
EEOC Reporting:
EEOC reports data on EEO in federal agencies in its Annual Report on
the Federal Workforce. The report includes governmentwide and federal
agency data for the fiscal year for which it was issued and a
comparison of data from 10 years previously. In addition to
discrimination complaint data, the report includes data on workforce
participation by minorities, women, and persons with
disabilities.[Footnote 36] These data are reported governmentwide and
by agency, overall and for upper-level employees (GS-14 and GS-15 and
Senior Pay Level). EEOC also reports data on the number of workers in
major occupations (mission-oriented occupations with 100 or more
employees) in selected agencies. These occupations, according to EEOC,
frequently serve as gateways into upper management positions.
OPM's Role within the Framework:
OPM is the government's human capital manager, and its mission is to
build a high-quality and diverse federal workforce based on merit
system principles. The agency was created by the Civil Service Reform
Act and Reorganization Plan No. 2 of 1978[Footnote 37] to assume the
personnel management tasks of the abolished CSC. Title 5 of the U.S.
Code empowers OPM to oversee personnel management in the executive
branch. Specifically, OPM is tasked with executing, administering, and
enforcing civil service laws and regulations, including the merit
system principles that require fair and equitable treatment and equal
opportunity, and prohibit discrimination in all aspects of federal
employment.[Footnote 38] Title 5 also requires OPM to establish systems
for assessing federal agencies' management of human capital.
OPM is responsible for several EEO-related programs. Under title 5 of
the U.S. Code, OPM is to assist agencies in carrying out their Federal
Equal Opportunity Recruitment Program (FEORP) activities and to oversee
and evaluate agencies' programs to determine their effectiveness in
eliminating minority underrepresentation. OPM has similar
responsibilities for the Disabled Veterans Affirmative Action Program
(DVAAP).[Footnote 39] Under Executive Order No. 13171, aimed at
eliminating the underrepresentation of Hispanics in the federal
workforce, OPM's responsibilities include taking the lead in promoting
diversity, providing guidance, and chairing the Interagency Task Force
on Hispanic Employment in the Federal Government. Executive Order No.
13163 (1) requires OPM to provide guidance on increasing the
opportunities for individuals with disabilities employed in the federal
government and (2) required agencies to submit their plans to increase
the employment opportunities for individuals with disabilities to OPM.
Moreover, the President has charged OPM, in conjunction with the Office
of Management and Budget (OMB), with assessing agencies' performance in
meeting the President's Management Agenda (PMA) standards dealing with
reducing underrepresentation and implementing processes to sustain
workforce diversity.
Requirements for Agencies:
The CSRA requires agencies to conduct a continuing program for
recruiting minorities--the FEORP--and required OPM to issue
implementing regulations for the program.[Footnote 40] Among OPM's
requirements is that agencies have an equal opportunity recruiting plan
for minorities and women.[Footnote 41] OPM's regulations require that
the FEORP plans be incorporated into the affirmative employment plans
that EEOC requires under MD-715 in accordance with title VII
requirements. However, the FEORP plans must remain a separable part of
the affirmative employment plans so that the former can be submitted to
and reviewed by OPM.[Footnote 42] Key elements of the FEORP plans are
shown in figure 4.
Figure 4: Key Elements of Agencies' FEORP Plans:
* Workforce analysis. Determinations of underrepresentation of
minorities and women, and development of quantifiable indexes for
measuring progress toward eliminating underrepresentation. In making
determinations of underrepresentation, agencies are to use the relevant
CLF as a comparison;
* Workforce planning. Occupations and grade levels of occupations to be
filled in the future and an assessment of the internal availability of
candidates;
* Recruitment. Methods the agency intends to use to locate and develop
minority and women candidates for each category of underrepresentation;
* Barrier removal. Efforts that will be undertaken to identify jobs
that can be redesigned so as to improve opportunities for minorities
and women;
* Training and job development. Programs the agency will use to provide
skills, knowledge, and abilities to qualify increased numbers of
minorities and women for occupational series and grade levels where
they are significantly underrepresented.
Source: GAO analysis of 5 C.F.R. sec. 720.205.
[End of figure]
Agencies are also required to submit annual FEORP reports to
OPM.[Footnote 43] For fiscal year 2003, OPM required agencies to
provide data on employee participation in agencywide and governmentwide
career development programs broken out by race, national origin,
gender, and grade level. In addition, OPM required agencies to provide
a narrative report identifying areas where the agencies had been most
successful in recruiting, hiring, and formal training of minorities and
women, and how they were able to achieve those results.[Footnote 44]
The Vietnam Era Veterans' Readjustment Assistance Act authorizing the
DVAAP requires agencies to have an affirmative action program for the
recruitment, employment, and advancement of disabled veterans, and OPM
regulations for the DVAAP[Footnote 45] place certain requirements on
agencies. OPM requires agencies to analyze workforce data to identify
problem areas and deficiencies in the employment and advancement of
disabled veterans. OPM regulations require that an agency's affirmative
action plan for disabled veterans, which is to be part of its
affirmative employment plan for persons with disabilities that EEOC
requires under MD-715 in accordance with section 501 of the
Rehabilitation Act, describe a number of things, including recruiting
methods; how the agency will provide or improve internal advancement
opportunities for disabled veterans; and how the agency will monitor,
review, and evaluate its planned efforts. OPM also requires agencies to
submit annual accomplishment reports that are to include an explanation
of the agency's progress in implementing its plan; an identification of
areas where progress has not been shown; and reasons for the lack of
progress, along with specific plans for overcoming obstacles to
progress.[Footnote 46]
Executive Order No. 13171 on Hispanic representation in the federal
government requires agencies to carry out various activities, including
developing recruiting plans for Hispanics; assessing and eliminating
systemic barriers to recruiting and considering Hispanics; and
implementing the goals of the Hispanic Employment Initiative Nine-Point
Plan,[Footnote 47] which OPM issued. In implementing its
responsibilities under the executive order, OPM asked agencies to
provide information on activities and accomplishments in implementing
the Hispanic Nine-Point Plan; top practices in strategic human capital
management and planning that best help improve the recruitment,
retention, and promotion of Hispanics; and how these practices align
with the agency's Annual Performance Plan under the Government
Performance and Results Acts (GPRA).[Footnote 48]
To guide agencies toward achieving the PMA human capital standards for
success, OPM developed the Human Capital Accountability and Assessment
Framework (HCAAF). The HCAAF does not establish requirements per se;
rather, it establishes suggested performance elements and measures that
OPM considers in assessing an agency's progress in meeting the human
capital standards of success of the PMA. Suggested performance elements
and measures deal with the PMA standard on reducing underrepresentation
and implementing programs to sustain diversity. Some of these are
described in figure 5:
Figure 5: Selected HCAAF Elements Relating to the PMA Standard of
Reducing Underrepresentation and Establishing a Process to Sustain
Workforce Diversity:
* The agency identifies and monitors any underrepresentation of
minorities, women, disabled veterans, and individuals with severe
disabilities. The agency develops and implements diversity outreach
plans to improve representation. The agency tracks and analyzes
workforce diversity trends;
* The agency analyzes workforce demographics in mission-critical
occupations, including the size and distribution of workforce by
grade/series/geographical location, type of positions occupied, pay
plan, average age, average grade, retirement (eligible and expected),
separations, turnover, etc;
* The agency has a comprehensive strategic workforce plan that
addresses both current and future workforce competency requirements.
Human capital strategies are derived from workforce demographic
studies, agency staffing information, competitive sourcing studies, and
analyses of the effectiveness and efficiency of the agency's
organizational structure. Human capital workforce strategies include
descriptions for recruiting, hiring, deployment, retention, and other
staffing initiatives;
* An analysis of workforce demographics (including the Senior Executive
Service) helps inform succession plans. The analysis includes data such
as average grade/age/length of service, distribution of the workforce
(by series, grade, gender, race/national origin, and supervisory
status), turnover rates, and retirement eligibility;
* The agency monitors the use of competitive and noncompetitive
appointments and promotions, temporary appointments, conversions, etc.,
including a breakdown by race/national origin and gender for compliance
with merit system principles and avoidance of prohibited personnel
practices;
* The agency has mechanisms in place to track and evaluate recruitment,
hiring, merit promotion, and retention activities. The demographics of
candidates (age, race/national origin, and gender) are compared with
the demographics of the agency workforce.[A];
* The agency tracks statistical data related to separations for
performance, the number of removals and downgrades, and the number of
denials of within-grade increases.
Source: Human Capital Accountability and Assessment Framework.
[A] OPM takes the position that agencies are not required to collect
race, national origin, gender, and age information on applicants.
[End of figure]
OPM Oversight:
In carrying out its oversight responsibilities, OPM reviews the reports
that agencies submit for the FEORP, for the DVAAP, and in response to
Executive Order No. 13171 relating to Hispanic employment in the
federal government. In addition, OPM will review CPDF data in
conjunction with its review of agencies' FEORP submissions. For the
FEORP, OPM will analyze agencies' workforces by Professional,
Administrative, Technical, Clerical, Other White-collar, and Blue-
collar (PATCOB) occupational categories to determine where
underrepresentation may exist. In addition, OPM provides federal
agencies with CPDF data on the employment of disabled veterans so that
agencies can identify problem areas and deficiencies in the employment
of such veterans.
OPM also exercises oversight through on-site audits of federal
agencies' human capital operations on a regular schedule, with an audit
of each agency about once every 3 years, according to OPM officials.
These audits focus on compliance with the merit system principles,
according to OPM officials, and thus they have an EEO element, since
nondiscrimination is part of the merit system principles. The audits
have included an evaluation of agencies' EEO efforts, according to
OPM's Oversight & Effectiveness Evaluation Handbook. The "compliance
core" of each audit includes verification that an agency has a FEORP
program and a program for affirmative employment. According to a senior
OPM official, OPM plans to expand its coverage of affirmative
employment and EEO in its audits, in view of the implementation of the
HCAAF and the PMA. During fiscal years 2001 to 2003, OPM conducted 336
on-site reviews.
OPM has also instituted direct and continuing oversight of federal
agencies through a network of Human Capital Officers (HCOs) who work
with agencies' human capital staff, according to OPM officials. A
senior OPM official said that a major responsibility for each HCO is to
monitor agencies' compliance with the HCAAF and the human capital
standards of the PMA. The HCOs examine workforce diversity as a part of
their continuing review of human capital programs because it is an
integral element of both the HCAAF and PMA standards. In particular,
according to senior OPM officials, the HCOs analyze workforce data from
the CPDF and from relevant responses to the OPM Human Capital Survey,
and will also examine information from the FEORP and other reports. The
HCOs then evaluate agencies' diversity plans to alleviate weaknesses in
the agencies' present diversity status. The HCOs also participate in
quarterly meetings with agency, OPM, and OMB staff, during which the
agencies' progress according to PMA standards is evaluated.
The HCOs also provide agencies with advice and guidance concerning
their performance plans and programs. In addition, OPM provides federal
agencies with guidance and technical assistance related to EEO through
publications such as its guide on workforce diversity[Footnote 49] and
other information available on its Web site, and through its training
courses that cover many aspects of human capital management, including
affirmative employment and diversity.
OPM Reporting:
OPM prepares several reports containing workforce demographics,
including data on minorities, women, and persons with disabilities in
the federal workforce. The Fact Book contains general statistical
information on the federal workforce. It includes employment data for
women, minorities, and persons with disabilities for the executive
branch as a whole and also broken down by department, PATCO[Footnote
50] occupational category, and GS grade. It also has a comparison of
the representation of minorities and women in federal civilian
employment with their composition in the CLF.
The annual OPM FEORP report also contains statistical information on
women and minorities in the federal workforce (it does not include
statistics on persons with disabilities). OPM derives these data
directly from the CPDF. There is a comparison of federal minority and
women representation with the CLF, as in The Fact Book, which shows
their distribution by PATCOB occupational categories. The FEORP report
also has a comparison of the women and minority representation in 18
executive departments and 21 independent agencies with the relevant CLF
for that agency. In addition to the statistical reporting and analysis,
the FEORP report contains descriptions of selected initiatives that
agencies reported to have taken in support of FEORP. The annual Report
on Employment of Veterans in the Federal Government is similar to the
FEORP report but is focused on disabled and other veterans.
In 2001 OPM began reporting separately on Hispanic federal employment.
OPM has issued semiannual statistical data reports on Hispanic
employment, which include data on Hispanics in federal employment
governmentwide and in selected agencies, and on new Hispanic hiring,
both in general and under two programs: the Student Career Experience
Program and the Bilingual/Bicultural Program. As required by Executive
Order No. 13171, OPM also issues an annual report on Hispanic federal
employment. This report combines a semiannual report with a detailed
review of practices that affect Hispanic representation in the federal
workforce, specifically in the areas of community outreach,
recruitment, career development, and accountability.
Coordination of Federal EEO Activities:
In recognition of the fact that multiple agencies are involved in
carrying out federal employment laws and policy, EEOC was given
leadership for all federal EEO programs and activities. Reorganization
Plan No. 1 of 1978, which was implemented in 1979, made EEOC the
principal federal agency responsible for enforcing federal EEO laws for
the public and private sectors. The plan also abolished the Equal
Employment Opportunity Coordinating Council[Footnote 51] and
transferred its duties under 42 U.S.C. section 2000e-14 to EEOC. The
Council had been responsible for promoting efficiency and eliminating
conflict, competition, duplication, and inconsistency in the
implementation and enforcement of EEO legislation, orders, and
policies.
Executive Order No. 12067, Providing for Coordination of Federal Equal
Employment Opportunity Programs, which was issued in 1978, implemented
the Reorganization Plan, detailed coordination principles, and
clarified EEOC's role in this regard.[Footnote 52] Under this order,
EEOC is to:
* provide leadership and coordination to the efforts of federal
departments and agencies to enforce all federal statutes, executive
orders, regulations, and policies that require EEO; and:
* strive to maximize effort, promote efficiency, and eliminate
conflict, competition, duplication, and inconsistency among the
operations, functions, and jurisdictions of the federal departments and
agencies having responsibility for enforcing such statutes, executive
orders, regulations, and policies.
In addition, EEOC is to consult with and utilize the special expertise
of federal departments and agencies with EEO responsibilities and
cooperate with such departments and agencies in the discharge of their
equal employment responsibilities.
In a forthcoming report, we will discuss how EEOC and OPM coordinate
with each other in developing policy, providing guidance, and
exercising oversight in the areas of EEO, affirmative employment, and
workforce diversity. That report will also present results from a
governmentwide survey of EEO and human capital professionals, including
their experiences and views of the various requirements placed on them;
the extent to which they believe these requirements contribute to their
agencies' EEO, affirmative employment, and workforce diversity
objectives; and the extent to which assistance from EEOC and OPM has
helped their agency in achieving the stated objectives.
Agency Comments and Our Evaluation:
We provided EEOC and OPM with a draft of this report for their review
and comment. In written comments, the Director of EEOC's Office of
Federal Operations said that, in several respects, the report did not
fully reflect EEOC's roles, responsibilities, and activities in the
federal workplace. Overall, we believe that the report accurately
reflects EEOC's role and responsibilities within the EEO framework.
However, one major area of responsibility that EEOC noted was not fully
reflected in this report relates to its adjudication of federal
employee discrimination complaints. We concur that EEOC plays an
important role in this area. We previously reported on EEOC's
complaints management responsibilities and have clarified the report to
note that that these responsibilities are not discussed in depth. EEOC
also provided technical comments, which we incorporated in the report
where appropriate.
OPM provided comments in an e-mail from the Deputy Chief of Staff,
Office of the Director. OPM said that, in general, the report
accurately reflects OPM's current roles and responsibilities. OPM
provided technical comments, which we incorporated in the report where
appropriate.
As agreed with your office, unless you release the report's contents
earlier, we plan no further distribution of it until 30 days from its
issue date. We will then send copies to the Chair of EEOC, the Acting
Director of OPM, and other interested parties. Copies will be made
available to others upon request. This report will also be 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. Other staff who made major contributions
to this report are listed in appendix III.
Sincerely yours,
Signed by:
George H. Stalcup:
Director, Strategic Issues:
[End of section]
Appendix I: Objectives, Scope, and Methodology:
Our objectives were to identify (1) the statutory framework under which
the Equal Employment Opportunity Commission (EEOC), the Office of
Personnel Management (OPM), and line agencies operate in promoting
equal employment opportunity (EEO) and pursuing affirmative employment
and workforce diversity objectives and (2) the roles and
responsibilities of EEOC and OPM within the framework and how these
agencies carry out these roles and responsibilities. This report
primarily focuses on EEOC's affirmative employment responsibilities
within the framework. We previously reported on EEOC's roles and
responsibilities for establishing procedures for handling federal
employees' allegations of discrimination and providing for the
adjudication of complaints and hearing appeals.[Footnote 53]
For our first objective, we reviewed those sections of the U.S. Code
and executive orders that pertain to EEO, affirmative employment, and
workforce diversity in the executive branch of the federal government.
Although the application of EEO laws varies between the three branches
(executive, legislative, and judicial) of the federal government, we
focused primarily on the EEO framework applicable to the executive
branch. We also reviewed other presidential policies and documents,
including Reorganization Plan No. 1 of 1978 and the President's
Management Agenda (PMA).
For our second objective, we reviewed the provisions of statutes,
executive orders, and policies that assigned oversight duties and
responsibilities to EEOC and OPM. In addition, we reviewed the Code of
Federal Regulations and policy directives or standards issued by EEOC
and OPM to supplement the requirements of statutes and executive
orders. These included the following:
* EEOC Management Directives (MDs) dealing with affirmative employment.
In October 2003, during the course of our review, EEOC issued MD-715,
which, issued under EEOC's authority granted by title VII of the Civil
Rights Act of 1964 and section 501 of the Rehabilitation Act of 1973,
set forth guidance on affirmative employment for federal agencies. MD-
715 superseded MD-712 and MD-713, dealing with persons with
disabilities, and MD-714, dealing with minorities and women.
* The regulations that OPM promulgated, under its authority granted by
the Civil Service Reform Act of 1978, for the Federal Equal Opportunity
Recruitment Program for the recruitment of minorities and women.
* The regulations that OPM promulgated, under its authority granted by
the Vietnam Era Veterans' Readjustment Assistance Act, for the Disabled
Veterans Affirmative Action Program.
* Instructions that OPM issued for implementing the requirements of
Executive Order No. 13171, Hispanic Employment in the Federal
Government.
* The Human Capital Assessment and Accountability Framework, which OPM
uses to evaluate agencies on their human capital performance.
* The human capital section of the PMA. The Office of Management and
Budget uses a scorecard based on this agenda to evaluate agencies'
overall management performance and has delegated the human capital
portion of the scorecard review to OPM.
We also spoke with EEOC officials at the senior and staff levels
involved in oversight. At OPM, our discussions were generally limited
to senior staff responsible for supervising oversight. We also reviewed
guidance provided for these staff. We discussed our observations with
senior officials of EEOC and OPM.
We did our work from March 2003 through February 2005, in accordance
with generally accepted government auditing standards.
[End of section]
Appendix II: Comments from the U.S. Equal Employment Opportunity
Commission:
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION:
Washington, D.C. 20507:
March 31, 2005:
Mr. George Stalcup:
Director, Strategic Issues:
U.S. Government Accountability Office:
Washington, D.C. 20548:
Dear Mr. Stalcup:
Thank you for providing EEOC the opportunity to submit comments on the
Government Accountability Office's (GAO) proposed report entitled Equal
Employment Opportunity: The Policy Framework in the Federal Workplace
and the Roles of EEOC and OPM (GAO-05-195). We have several comments on
this proposed report.
We believe that the report in several respects does not fully reflect
EEOC's roles, responsibilities and activities in the federal workplace.
EEOC, by federal statute and Executive order, has primary
responsibility for leadership and coordination of the oversight of the
EEO programs of federal agencies.
Moreover, EEOC has primary responsibility for the enforcement of anti-
discrimination laws in the federal sector, playing a central and unique
role in adjudicating cases of employment discrimination by providing
hearings at the investigative stage, reviewing appeals from final
action taken by agencies in discrimination complaints, and by issuing
binding decisions on federal agencies.
In FY 2004 alone, EEOC processed over 11,000 hearing requests and 8,000
appeals. Yet, Management Directive 110, one of EEOC's most significant
policy directives for the federal sector, is mentioned only in a
footnote. By contrast, OPM's five policy initiatives (FEORP, DVAAP,
E.O. 13171, E.O. 13163, and the Presidential Management Agenda (PMA))
are discussed in the text.
The table which sets forth EEOC's key roles does not include EEOC's
hearings and appeal complaint adjudication roles. It also omits EEOC's
outreach and technical assistance to the federal workforce on the
requirements of Title VII, the Rehabilitation Act, the Age
Discrimination in Employment Act and the Equal Pay Act. This has been
an area in which EEOC has significantly increased its efforts.
I note that EEOC has completed its evaluation of the Relationship
Management Project mentioned in the report. Based on the results of the
project, EEOC has expanded the project to include six additional
agencies.
We have several other specific editorial comments, which we have
enclosed as an attachment to this letter.
Thank you for the opportunity to provide comments to this report.
Sincerely,
Signed by:
Carlton M. Hadden:
Director, Office Federal Operations:
Attachment:
Attachment:
Additional comments on GAO's proposed report entitled Equal Employment
Opportunity: The Policy Framework in the Federal Workplace and the
Roles of EEOC and OPM (GAO-05-195):
Page 1, Paragraph 1: The wording of this section suggests that § 717
only prohibits illegal discrimination and established a redress
program, when, in fact, it requires much more, including training.
Page 3, Paragraph 2: The report should define the term
"underrepresentation."
Page 4: The report should add the Age Discrimination in Employment Act
and the Equal Pay Act as statutes that EEOC enforces.
Page 19: Table 2 does not adequately describe the Model EEO Program as
set forth in EEOC's Management Directive 715.
[End of section]
Appendix III: GAO Contacts and Staff Acknowledgments:
GAO Contacts:
George H. Stalcup (202) 512-9490, StalcupG@gao.gov;
Belva M. Martin (202) 512-4285, MartinB@gao.gov:
Acknowledgments:
Additional staff who made major contributions to this report were
Steven J. Berke, Karin Fangman, Anthony P. Lofaro, Anthony Patterson,
and Amy Rosewarne.
FOOTNOTES
[1] Federal employees also have legal protections against reprisal,
such as for whistleblowing on waste, fraud, and abuse.
[2] Although EEOC and OPM are primarily responsible for the enforcement
of federal EEO law and policy in the federal workplace, three other
agencies--the Office of Special Counsel, the Merit Systems Protection
Board, and the Federal Labor Relations Authority--also play a role in
ensuring EEO in the federal workplace.
[3] GAO, Equal Employment Opportunity: Discrimination Complaint
Caseloads and Underlying Causes Require EEOC's Sustained Attention,
GAO/T-GGD-00-104 (Washington, D.C.: Mar. 29, 2000) and Equal Employment
Opportunity: Complaint Caseloads Rising, with Effects on Future Trends
Unclear, GAO/GGD-99-128 (Washington, D.C.: Aug. 16, 1999).
[4] GAO, Diversity Management: Expert-Identified Leading Practices and
Agency Examples, GAO-05-90 (Washington, D.C.: Jan. 14, 2005).
[5] The application of EEO laws varies between the three branches
(executive, legislative, and judicial) of the federal government. This
report focuses primarily on the EEO framework applicable to the
executive branch.
[6] Pub. L. No. 88-352, title VII, 78 Stat. 241, 253-266 (July 2,
1964).
[7] 43 Fed. Reg. 19,807, 92 Stat. 3781 (Feb. 23, 1978).
[8] Staff of Subcomm. on Labor of the Senate Comm. on Labor and Public
Welfare, 92nd Cong., Legislative History of the Equal Employment
Opportunity Act of 1972 (Comm. Print 1972), at 82-86 and 421-425.
[9] MSPB is an independent federal agency that adjudicates employee
appeals of personnel actions and conducts studies of the federal civil
service and other merit systems in the executive branch.
[10] GAO, Senior Executive Service: Diversity Increased in the Past
Decade, GAO-01-377 (Washington, D.C.: Mar. 16, 2001).
[11] GAO, Senior Executive Service: Enhanced Agency Efforts Needed to
Improve Diversity as the Senior Corps Turns Over, GAO-03-34
(Washington, D.C.: Jan. 17, 2003).
[12] Although the application of EEO laws varies between the three
branches (executive, legislative, and judicial) of the federal
government, this report focuses primarily on the EEO framework
applicable to the executive branch.
[13] Exec. Order No. 11478, 34 Fed. Reg. 12,985 (Aug. 8, 1969).
[14] Pub. L. No. 92-261, sec. 11, 86 Stat. 103, 111-112 (Mar. 24,
1972), codified at 42 U.S.C. sec. 2000e-16.
[15] Pub. L. No. 93-112, sec. 501, 87 Stat. 355, 390-391 (Sept. 26,
1973), codified at 29 U.S.C. sec. 791.
[16] Pub. L. No. 93-508, sec. 403, 88 Stat. 1578, 1593 (Dec. 3, 1974)
codified at 38 U.S.C. sec. 4214.
[17] Exec. Order No. 13163, 65 Fed. Reg. 46,563 (July 26, 2000).
[18] Exec. Order No. 13164, 65 Fed. Reg. 46,565 (July 26, 2000).
[19] Pub. L. No. 95-454, 92 Stat. 1111 (Oct. 13, 1978).
[20] 5 U.S.C. sec. 2301.
[21] 5 U.S.C. sec. 2302.
[22] "Underrepresentation is a situation in which the number of members
of a minority group designation (determined by the Equal Employment
Opportunity Commission in consultation with the Office of Personnel
Management) within a category of civil service employment constitutes a
lower percentage of the total number of employees within the employment
category than the percentage that the minority group constituted within
the labor force of the United States, as determined under the most
recent decennial or mid-decade census, or current population survey."
(5 U.S.C. sec. 7201(a)(1)).
[23] 5 U.S.C. sec. 7201.
[24] Exec. Order No. 13171, 65 Fed. Reg. 61,251 (Oct. 12, 2000).
[25] Pub. L. No. 107-174, 116 Stat. 566 (May 15, 2002).
[26] The requirements of the No FEAR Act went into effect October 1,
2003.
[27] Pub. L. No. 88-38, 77 Stat. 56 (June 10, 1963). See 29 U.S.C. sec.
206 (d).
[28] Pub. L. No. 90-202, 81 Stat. 602 (Dec. 15, 1967), amended by Pub.
L. No. 93-259, sec. 28, 88 Stat. 55, 74-75 (Apr. 8, 1974). See 29
U.S.C. secs. 621-634.
[29] Regulations setting forth the policies and procedures for
discrimination complaints are contained in 29 C.F.R. part 1614.
Additional policies, procedures, and guidance relating to the
processing of employment discrimination complaints are contained in
EEOC Management Directive 110.
[30] We previously reported on EEOC's complaints management
responsibilities (GAO/T-GGD-00-104 and GAO/GGD-99-128).
[31] EEOC regulations, 29 C.F.R. part 1614, establish the requirements
for processing and adjudicating EEO complaints but also provide general
guidance on agencies' EEO programs.
[32] According to EEOC, MD-715 reflected recent and significant changes
in the law, including Supreme Court decisions, at the time it was
issued.
[33] Up through fiscal year 2002, agencies were required to file a
report for women and minorities under MD-714 and a separate report for
persons with disabilities under MD-713. The final reports under MD-713
and 714 were for fiscal year 2002. In order to facilitate the
transition to MD-715, EEOC did not require agency reports for fiscal
year 2003. The first reports required under MD-715 covering fiscal year
2004 were to have been filed by January 31, 2005. According to EEOC,
120 agencies and 81 major subcomponents of certain agencies were
required to file reports under MD-715 for fiscal year 2004. As of April
12, 2005, 125 of 201 required reports from agencies and major
subcomponents had been filed with EEOC.
[34] EEOC has not been assigned responsibility for any elements of the
PMA. EPCA, if implemented, would involve a separate process.
[35] EEOC, Policy Guidance on Executive Order 13164: Establishing
Procedures to Facilitate the Provision of Reasonable Accommodation
(Oct. 20, 2000).
[36] In previous annual reports, EEOC compared federal workforce data
to the CLF and also reported data by Professional, Administrative,
Technical, Clerical, Other White-collar, and Blue-collar (PATCOB)
occupational categories.
[37] 43 Fed. Reg. 36,037, 92 Stat. 3783 (May 23, 1978).
[38] 5 U.S.C. sec. 1103(a)(5).
[39] 38 U.S.C. sec. 4214.
[40] See 5 U.S.C. sec. 7201 and 5 C.F.R. part 720, subparts A and B.
[41] The CSRA established the FEORP to address minority
underrepresentation through a continuing recruitment program, and OPM,
through it regulations, requires agencies' recruiting programs to
include women as well. 5 C.F.R. sec. 720.205.
[42] 5 C.F.R. sec. 720.205 (a).
[43] 5 C.F.R. sec. 720.207.
[44] OPM requires annual FEORP reports from agencies with employees in
the General Schedule, Federal Wage System, or Senior Level pay plans
(the latter including the Senior Executive Service and equivalent pay
plans but not those under the Executive Schedule). According to OPM's
fiscal year 2003 report on the FEORP, 70 agencies were required to file
FEORP reports in that year. As of July 13, 2004, 43 agencies had
submitted fiscal year 2003 FEORP reports to OPM.
[45] 5 C.F.R. part 720, subpart C.
[46] According to OPM's fiscal year 2003 report, 87 agencies were
required to submit DVAAP accomplishment reports.
[47] Some of the elements of the Nine-Point Plan are supporting and
implementing the White House Initiative on Educational Excellence for
Hispanic Americans; providing students, faculty, and the Hispanic
community with employment information; and promoting participation of
Hispanic employees in career development programs.
[48] Pub. L. No. 103-62, 107 Stat. 285 (Aug, 3, 1993).
[49] OPM, Building and Maintaining a Diverse, High-Quality Workforce: A
Guide for Federal Agencies.
[50] PATCOB, not including blue-collar workers.
[51] The 1972 Equal Employment Opportunity Act established the Equal
Employment Opportunity Coordinating Council. In addition to the EEOC
Chairman, the Council was composed of the Secretary of Labor, the
Attorney General, the Chairman of the Civil Service Commission (the
predecessor to OPM), and the Chairman of the U.S. Civil Rights
Commission.
[52] Exec. Order No. 12067, 43 Fed. Reg. 28,967 (June 30, 1978).
[53] GAO/T-GGD-00-104 and GAO/GGD-99-128.
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