By Godson Umejego, Bureau Chief, The Americas
Results Show Federal Agencies Usually Offered ADR During EEO Counseling, But 40% of ADR Policies Were Incomplete
The US Equal Employment Opportunity Commission (EEOC) has issued a research report, Alternative Dispute Resolution in the Federal Sector, which provides comprehensive information and data on the effectiveness of federal Alternative Dispute Resolution (ADR) programmes and their practices in fiscal year (FY) 2019. The report sampled 24 federal agencies through conducting focus groups and a survey of equal employment opportunity (EEO) directors and ADR programme managers.
“Alternate dispute resolution remains a vital option in EEO process,” said Dexter Brooks, associate director of the EEOC’s Office of Federal Operations. “Mutually acceptable resolution creates an opportunity for the parties to find a way forward. This report highlights areas for ADR programmes to continue improvement of operations.”
Main findings from this report include:
Approximately 40 per cent of agencies’ ADR policies were incomplete in FY 2019. Failing to state the timeline involved in the ADR process was the most common policy deficiency discovered during a review of agencies’ policies.
There were approximately 30,029 completed informal resolution efforts, or counselings, with the vast majority (27,492) offering ADR. Data varied by agency size, however.
During the formal complaint phase, which begins with the filing of an official complaint of harassment or discrimination, the average offer to participate in ADR at large agencies (35.4%) was more than double the offer rate at small (12.5%) and midsize (8.7%) agencies. This may reflect the fact that larger agencies tend to have more resources available.
The settlement rate during the formal complaint phase (37.9%) was more than double the rate during the informal counseling phase (16.1%). This suggests that agencies were more willing to negotiate when an employee files a formal complaint.
The average withdrawal rate was 24.6 per cent during the counseling phase, compared to 6.7 per cent during the formal phase.
Survey results showed that agencies typically updated their ADR policies and procedures every three years. A third of agencies did not conduct regular self-assessments of their program’s effectiveness. Nearly a quarter of agencies did not annually evaluate their programs at all.
Focus groups revealed that little information existed on the correlation between participation in ADR and employee retention rates. Agencies had not tracked the turnover of complainants following their participation in ADR.
Agencies often did not offer ADR in these instances:
60 per cent of agencies did not provide ADR in sexual harassment complaints and roughly 80 per cent of agencies did not offer ADR for other reasons, which included complaints regarding selections, criminal history, and medical and security clearance issues.
ADR is generally not offered when the complaint came from a non-employee (e.g., applicant or contractor).
Furthermore, certain agency actions may delegitimize the ADR programme in the eyes of complainants. Of the agencies surveyed:
Nearly 19 per cent of agencies allowed the manager accused in the complaint to be the settlement authority.
Nearly a quarter of agencies did not require managers and management officials to participate in ADR.
A majority of agencies, about 80 per cent, did not routinely provide annual, agencywide ADR training, and approximately 70 per cent of agencies did not provide annual ADR training to agency leaders.
One positive finding is that the vast majority of agencies surveyed (95%) stated that they ensured that the settlement authority was available during active ADR sessions.
The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination.
