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By: FEDweek StaffFollowing is the executive summary of a recent EEOC report on alternative dispute resolution practices.
In our sample of 24 agencies, approximately 40% of agencies’ ADR policies were incomplete. Failing to state the timeline involved in the ADR process was the most common policy deficiency discovered during a review of agencies’ policies. Analysis of technical assistance visits from the EEOC’s Agency Oversight Division (AOD) showed that only 4.3% of agencies AOD visited had an ADR program deficiency in FY 2019.
Across the 24 Federal agencies sampled in FY 2019, there were approximately 30,029 completed counselings, with the vast majority (27,492) offering ADR. Data varied:
• During the formal complaint phase, which begins with the filing of an official complaint of harassment or discrimination, the average offer rate at large agencies (35.4%) was more than double the offer rate at small (12.5%) and midsize (8.7%) agencies. This difference may reflect the fact that larger agencies tend to have more resources available.
• The settlement rate in the formal phase (37.9%) was more than double the rate in the informal counseling phase (16.1%). This suggests that agencies were less willing to negotiate without a formal complaint being filed.
• The average withdrawal rate was 24.6% during the counseling phase, compared to 6.7% during the formal phase. This may suggest that complainants hardened their resolve to follow through on their complaints.
• Small agencies, on average, had a withdrawal rate of zero during the formal complaint 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 relationship 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:
• The survey found that about 60% of agencies did not provide ADR in sexual harassment complaints and roughly 80% of agencies did not offer ADR for other reasons, which included complaints regarding selections, criminal history, and medical and security clearance issues.
• Both the survey and focus groups discussions revealed that 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 program in the eyes of complainants:
• Nearly 19% 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%, did not routinely provide annual, agency-wide ADR training and approximately 70% of agencies did not provide annual ADR training to agency leaders.
One positive finding is that the vast majority of agencies (95%) stated that they ensured that the settlement authority was available during active ADR sessions.
Recommendations
• To address the issues found in this analysis, the EEOC researchers recommend that agencies:
Update their ADR policies every three years at a minimum.
• Hold regular (e.g., quarterly) ADR status briefings with senior agency leaders to discuss successes and concerns.
• Review and share, on a quarterly basis, agency-wide aggregate ADR data, such as acceptance, participation, and declination rates.
• Improve collaboration between EEO and ADR programs.
• Develop a required annual training course for ADR program administration.
The EEOC researchers also recommend ADR training for agency managers, staff, and mediators:
• Provide frequent (e.g., quarterly) ADR awareness training.
• Train settlement officials on roles and responsibilities.
• Ensure that shared neutrals have completed basic meditation skills training.
• Ensure that all EEO Collateral Duty Counselors are certified mediators.
Lastly, OFO should consider additional research to better understand differences between the formal and informal phases and among agency sizes. EEOC researchers recommend that technical assistance visits place greater emphasis on ADR program effectiveness. The AOD should forward deficiencies to the EEOC’s Special Operations Division (SOD) for action.
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