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EEOC Issues Report on Alternative Dispute Resolution (ADR) in the Federal Sector

March 29, 2023
Source: U.S. Equal Employment Opportunity Commission (EEOC)

Results Show Federal Agencies Usually Offered ADR During EEO Counseling, But 40% of ADR Policies Were Incomplete

The U.S. Equal Employment Opportunity Commission (EEOC) today 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) programs 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 program 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 programs to continue improvement of operations.”

Main findings from this report include:

  • Approximately 40% 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% during the counseling phase, compared to 6.7% 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% 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.
  • 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. Of the agencies surveyed:

  • 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, agencywide 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 surveyed (95%) stated that they ensured that the settlement authority was available during active ADR sessions.

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