Federal employees can resolve EEO complaints without litigation. But is the alternative process fair?

If a federal employee is considering filing an equal employment opportunity complaint, alternative dispute resolution is a process available to them that could resolve their issue without litigation. But an August Equal Employment Opportunity Commission report on the federal government’s use of ADR found that agencies may not be implementing it in a way that makes complainants trust the option. 

Under ADR, a neutral entity helps parties reach agreement through techniques like mediation. It can reduce conflict, cost and delays. 

Since 2000, every agency has been required to provide its employees with access to an ADR program both during the pre-EEO complaint and formal complaint stages. EEOC advises agencies on how to run their ADR programs and hears appeals. 

“EEOC has always been involved with trying to prevent and resolve discrimination cases, and if conciliation, one of their processes, doesn't work, then it often or can lead to litigation,” said Stephen Paskoff, who has been involved with EEO issues since 1974 both as a former EEOC litigator and head of a human capital consulting firm. 

A survey EEOC conducted as part of the report found that 46 out of the 72 complainants who responded felt the ADR process was not fair. In contrast, 21 of the 23 manager respondents said the opposite.  

Out of a possible survey size of about two million federal employees, only 217 responded to the survey. So EEOC did not use results to produce findings or recommendations. 

“I want to know more,” Paskoff said. “But the people may have felt that they weren't fairly heard or fairly represented, or possibly that the mediators were siding with the respondent or government representatives rather than with them. It's hard to tell.”

Notably, 17 complainants who responded to the survey said that retaliation after participating in ADR had caused them to consider leaving the federal workforce. 

A similar report from EEOC in fiscal 2021 found that approximately 40% of federal agencies in fiscal 2019 had incomplete ADR policies, with failing to state the timeline involved in the process being the most common issue. 

That report also found that:

• A third of agencies did not regularly self-assess their program’s effectiveness. 
• 60% of agencies did not provide ADR for sexual harassment complaints. 
• Almost 19% of agencies permitted the manager accused in the complaint to be the settlement authority and nearly a quarter did not require managers to participate in ADR.

August’s report also found that ADR was offered to and accepted by complainants significantly more during the pre-complaint than the complaint stage. 

Referencing a line in the report, Paskoff said this is “likely because during the pre-complaint phase both parties may still have an opportunity to preserve their relationships and prevent an escalation of conflict.”

EEOC recommended that: 

• Agencies ensure employees and managers receive annual training on ADR. 
• Leaders show support for the process by publicizing the agency’s ADR policy statement. 
• Agencies create a tool to collect feedback after the mediation process. 

Paskoff also pointed out that having EEO rules and guidelines aren’t enough. Agencies actually have to follow them. 

“In the work we do, one of the things that we should say is the best form of alternative dispute resolution is to resolve it before the other forms of dispute resolution are needed,” he said. “Get people to talk about it. If people are doing things that are grossly wrong, that should be called out and raised immediately, which is a cultural standard that is too often said but not embedded into organizational processes in the way things actually work.”

Editor's note: The article has been updated to clarify how agencies administer their alternative dispute resolution processes.