8. FEDERAL CIVILIAN EMPLOYMENT AFFIRMATIVE ACTION
8.1 History and Results
In 1969, President Nixon issued an executive order that required
the Federal agencies to establish Federal Affirmative Employment
Programs to foster equal employment opportunity for minorities
and women. These programs have had a statutory basis since 1972.
In 1994 alone, there were 68 agency plans filed.
Since 1978, the Equal Employment Opportunity Commission (EEOC)
has had advisory authority for these affirmative employment functions,
including the responsibility to review and approve annual equal
opportunity plans submitted by each agency. (EEOC collects information
and evaluates the work of the agencies, and has a role in adjudication
of individual discrimination complaints. It has no broad enforcement
authority, and cannot require agencies to change their mode of
operation.) EEOC has implemented the various federal affirmative
employment program requirements through a series of Management
Directives ("MDs"). The first, MD-707, issued in 1981,
instructed Federal agencies to submit equal employment plans for
a five-year period. It required each agency to determine whether
minorities and women were underrepresented in various employment
categories and to set annual goals for underrepresented groups
in categories where vacancies were expected.
In 1987, EEOC issued MD-714, which eliminated the requirement
that agencies set goals. MD-714 placed greater emphasis on the
identification and removal of barriers to the advancement of women
and minorities. It instructed agencies to devise flexible approaches
to improving the representation of women and minorities in their
workforces.
In 1993 and 1994, EEOC staff drafted MD-715 to succeed MD-714
and circulated it to agencies for comment. Among other things,
the draft Directive proposes: (i) consolidating all Directives
into one; (ii) reducing reporting requirements; (iii) requiring
agency heads to hold senior and program managers accountable for
the accomplishment of agency objectives through their actions
and performance appraisals; (iv) eliminating any requirement for
the use of goals; and (v) requiring the reporting of discharge
or separation rates for minorities, women, and people with disabilities,
to allow greater emphasis of retention trends.
EEOC has found no single answer to the challenge of overcoming
barriers to minorities, women, and people with disabilities in
the Federal government. Agencies have unique workforces, and barriers
to equal employment opportunity vary from one organization to
another. Successes are gradual in nature and depend considerably
on the good will engendered in the Federal executives who manage
these programs.
In the Federal agencies, minorities comprise a relatively large
proportion of the workforce -- roughly 30 percent, compared to
22 percent of the nation's overall workforce. Between 1982 and
1993 overall (white collar and blue collar) and white collar employment
of women and every minority group has steadily increased. White
women and Hispanics are the only groups whose employment in the
overall federal workforce and in white collar ranks remains below
their availability in the overall and white collar civilian labor
force. Minorities and women continue to be disproportionately
employed in clerical jobs and in the lower grade levels of other
occupational series. In FY 1993, for example, 85.98 percent of
clerical jobs were held by women and 39.48 percent by minorities,
while their employment in the Professional workforce was 34.57
percent and 18.08 percent, respectively.
While employment of women and minorities in the Federal workforce
has increased, their representation falls as grade level rises.
In FY 1993, women comprised 72.90 percent and minorities 38.15
percent of employees in grades 1-8, while 16.16 percent of GS/GM-15
employees were women and 12.04 percent were minorities. In the
same year, 13.40 percent of Senior Executive Service (SES) employees
were women and 8.5 percent were minorities.
For purposes of this review, EEOC selected and reviewed a cross-section
of six agencies that had demonstrated creative ways of addressing
equal employment opportunity (ranging in size and variety of job
categories): Department of the Navy, Smithsonian Institution,
Defense Intelligence Agency, NASA, Pension Benefit Guaranty Corporation,
and Health and Human Services. The key observations were:
- Each agency described an aggressive affirmative employment program
-- including targeting sources, requiring recruiters to consider
and report, management awareness/accountability, external and
internal communications strategies -- which had achieved modest
success rates.
- Available data are limited to the numbers and percentages of minorities
and women employed by grade level by year; no systematic data
exist about effects on bystanders, the nature or resolution of
complaints, or the actual operation of minority preferences in
hiring and promotion.
- Several agencies expressed the belief that agency educational
efforts are effective in ameliorating white-male concerns (which
are palpable in each agency), but this belief was purely anecdotal.
The officials we interviewed admitted that truly disgruntled employees
might not attend such voluntary town-hall meetings or workshops.
- Agencies subject to downsizing face special pressures which have
reduced gains.
- Those agencies with high percentages of professional or technical
jobs attribute their limited progress in minority hiring and promotion
in higher grades to competition with the private sector for a
limited labor pool.
- Several agencies measure carefully the number of women and minority
participants in their SES Candidate Development Programs.
8.2 Summary Profiles for Selected Agencies
8.2.1 Department of the Navy (DON)
The Secretary of the Navy has directed action on eight initiatives
to improve the civilian Equal Employment Opportunity program.
These include centrally coordinated recruitment programs at selected
Historically Black Colleges and Universities and minority institutions;
expanded intern and cooperative education programs; new approaches
to the development of employees in the pipeline with particular
focus on minorities and women in grades 9 through 15; special
recruitment plans for Senior Executive Service positions; and
alternative complaint resolution efforts.
Continuous downsizing and restructuring of the DON have significantly
reduced intake and promotion opportunities. DON had made some
gains in moving women and minorities into the higher grade levels
of GS 13-15 and SES in the last two years but downsizing eliminated
many of these gains. The major portion of senior-level white collar
positions are in science and engineering. Until the labor market
increases significantly, DON expects to continue to compete unsuccessfully
with the private sector within a limited market.
8.2.2 Pension Benefit Guaranty Corporation (PBGC)
To improve minority and women recruitment, PBGC has (i) contacted
viable recruitment sources and required the recruiting staff to
discuss with each selecting official the use of those sources
each time a vacancy occurs; (ii) issued quarterly EEO statistics
to each office as a reminder of its status in comparison to that
of the entire PBGC; and (iii) established a Workforce Diversity
Board.
According to EEOC, PBGC has a good record for employing blacks
at all grade levels and in Professional and Administrative categories,
an average but improving record for employing women at all grade
levels and a good record for employing women in the Professional
occupations. According to PBGC, during the last year women and
minorities were promoted at a slower rate that men and nonminorities,
particularly above grade GS-9, but that the rate was within 20
percent of the rate for men and nonminorities.
8.2.3 Defense Intelligence Agency (DIA)
DIA implemented a comprehensive program that includes affirmative
employment activities within a larger diversity management program.
The program includes diversity management, training, affirmative
employment plans and programs, adjudication of complaints, deaf
and disabled programs, special recruitment, selection reviews,
and communications.
According to EEOC, between 1988 and 1993 the representation of
women in the Professional, Administrative, Technical, Others and
Blue Collar work force increased. The representation of women
in the Clerical category decreased. Blacks are fully represented
in all of the above categories, while Hispanics, Asian Americans/Pacific
Islanders and American Indians/Alaskan Natives either remained
far below Blacks and women or have shown no progress. DIA's representation
of minorities and women is concentrated in the lower grade levels.
Overall, DIA's objectives to increase the number of women and
minorities in the upper grade levels, SES and major occupations
have not been accomplished during the duration of the multi-year
plan, but there has been some improvement.
8.2.4 The Smithsonian
The Smithsonian's Affirmative Employment Program consists of five
key components: the diversity planning process, the monitoring
and assessment system, education and outreach initiatives, recognition/awards
and accomplishment reports. Women and minorities are still underrepresented
in all job categories.
A ten year trend analysis reveals that the Smithsonian has experienced
a decrease in the total work force representation for Hispanics,
Asian Americans/Pacific Islanders, and American Indians/Alaskan
Natives. Women made the greatest gains, going from 32.63 percent
to 40.38 percent. The 1993 SES representation places women at
26.8 percent and Blacks at 8.7 percent.
8.2.5 Health and Human Services (HHS)
At HHS, developmental programs have been a main focus of affirmative
employment efforts. For example, HHS did outreach to ensure that
women and minorities were well-represented in its most recent
Senior Executive Service Candidate Development Program. More than
half of the candidates in the class were women and 29 percent
of the candidates were minorities.
HHS uses a "top-down approach" to affirmative action,
believing that a diverse top-echelon will drive these practices
down through all levels of the organization. In support of the
top-down approach, HHS gives responsibility for furthering affirmative
employment to Executive Resources Boards. These Boards, composed
of senior management officials, provide advice to the head of
the operating division on all SES personnel actions. Also, managers
are held accountable for affirmative employment through their
performance plans.
8.2.6 National Aeronautics and Space Administration (NASA)
The centerpiece and newest initiative in NASA's Equal Opportunity
Program is the Equal Opportunity and Diversity Management Plan
which was endorsed by the Administrator and all senior officials
of NASA in September 1994. The Plan, to increase the diversity
of the workforce while reducing its size, completely redesigns
and strengthens the affirmative employment program by establishing
voluntary goals and timetables based on in-depth analysis of underrepresentation
compared to the relevant civilian labor force statistics.
NASA's EEO profile is worse than that of most Federal agencies;
however, it has improved considerably in almost all areas over
the last decade. Women and minorities tend to be concentrated
in the lower grade levels. NASA states that they cannot compete
with the private sector when recruiting for the highly skilled
Professional jobs that comprise the majority of their work force
(scientist and engineer positions comprise 76 percent of the workforce).
In NASA, 82 percent of SES positions are held by white males.
White males comprise 37 percent of the population but hold 82
percent of senior management and leadership positions.
8.3 Affirmative Action for a Shrinking Federal Workforce
Civilian employee affirmative action has been relatively non-controversial
at a time of a growing or stable federal workforce. However, as
the federal government shrinks, tensions will likely increase.
As a result of policies implemented by President Clinton, the
federal workforce will soon be the smallest since John F. Kennedy
was President. In all, Executive Branch civilian employment has
shrunk 8 percent from a total of 2.15 million in 1993 to an anticipated
total of 1.9 in 1996, according to the Office of Management and
Budget. The budget proposed by the President envisions accelerated
reductions, and the budget resolution passed by the Congress envisions
even more dramatic personnel reductions.a While most reductions
have been made through attrition, in the future layoffs and terminations
may be required more prominently.
The issues of layoffs and restructuring are salient throughout
the economy, not just in the public sector. They are especially
painful because it is generally recognized that the decision whether
to lay someone off is different from, and more difficult than,
a decision to hire someone. The adverse impact on the "nonbeneficiary"
is more severe, and less reparable, than in the case of a new
job not obtained. Already, several Clinton appointees have indicated
that their aggressive efforts to improve affirmative action performance
have been met with heightened resentment due to sharply declining
FTE ceilings. (Even so, the EEOC does not report a significant
increase in formal reverse discrimination actions against federal
agencies.)
Current law is evolving in this area, but two propositions are
clear. First, layoffs cannot be used as a means to implement an
affirmative action policy by "making room" for new,
diverse employees. Second, race or gender cannot trump a bona
fide seniority system.
8.4 Conclusions and Recommendations
8.4.1 Conclusions
Do the affirmative action programs affecting the federal government's
civilian workforce meet President's tests: do they work, and are
they fair?
Does it work?
Again, the first question to ask is: what is the goal of civilian
workforce affirmative action?
The principal goal of federal civilian employment affirmative
action is to remedy past discrimination and deter future discrimination
-- just as would be the case with a large private employer. For
decades, the Federal Civil Service was viewed by African Americans
as a principal avenue to economic security, and it was. But few
of the jobs were professional, because, tragically, America's
government reflected the discrimination of society at large. And
some agencies were dominated by a discriminatory mindset, while
others were more receptive to minority advancement. Today, the
Federal Government strives to be a model employer. As such, all
agencies make affirmative efforts to be inclusive in their hiring
and promotion practices, and many include goals and timetables
in their annual affirmative action plans.
In addition, because of the unique nature of the government, there
are particular benefits to be gained from diversity in the federal
workforce. First, in some areas (such as law enforcement), diversity
is particularly important to the government's effectiveness at
dealing with the broader community. Second, diversity of decisionmakers
leads to better decisions, when the goal is a government that
truly represents the interests of all the people.
Significant progress has been made toward meeting these goals.
Federal agencies, in the aggregate, seek to be model employers,
and offer real opportunity for minorities and women that are often
not available in the private sector. However, real problems remain.
Minorities and women remain seriously underrepresented in the
higher ranks and at some agencies. There are many explanatory
factors, including the lag required for hirees to reach the senior
ranks, but the inescapable conclusion is that a glass ceiling
impedes progress in the public sector as well -- not as seemingly
impenetrable as that in corporate world, but a barrier nonetheless.
As discussed above, it will be still more difficult to retain
the appropriate balance in a period of reduction in the size of
the Federal workforce. Promotion opportunities are decreasing,
jeopardizing efforts to create a more diverse senior workforce
and creating pressures and tensions which, if not properly addressed,
trigger resentment and demoralization. Agency managers recognize
this challenge. Those with whom we consulted express confidence
that they are taking appropriate steps, but these expressions
were not fully persuasive. Seminars and town hall meetings to
discuss "diversity" and "opportunity" are
undoubtedly important and necessary elements of a strategy. It
seems unlikely, however, that these will be fully effective. As
the Federal workforce shrinks, the risk of tensions will increase.
Is it fair?
(1) Not quotas.
Policy and law prohibit quotas and numerical straightjackets,
and we found no hint of evidence that these prohibited practices
take place. Throughout the government, civil service statutes
and regulations ensure adherence to merit principles. During the
Reagan Administration, EEOC "deregulated" the agencies
to provide discretion in whether to use goals and timetables.
This flexibility allows managers great latitude in structuring
their hiring and promotion policies. But managers must continue
to monitor performance to make sure progress does not slow in
building a workforce that draws upon the full range of talents
and capacities of all citizens.
(2) Race-neutral options.
Although managers are encouraged to keep diversity and equal opportunity
objectives in mind when conducting outreach and recruiting, these
efforts are designed to ensure that hiring and promotion decisions
are made from an inclusive pool of qualified candidates. Beyond
that, actual decisions are made in accordance with the race- and
gender-neutral civil service "merit selection" procedures
established by law and regulation, so that race and gender are
not given formal weight. For those positions in which interviews
and subjective factors play an inevitable role, such as policymaking
positions in the Senior Executive Service, anecdotal reports are
that some managers may give flexible weight to diversity considerations.
This is appropriate to redress a manifest imbalance, or when diversity
is somehow relevant to the effective performance of the organization
-- but with the important caveats regarding avoidance of reverse
discrimination as established in the caselaw. (The antidiscrimination
enforcement mechanisms of the EEOC and the agencies are designed
to prevent and remedy any abuses.)
(3) Flexible.
Since 1987, there has been no requirement that agencies use goals
and timetables; instead, they are directed to focus on removing
barriers to advancement. Accordingly, the programs vary among
agencies and departments.
(4) Transitional.
Because agencies undertake affirmative employment efforts in accordance
with their affirmative action plans, and because agencies review
and modify those plans every year, the current efforts are appropriately
transitional. It is reasonable to make these judgments narrowly,
focusing on specific job categories and organizational units within
each agency, rather than making an aggregate decision for the
entire Federal workforce.
(5) Balanced.
The data suggest that reverse discrimination charges have been
a relatively small and constant proportion of all discrimination
complaints filed by federal workers with the Equal Employment
Opportunity Commission. (Nevertheless, the long delays all complaints
face at the EEOC are a matter of serious concern because delay
is a form of unfairness to all concerned -- both complainants
and respondents. An ineffective enforcement mechanism makes the
promise of a discrimination-free workplace too fragile for comfort.)
The shrinking federal workforce puts into sharp relief the issue
of affirmative action's effect on nonbeneficiaries, this time
in the context of layoffs. These issues will be increasingly thorny
in the future, and will require extra attention to ensure fairness
to nonbeneficiaries.
8.5.2 Recommendations
We recommend that the President:
- Recognizing that the EEOC is chronically underfunded, direct
OMB to work with the Commission to develop a budget proposal that
ensures it can effectively carry out its mission. Proposals should
specifically address implementation of major new initiatives regarding
charge processing, alternative dispute resolution and other efforts
to tame the agency's large backlog of private sector complaints.
- Direct the Office of Personnel Management and agency heads
to ensure that performance appraisals for managers include evaluation
of their performance with respect to equal opportunity objectives,
as defined by each agency in light of its circumstances and needs;
periodic consideration by agencies of whether appropriate management
systems of accountability are in place to pursue the agency's
equal opportunity objectives.
- Direct the President's Management Council, working with
the EEOC to study and report on the appropriate use of flexible
goals and timetables for hiring and promotion, in the context
of an overall federal workforce reduction. The overall goal is
to ensure that the federal government is a model equal opportunity
employer.
- Direct the President's Management Council, working with
the EEOC, to identify and report on best agency practices in managing
diversity and promoting equal opportunity, and to implement a
mechanism to foster dissemination and adoption of those practices
throughout the government. The Council should also look to successful
examples in the private sector. The Council's efforts should focus
on areas of the federal service in whichunderrepresentation is
a significant problem.
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