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:
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 Conclusionsand 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: