Volume XIX, No.1
Office of Federal Operations
The Digest of EEO Law is a quarterly publication of EEOC's Office of Federal Operations (OFO)
Carlton M. Hadden, Director, OFO
Douglas A. Gallegos, Acting Director, OFO's Special Services Staff
Editor: Arnold Rubin
Contributing Writers: Robyn Dupont, Arnold Rubin, Veronica Villalobos, Dexter Brooks Marc Plotkin, Megumi Fujita, Melissa Brand, Davis Kim, Mary Beth Heinzelmann
The Digest is now available online through EEOC's homepage at www.eeoc.gov.
This special edition of the Winter 2008 Digest of EEO Law has been designed to begin with an historical look at the origins of EEOC, moving forward to a prospective view, as much as reasonably possible, by highlighting some of the initiatives launched and work groups formed to support EEOC’s mission to prevent and eradicate employment discrimination under the laws that the Commission enforces in a United States of America that has become increasingly diverse in its many cultures. The goals of these initiatives include ensuring a level playing field for federal employees and applicants for federal employment as they seek the freedom to compete solely based on their knowledge, skills, and abilities. It is by no means intended to be an exhaustive discussion. The reader is therefore invited to visit EEOC’s website, www.eeoc.gov, for further information. In the first decade of the 21st century, the leadership and staff of the Equal Employment Opportunity Commission (EEOC) have specifically identified, on a national basis, workforce barriers in the government that needed to be addressed to ensure that the federal workplace is free of unlawful discrimination.
We begin with a review of the federal sector EEO process from an historical perspective.
In July 1948, President Harry S. Truman issued Executive Order 9980, which prohibited discrimination in federal employment on the bases of race, color, religion, or national origin.1 The Order designated the head of each department to appoint a Fair Employment Officer to appraise department personnel actions, receive discrimination complaints, and take necessary corrective or disciplinary action.2 The Fair Employment Officer’s decisions were appealable to the head of the department.3 The Order also established a Fair Employment Board (FEB) in the Civil Service Commission (CSC) to advise department heads, disseminate information, coordinate programs, and review decisions made by the department heads.4 Title VII of the Civil Rights Act of 1964 prohibited employment discrimination based on race, color, religion, sex, national origin, and protected activity, but did not initially apply to employees and applicants for employment of the federal government.5
By 1970, discrimination persisted in the federal government.6 Federal employees had little faith in the complaint process and feared retaliation.7 Congress found that inadequate remedies existed, and procedural obstacles, such as sovereign immunity, potentially limited claims against the federal government.8 As a result, Congress passed the Equal Employment Opportunity Act of 1972, extending Title VII’s coverage to include federal employees while retaining the CSC’s role in the administrative process.9 Congress also passed the Rehabilitation Act of 1973, which prohibited the federal government from discriminating against qualified individuals with disabilities.10
Despite Congress’ actions, several problems remained. The existing procedural regulations were viewed as being biased against complainants, and the complaint process itself was difficult to navigate.11 Furthermore, by the 1970s, seventeen federal agencies and departments were responsible for enforcing forty nondiscrimination statutes and executive orders.12 To consolidate these disparate enforcement efforts, President Carter, in Reorganization Plan No. 1 of 1978, gave EEOC enforcement authority over employment discrimination claims under the Rehabilitation Act, the Age Discrimination in Employment Act (ADEA), the Equal Pay Act (EPA), and Section 717 of Title VII to EEOC. With respect to federal employee claims, the reorganization transferred authority from the CSC to EEOC, although it allowed EEOC to delegate “preliminary determinations” to the CSC. Shortly thereafter, Congress passed the Civil Service Reform Act of 1978, which abolished the CSC and distributed its functions primarily among three agencies: the EEOC; the Office of Personnel Management (OPM); and the Merit Systems Protection Board (MSPB).13 EEOC was given responsibility over the hearing and appeal functions for certain cases involving employment discrimination.14
As a result of the new authority given to the Commission to oversee the federal sector EEO process, the Commission created two new offices at headquarters: the Office of Review and Appeals (ORA) and the Office of Interagency Coordination.15 ORA was given the authority to review decisions from the Merits Systems Protection Board (MSPB) with respect to discrimination claims and adjudicate appeals from federal applicants and employees from agency decisions. The Office of Interagency Coordination was responsible for coordinating federal EEO policy.16 The Commission created two new divisions within the Office of Government Employment. The Federal Affirmative Action Division coordinated the affirmative action plans of federal agencies.17 The Handicapped Individuals Program Division ensured compliance with § 501 of the Rehabilitation Act.18 In addition, complaints examiners were assigned to each of the Commission’s district offices to conduct hearings on federal EEO cases.19
In 1982, upon becoming Chairman, Clarence Thomas appointed an EEOC Organizational Study Group to review the organizational structure of the Commission and to suggest possible improvements.20 The Study Group identified several problems with the existing organizational structure including, among other things, that headquarters’ management was fragmented due to the large number of offices at headquarters.21 On August 17, 1982, the Commission unanimously endorsed a new EEOC mission statement22 and plans to reorganize headquarters to address the concerns identified by the Study Group. 23
Under the 1982 reorganization, the Commission created the Office of Program Operations (OPO). OPO coordinated public and private sector compliance activities, and Commission field offices were placed under the direction of OPO. 24 OPO also contained a Federal Sector Program Division.25 This division oversaw the program under which federal agencies processed EEO complaints filed against them and oversaw the development of affirmative action programs for minorities and women in federal agencies.26 The early 1980s also brought organizational change to ORA. In 1983, a third division, the Compliance and Control Division, was added.27 This division was responsible for tracking agency compliance with Commission Orders and developing information systems for controlling the tracking and processing of ORA cases.28
By the early 1990s, Federal Sector Programs’ (FSP’s) functions included developing and monitoring policies pertaining to the affirmative employment programs of federal agencies for qualified minorities, women, and individuals with disabilities, as well as providing guidance to the Commission’s Administrative Judges (AJs).29 In addition, ORA became the Office of Federal Operations.30 During this time, FSP, formerly part of OPO, became part of OFO.31 Therefore, OFO not only rendered decisions on appeal, but also developed policy guidance for federal agency affirmative employment programs.32 Around this time, OPO became the Office of Field Programs (OFP). By the late 1990s, OFO was comprised of Appellate Review Programs (ARP), which reviews appeals from agency and EEOC Administrative Judge decisions issued on federal sector discrimination complaints; the Compliance and Control Division, which tracks agency compliance with Commission Orders and develops information systems for controlling the tracking and processing of cases; Federal Sector Programs (FSP),33 which develops policies, programs, and standards for affirmative employment for federal agencies and conducts on-site reviews at federal agencies, and oversees the compliance of federal agencies with Commission regulations pertaining to federal sector EEO complaint processing; and Special Services, which provides information and technical assistance to federal agencies on alternative dispute resolution methods and conducts special investigations of EEO complaints that involve high level agency officials or conflicts of interest.34
Recently, the Commission reorganized its field offices in 2006. Under this reorganization, the field offices were organized into four different levels of responsibility. The two largest levels, District Offices and Field Offices, both received federal sector staff, including AJs to conduct hearings on federal sector EEO complaints.35
EEOC assumed responsibility for implementing federal sector affirmative action planning in 1979.36 With this new responsibility, EEOC introduced affirmative action instructions, and subsequently issued EEO Management Directive 701 (MD-701).37 MD-701 provided a systemic approach to affirmative action planning and program development. In response to questions regarding: (1) the paperwork burden; (2) the use of civilian labor force data for setting hiring goals; and (3) the relationship of the federal affirmative action planning process to the Federal Equal Opportunity Recruitment Program (FEORP), EEOC issued MD-702, which provided new instructions for affirmative action programs for minorities and women.38 Through MD-702, EEOC refined the systemic approach to affirmative action planning and program development that included setting hiring goals for targeted occupations and timetables.39
EEOC designated 1980 as a “transitional year” for the affirmative action planning process.40 On July 1, 1980, EEOC approved MD-705, which superseded MD-702. MD-705 set forth affirmative action planning for minorities and women, and required agencies to report their accomplishments for targeted occupations by comparing the agency’s workforce profile in 1979 with that in 1980.41 In the early 1980s, the Commission began to require longer-term planning and comparisons. On January 23, 1981, the Commission issued MD-707, which provided agencies with advanced instructions on developing, submitting, and implementing affirmative action plans for minorities and women for the period FY 1982 through FY 1986.42 This Directive initiated the first multi-year affirmative action process with its five-year implementation period and was expected to result in savings of time and effort, while providing flexibility for a long-term planning approach.43
In 1983, EEOC approved MD-712 which instructed agencies to include in their affirmative action programs for individuals with disabilities the following: targeted disabilities, quantitative goals, special recruitment programs, facility accessibility, upward mobility, career development, and selection plans in their hiring procedures.44 The Commission continued to issue management directives which adopted a multi-year affirmative action process. On October 6, 1987, EEOC issued MD-713 to instruct agencies on their preparation of FY 1988 through FY 1992 affirmative action plans for individuals with disabilities.45 This Directive focused on helping to ensure that the government became a model employer.46 The Commission also issued MD-714, which focused on “affirmative employment programs” for minorities and women for FY 1988 through 1992.47 MD-714 directed agencies to devise flexible approaches to improving the conspicuous absence or manifest imbalance of women and minorities in their workforces, and required agencies to look at internal movements of EEO groups in their workforces.48
The 1990s did not bring significant change to the Commission’s program on affirmative employment. MD-713 and -714 were originally intended to cover the period from FY 1988 through FY 1992, a five-year cycle. In September 1994, however, EEOC extended coverage of the existing Directives until further notice. MD-712, which provided affirmative action programs for individuals with disabilities, also remained in effect as supplemented by MD-713.
In 2003, the Commission issued MD-715, its current management directive pertaining to affirmative employment. MD-715, which replaced MD’s 712, 713, and 714, sets forth guidance for agencies regarding their affirmative employment programs under both Title VII and the Rehabilitation Act. The essential components of model Title VII and Rehabilitation Act programs under MD-715 include: demonstrated commitment from agency leadership; integration of EEO into the agency’s strategic mission; management and program accountability; proactive prevention of unlawful discrimination; efficiency; and responsiveness and legal compliance.49 To serve as diagnostic tools to help agencies determine possible areas where barriers may exist and may require closer attention, agencies are required to conduct self-assessments looking at the racial, national origin, and gender profiles, as well as the profiles of people with targeted disabilities, in relevant occupational categories in an agency’s workforce.50
Prior to the Commission obtaining authority over the federal sector EEO process, the CSC had authority to issue regulations and orders with respect to the processing of federal sector EEO complaints. The initial regulations pertaining to complaint processing provided time frames for filing complaints, and required agency investigations, a hearing by an agency panel or an agency appointed hearing officer, a final decision by the agency head or a designee, and a process allowing complainants to file appeals with the CSC’s Board of Appeals and Review.51 In 1969, the CSC revised its regulations to require complainants to participate in informal counseling prior to filing a formal complaint. In addition, complaints examiners were prohibited from being employees of the respondent agency.52
When EEOC gained authority over the federal sector EEO process in 1979, it decided to keep the existing process in place until a detailed study could be completed.53 Thus, the Commission adopted the CSC regulations with only minor technical changes.54 The regulations were moved from 5 C.F.R. Part 713 and redesignated at 29 C.F.R. Part 1613, effective January 1, 1979.55
In the early 1980s, the Commission amended its regulations with respect to the issue of remedies for complainants alleging discrimination in violation of the Rehabilitation Act. Specifically, in October 1981, the Commission authorized back pay to applicants for federal employment who successfully proved disability discrimination in order to comply with the 1978 amendments to the Rehabilitation Act of 1973.56 The 1978 amendments provided that complainants prevailing on the basis of disability discrimination were entitled to the same remedies as those provided under Title VII.57
During the mid-1980s, the Commission significantly revised its regulations governing the processing of federal sector complaints. Initially, the regulations were amended to provide for a special panel to resolve conflicts between the MSPB and the EEOC.58 Later, the Commission issued comprehensive revisions to the investigation, hearing, and appellate procedures, added more grounds for dismissing complaints, and provided a right of appeal for complainants alleging breach of a settlement agreement.59 In addition, complaints examiners were renamed Administrative Judges in order to “reflect more accurately the nature of the position.”60
The 1990s represented a time of significant change to the Commission’s regulations governing the processing of federal sector complaints. The Commission issued new regulations at 29 C.F.R. Part 1614,61 which applied to complaints filed after October 1, 1992, and were organized differently than 29 C.F.R. Part 1613.62 Part 1614 consolidated the procedures as much as possible in an effort to avoid repetition.63 One noteworthy change encompassed in the 1992 revisions was extending the time limit to contact an EEO Counselor from 30 days to 45 days.64
In the 1990s, the EEOC’s federal sector hearing and appeal workloads had increased, and, despite past revisions to the process, criticisms to the process remained. In response, EEOC organized a Federal Sector Workgroup to study the regulations. In response to Workgroup recommendations, the Commission revised its regulations again on November 9, 1999.65 Some of the significant changes to the regulations included: a requirement that agencies establish an alternative dispute resolution program, additional grounds for dismissal, additional authority to AJs to dismiss complaints, and a requirement that forbids the fragmentation of claims and requires the consolidation of complaints in some situations.66 In addition, the regulations provided that an AJ’s decision would become final unless the agency issued a final order within 40 days of receiving the AJ’s decision.67 Further, if the agency’s final order did not fully implement the AJ’s decision, the agency was required to simultaneously file an appeal with the Commission.68 The revised regulations also implemented changes to the provisions governing class complaints to ensure that complaints “raising class claims are not unjustifiably denied class certification and are resolved under the appropriate legal standards consistent” with the federal courts.69 The Commission issued guidance regarding its new regulations in EEO Management Directive-110.70
In 1992, Congress amended section 501 of the Rehabilitation Act to adopt the employment nondiscrimination standards of the Americans with Disabilities Act (ADA).71 Effective June 20, 2002, the Commission deleted from its regulations the text of its old section 501 regulation, at 29 C.F.R. § 1614.203.72 The new text of Section 1614.203 provides, in pertinent part, that the standards used to determine whether section 501 of the Rehabilitation Act has been violated in a complaint alleging employment discrimination shall be the standards applied under the ADA.73
When Management Directive 715 was promulgated, its purpose was clearly defined: to provide federal agencies with policy guidance and standards for establishing and maintaining affirmative programs of equal employment opportunity under Section 717 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e-16, and effective affirmative action programs under Section 501 of the Rehabilitation Act of 1973, 29 U.S.C. §791.74 The overriding policy objective of MD-715 is to ensure that federal agencies position themselves to attract, develop and retain a top-quality workforce whose talents can be utilized without regard to race, sex, national origin, color, religion, or disability.75 Identification and elimination of policies and practices that impede opportunities for the best and the brightest talent available is the key to realizing that objective.
The management directive identifies six elements that comprise the model EEO program to which every federal agency should aspire: demonstrated commitment from agency leadership; integration of EEO into the agency’s strategic mission; management and program accountability; proactive prevention of unlawful discrimination; efficiency; and responsiveness and legal compliance.76 The agency’s obligation to identify and eliminate barriers to the hiring, placement, development and advancement of those protected by Title VII and The Rehabilitation Act is set forth in the fourth element. Under “Proactive Prevention,” the MD states that agencies have an ongoing obligation to eliminate barriers that impede free and open competition in the workplace.77 As part of this obligation, agencies are required to conduct a self-assessment on an annual basis in order identify areas where barriers may operate to exclude certain groups, and to develop strategic plans to eliminate barriers that have been identified.78
We will begin our discussion of barrier analysis with an examination of the statutory and regulatory authorities in which MD-715’s requirement for conducting barrier analysis is grounded. Next, we will examine long-term federal sector employment trends that suggest the ongoing existence of systemic barriers in workplace policies, practices, procedures, or conditions throughout the federal government. Finally, we will provide a detailed overview of the barrier analysis process.
The barrier analysis requirements set forth in MD-715 ultimately derive from Section 717 of Title VII of the Civil Rights Act of 1964 79 and the Section 501 of the Rehabilitation Act of 1973.80 Title VII imposes upon federal agencies the requirement that all personnel actions affecting employees or applicants for federal employment be made free from any discrimination based on race, color, religion, sex, or national origin.81 It also empowers EEOC to annually review and approve EEO plans that each agency must submit in order to maintain an affirmative program of equal employment opportunity for all employees and applicants.82
In addition to Title VII, MD-715 identifies a number of regulatory authorities that the Commission considers relevant to a federal agency’s EEO responsibilities.83 Among these authorities, MD-715 specifically references 29 C.F.R. § 1608, the regulation governing private sector affirmative action plans or programs under Title VII, which requires three elements: a reasonable self analysis; a reasonable basis for concluding that action is appropriate; and reasonable action.84 The objective of a self-analysis is to determine whether employment practices do, or tend to, exclude, disadvantage, restrict, or result in adverse impact or disparate treatment of previously excluded or restricted groups or leave uncorrected the effects of prior discrimination, and if so, to attempt to determine why.85 If the answer to any of these questions is yes, then there is a sufficient basis for concluding that action is appropriate, regardless of whether or not an actual violation of Title VII exists.86 Any action ultimately taken pursuant to an affirmative action plan or program must be reasonable in relation to the problems disclosed by the self analysis.87
Although 29 C.F.R. § 1608.4 governs affirmative action in the private sector, this three-part analysis underlies the barrier identification and elimination process as envisioned under MD-715.88 In conducting its self-assessment, agencies must thoroughly examine all of the circumstances pertinent to the possible existence of workplace barriers, including, but not limited to workforce statistics on participation rates, applications, promotions, and separations.89 If the self-analysis reveals that employment practices have adversely affected a previously restricted protected group, or failed to correct the effects of past discrimination, then there is a reasonable basis for taking action to address the problem(s), even if the self-analysis does not establish that that the agency violated Title VII.90 Once the agency identifies a likely factor or combination of factors adversely affecting the employment opportunities of particular groups, it must determine whether or not the identified barrier serves a legitimate business purpose, and if not, take steps to eliminate it.91
Federal agencies’ responsibilities under the Rehabilitation Act differ somewhat from their responsibilities under Title VII. Whereas Title VII emphasizes the development of affirmative programs of equal employment opportunity, Section 501 of the Rehabilitation Act requires agencies to develop and maintain affirmative action program plans for the hiring, placement, and advancement of individuals with disabilities, and to describe the extent of its efforts and specific methods to meet the special needs of employees with disabilities.92
Under MD-715, there are three essential aspects to ensuring equality of opportunity for employees and applicants with disabilities. The first, of course, is the obligation not to discriminate against individuals with disabilities by denying them opportunities or otherwise treating them differently than individuals without disabilities.93 Second, agencies are required to provide reasonable accommodations to employees or applicants with disabilities, as long as those accommodations would not result in an undue hardship, and to establish written procedures by which those who need accommodations could request them.94 The third, which applies only to agencies with 1,000 or more employees, requires agencies to maintain a special recruitment program for individuals with targeted disabilities, and to establish specific goals for the employment and advancement of such individuals.95
Goals are defined under the Rehabilitation Act as identifiable objectives set by agencies to address or eliminate barriers to equal employment opportunity or to address the lingering effects of past discrimination.96 Such goals should be set and accomplished in such a manner as will effect measurable progress from the preceding fiscal year.97 MD-715 requires that agencies, as appropriate: engage in outreach and targeted recruitment; take advantage of excepted appointing authorities; create training and development plans for individuals with disabilities; and take disability into account in selection decisions where an individual with a disability is otherwise qualified with or without reasonable accommodation.98
In order for agencies to achieve maximum impact through their Rehabilitation Act programs, agencies are required to give special attention to individuals with targeted disabilities.99 Targeted disabilities are those disabilities that the federal government, as a matter of policy, has identified for special emphasis in affirmative action programs, and include deafness, blindness, missing extremities, partial paralysis, complete paralysis, convulsive disorders, mental retardation, mental illness, and distortion of limb and/or spine.100
There can be no doubt that the federal government has become a more diverse employer over the past quarter-century. As shown below, Women, Hispanics, African-Americans, Asians and Pacific Islanders, and Native Americans and Alaskans have made progress toward expanding their participation in the federal workforce.101
However, as the table below indicates, that progress appears to have been slowing down over the last ten years.102 While participation rates among women, Hispanics, and Asians have increased modestly, participation rates among African Americans have, more or less, remained stagnant.
|Composition of Federal Work Force -
FY 1997 – FY 2006
|FY 1997 %||FY 2006 %|
|Hispanic or Latino Men||3.97||4.59|
|Hispanic or Latino Women||2.42||3.10|
|Black or African American Men||8.04||7.90|
|Black or African American Women||10.31||10.46|
|Native Hawaiian/Other Pacific Islander Men||NA||0.10|
|Native Hawaiian/Other Pacific Islander Women||NA||0.07|
|American Indian/Alaska Native Men||0.69||0.77|
|American Indian/Alaska Native Women||0.71||0.91|
|Two or More Race Men||NA||0.03|
|Two or More Race Women||NA||0.03|
|Individuals with Targeted Disabilities||1.16||0.94|
In particular, the participation rate of individuals with targeted disabilities has been declining steadily over the past ten years, despite the existence of numerous programs and extensive availability of resources geared toward these individuals. Between Fiscal Years 1997 and 2006, while the total workforce increased by 5.48%, the number of federal employees with targeted disabilities actually declined by 14.75%.103 Overall, the participation rate of individuals with targeted disabilities had declined from a high reached during Fiscal Year 1994.104
These statistics suggest the ongoing existence of systemic barriers throughout the federal workforce.
In essence, barrier analysis is simply an investigation of situations in which employment opportunities for members of a particular race, gender, or ethnic or religious background, or for individuals with disabilities, appear to be limited in some fashion, with an eye toward identifying the root causes of those situations, and if necessary, eliminating them. The process of barrier identification and elimination consists of the following steps:
The first step in the barrier analysis is to conduct an annual self-assessment in order to find triggers that might point the way toward the existence of barriers. A trigger is simply a red flag. It may be any piece of information that alerts one to the need for additional scrutiny of the area in which it arose. An important, but by no means exclusive source of information on triggers, is the workforce statistics that every federal agency is required to collect annually and maintain. These statistics include workforce participation rates of permanent and temporary employees, participation in occupational categories, grades, and major occupations, hiring, promotions, awards, and separations. While statistics are a useful starting point, they must be examined within the totality of the circumstances.105 Other relevant source material includes EEO complaints, the observations of EEO, Human Resources, and union staffs, the results of surveys, focus groups, and exit interviews, and studies by outside organizations. Examples of triggers that might arise from this information might include low participation rates of Hispanic males in the workforce relative to the civilian labor force; lack of promotions of Asian females to managerial or executive positions; large number of EEO complaints filed by African-American males alleging discrimination with respect to promotions; or a mass exodus of Native Americans from a particular facility.
Upon identifying triggers, the next step in the process is to pinpoint the root causes of those triggers. This will necessarily require a thorough investigation and assessment of the agency’s policies, practices, procedures, and conditions with respect to recruitment, hiring, career development, competitive and noncompetitive promotions, advancement to senior grades and positions, career development and training, awards and incentives, disciplinary actions, and separations. The process may well entail the development of investigative plans covering individuals who need to be interviewed, questions that need to be asked, and documents that need to be reviewed. Preliminary data can be used to develop information requests. The key to this process is whether the question about why the trigger is occurring can be answered. When a particular policy, procedure, practice, or condition is identified as a barrier, that identification should be detailed enough to be tested through the development and implementation of an action plan.
Once the agency identifies the barrier, it must then assess its appropriateness, taking into consideration such factors as the agency’s heads’ commitment to equal employment opportunity, budgetary or human capital restrictions, the necessity of qualifications standards, or whether selection criteria might have exclusionary effects.106 Once the agency determines that the policy, practice, procedure, or condition tentatively identified as a barrier serves no legitimate purpose with respect to its operations, it must take immediate steps to eliminate that barrier.107 Identified barriers that are not within the control or authority of the agency to change, such as the physical and medical requirements for law enforcement occupations, should nevertheless be brought to the attention of the responsible entity.108 Plans for eliminating barriers should include a statement of the triggers identified, an explanation of the barrier analysis undertaken, a precise identification of the barrier(s) in question, a clearly stated objective for eliminating the barrier, the official who will be given responsibility for eliminating the barrier, specific timelines and deadlines for completing the plan, and a statement of tasks to be accomplished, or milestones.109
The last step in the process is the followup. This is a determination of whether the action plan developed and implemented to eliminate the identified barrier was successful in doing so. Indicators of success would include a rise in the participation rates of particular groups, a decline in separation rates, a drop in the number of complaints filed, or favorable responses in surveys and interviews. If, on the other hand, there are no indicators of success, or the situation had worsened, then either the wrong barrier had been identified despite the agency’s best efforts, or the action plan developed to eliminate the barrier in question had somehow given rise to a new barrier. Followup would not normally occur until at least the next reporting cycle, and, in many cases, the results of the action plan might not become apparent for more than one reporting cycle.
Barrier analysis is an ongoing process. It may take several years for an agency to identify and eliminate all of its barriers to equal employment opportunity. When the Equal Employment Opportunity Commission conducts its annual review of agencies’ MD-715 reports, it expects no more than to see incremental progress being made over what agencies have accomplished during the previous fiscal year. That said, one final point to keep in mind is that by identifying and eliminating barriers that inhibit the advancement and development of members of its workforce, agencies can prevent the problems that give rise to complaints of employment discrimination from occurring in the first place.
We now take a brief look into a future of possibilities and selected current initiatives and work groups designed to make equality of opportunity in the federal workplace in fact as well as in law.
The Equal Employment Opportunity Commission has championed equal opportunity in employment since its inception, shortly after the signing of Title VII of the Civil Rights Act of 1964. Although the Commission has been successful in its enforcement efforts, race and color discrimination continue to exist in the workplace. In an effort to identify and implement new strategies that will strengthen its enforcement of Title VII and advance the statutory right to a workplace free of race and color discrimination, EEOC instituted the E-RACE Initiative.
The E-RACE Initiative is designed to improve EEOC’s efforts to ensure workplaces are free of race and color discrimination. Specifically, the EEOC will identify issues, criteria and barriers that contribute to race and color discrimination, explore strategies to improve the administrative processing and the litigation of race and color discrimination claims, and enhance public awareness of race and color discrimination in employment. As a framework for implementing the E-RACE Initiative, EEOC has developed a set of detailed E-RACE goals and objectives to be achieved within a 5-year timeframe from FY 2008 to FY 2013.
Additionally, the Commission will combine the objectives of E-RACE with existing EEOC initiatives. For example, the Commission will integrate the goals of the Systemic Initiative by addressing race and color issues with class and systemic implications. It will incorporate the principles of the Youth@Work Initiative by combating disparate treatment of youth based on race and color. And, the Commission will complement the outreach and enforcement efforts of the LEAD Initiative by challenging exclusionary employment policies that adversely impact people of color who also have disabilities (in both the private and public sectors).
Finally, the Commission will strengthen partnerships with employee advocates and state and local human rights commissions and increase its outreach to human resource professionals and employer groups to address race and color discrimination in the workplace.
One of the most intractable problems in the federal government has been the decreasing numbers of persons with targeted disabilities (PWTD) to the point where they represent less than one percent of the federal workforce. As we have already seen, targeted disabilities are those that the federal government, as a matter of policy, has identified for special emphasis. Specifically, targeted disabilities are: (1) deafness; (2) blindness; (3) missing extremities; (4) partial paralysis; (5) complete paralysis; (6) convulsive disorders; (7) mental retardation; (8) mental illness; and (9) distortion of limb and/or spine. OFO’s Project REDI (Retain and Employ Disabled Individuals) has been working to create services and programs to help federal agencies increase the number of individuals with targeted disabilities in the workforce through recruitment and retention initiatives, including developing, designing, implementing and managing high quality training programs for managers and HR personnel, as well as University career offices, and Community Rehabilitation offices. Project REDI has contacted and met with a variety of governmental and non.governmental stakeholders to determine their concerns, and understand the factors that negatively impact employment of persons with targeted disabilities in the federal government. Based on these stakeholder meetings, a list of impediments was developed and ultimately integrated into a report on “Improving the Participation Rate of People with Targeted Disabilities in the Federal Work Force.”110 Project REDI members also helped organize and coordinate the Commission’s meeting on the employment of people with disabilities in June 2006. Project REDI has also been working in collaboration with Commissioner Christine Griffin on her LEAD Initiative, to increase employment opportunities for people with disabilities.
LEAD (Leadership for the Employment of Americans with Disabilities), while not directly involved in the hiring process itself, is the EEOC's initiative to address the declining number of employees with targeted disabilities in the federal workforce by encouraging agencies to hire and advance individuals with severe disabilities. The goal for this initiative is to significantly increase the population of individuals with severe disabilities employed by the federal government. Specifically, this national outreach and education campaign seeks to:
For information on current vacancies in the federal government, the reader is encouraged to visit www.usajobs.opm.gov, and/or the website of individual federal agencies. Additionally, job seekers may find useful information on the OPM Disability Resource page - http://www.opm.gov/disability/. The reader is also encouraged to check the LEAD Update link for information on past and future events. LEAD can be contacted by email at Lead.Initiative@eeoc.gov.
On August 26, 2008, EEOC issued a new question-and-answer guide aimed at promoting the hiring and advancement of individuals with disabilities in federal government employment. The new publication is available on the EEOC’s web site at www.eeoc.gov/federal/qanda-employment-with-disabilities.html. When announcing the resource publication for federal agencies, Commission Chair Naomi C. Earp said, “The EEOC is doing everything it can to provide agencies with useful guidance on how to be the nation’s model employer, providing equal opportunity to all Americans, including those with disabilities.” 111
The percentage of federal employees with targeted disabilities, which are severe physical or mental disabilities that historically have resulted in barriers to employment, has declined each year since reaching a peak of 1.24% in Fiscal Years 1993 and 1994. In FY 2007, the participation rate of people with targeted disabilities declined to 0.92% of the federal government’s total work force, the lowest participation rate in more than 20 years. 112
EEOC Commissioner Christine Griffin said: “Even though the Rehabilitation Act of 1973 has long required federal agencies to engage in affirmative action to hire and advance individuals with disabilities, the federal government has failed to meet this challenge. We must and can do better. This question-and-answer guide will help agencies make concrete progress.” Commissioner Griffin has overseen the EEOC’s LEAD Initiative (Leadership for the Employment of Americans with Disabilities), which aims to boost the ranks of individuals with disabilities in federal employment to 2% by 2010.113
The question-and-answer guide responds to frequently asked questions about what the law allows and requires federal agencies to do with respect to affirmative hiring and employment of individuals with disabilities. Among other topics, the publication discusses:
In January 2008, the EEOC issued a report entitled “Improving the Participation Rate of People with Targeted Disabilities in the Federal Work Force,” which provides practical guidance on steps agencies can take to increase hiring and advancement. The report is available on the EEOC’s web site at www.eeoc.gov/federal/report/pwtd.html. Further information about the LEAD Initiative is available online at http://www.eeoc.gov/initiatives/lead/index.html.
Commissioner of Social Security Michael J. Astrue noted that “Social Security is proud to have a workforce that reflects the American public we serve. Diversity strengthens our organization and enhances the quality of our service. We look forward to working with the EEOC to make the federal government an employer of choice for the Hispanic community.”115
The members of the new work group represent a cross-section of agencies, departments and external stakeholders, including the Department of Commerce; Broadcasting Board of Governors; Postal Service; the Department of Justice/Drug Enforcement Administration; Department of Homeland Security; Department of Transportation; Department of the Air Force; and the Department of Labor. The work group is diverse in race, ethnicity, gender, grade levels, occupational categories, levels of management, and professions.
The Federal Hispanic Work Group will examine the Hispanic community’s concerns about federal sector employment, including leadership development, hiring, and retention. EEOC made this decision after hearing the concerns raised by the Hispanic community, which included low participation rates for Hispanics in federal employment, especially at the higher series and levels; lack of leadership development for Hispanic employees seeking entry into the Senior Executive Service; and Hispanic employees leaving the federal sector for private sector positions.
The two agencies believe that shifting demographics, including the rapid growth in the Hispanic community, technological advances and rising globalization have fundamentally altered the marketplace and the workplace. Further, retirement trends identified by the OPM provide a significant opportunity to create a more diverse workforce. The FHWG plans to interview stakeholders and experts, and review data with the ultimate goal of providing recommendations.
In addition, OFO has its own Hispanic Work Group: the OFO Strategy Group on the Advancement of Hispanics in Government. The Hispanic Strategies Group is also working to address the problem of the low participation rates of Hispanics in the federal workforce. As part of this effort, on June 13, 2007, EEOC hosted a Brown Bag lunch, which focused on two OFO Strategic Work Groups whose goals are to increase participation of underrepresented populations in the workforce: the OFO Strategy Group on the Advancement of Hispanics in Government and Project REDI (discussed earlier). Invitees included EEO Directors. The Hispanic Strategies Group discussed its work in addressing the problem of the low participation rates of Hispanics in the federal workforce. Project REDI described its work on creating services and programs to help federal agencies increase the number of individuals with targeted disabilities in the workforce. Members of both OFO groups discussed the distinct projects their groups have undertaken and are contemplating, and were available to answer questions from the attendees.
In October 2007, EEOC Chair Naomi C. Earp formed the Asian American Pacific Islander Work Group (AAPIWG)116 to examine this community’s concerns about federal sector employment, special emphasis programs and the complaints process. Their work will begin with testing perceptions and gathering the realities Asian Pacific Americans face in the federal workplace. They presented their findings regarding AAPIs in the federal sector, as well as their recommendations on how to tackle and eliminate barriers regarding these urgent and vexing problems at a Commission Meeting held on July 22, 2008. Among those presenting to the Commission was Carlton M. Hadden, Director of EEOC’s Office of Federal Operations (OFO). The substance of his statement is presented, in part, in this article.
Federal employment data collected (in FY 2006) by EEOC indicates that AAPIs are well.represented in the overall federal workforce as compared to civilian labor force statistics; however, such a comparison may be misleading. There are 2.6 million individuals employed in the federal workforce, of which 5.9 percent are Asian American. But statistics also show that at the Senior Executive Service (SES) level, the percentage of AAPI’s is slightly over 2 percent and that this has been a static trend for some time. This could suggest that while stereotypes faced by AAPIs may have some positive benefits, e.g., that AAPIs have a good strong work ethic, are hard.working, etc., these perceptions may have also formed the framework for barriers that establish glass or “bamboo ceilings” (which prevent AAPIs from moving into the upper tiers of government) and “sticky floors,” which hold AAPIs at a particular level for a prolonged period of time.
During OFO’s discussions with a cross section of federal stakeholder groups, including FAPAC (the Federal Asian Pacific American Council) and AAGEN (the Asian American Government Executives Network), regarding issues facing AAPI federal employees, there were a number of anecdotal stories which indicated that AAPIs “were the forgotten minority,” since special emphasis programs for AAPIs in a number of agencies and departments either lack support and focus or are virtually non.existent.
In a Gallup Poll taken in 2005, survey results showed that 31 percent of AAPI workers reported incidents of discrimination, while the EEOC’s enforcement experience indicates that only about 2 percent of all charges in the private sector and slightly over 3 percent of complaints in the federal sector are filed by AAPIs. This gap seems to indicate that there is more discrimination occurring in the workplace than is being reflected in the agency’s charge and complaint inventories.
As indicated above, one of the speakers at the Commission meeting on AAP! Issues was OFO Director Carlton M. Hadden. (The reader is directed to the EEOC’s website and the July 2008 Commission meeting link for more detailed information and the statements of other presenters.117) The substance of Director Hadden’s remarks, in part, are provided below with regard to.the issue of ensuring that Asians and Native Hawaiians and Other Pacific Islanders, like all other federal employees, receive equal opportunity in all aspects of federal employment. Title VII requires federal agencies not only not to discriminate unlawfully but also to take proactive steps to ensure equal employment opportunity. Part of ensuring equal employment opportunity includes ensuring that the workplace is open to persons of all race, ethnic and national origin groups.
The federal government can be considered the employer of first choice for Asians and Native Hawaiian and Other Pacific Islanders. Overall participation of these groups consistently has been above the Civilian Labor Force availability rate and there has been appreciable improvement in the federal government’s employment record for this group over the past decade.
The percentage of Asians and Native Hawaiians/Other Pacific Islanders in the total federal workforce in FY 2006, the latest year for which we have complete data, was 6.06% while the Civilian Labor Force participation for this group is 3.80%. By comparison, ten years ago, Asians and Native Hawaiians/Other Pacific Islanders represented just 4.71 percent of the federal workforce. This is especially encouraging given that the number of Executive Branch employees of Asian and Native Hawaiian/Other Pacific Islander descent increased from approximately 81,147 to 158,236 during this same period.
An important measure in determining the integration of any group is its representation in the highest ranks of government positions. In FY 1997, Asians held 1.98% of federal jobs above Grade 15. In FY 2006, the percentage increased considerably to 3.73%.
Nevertheless, there are still barriers to the employment and advancement of Asians and Native Hawaiians/Other Pacific Islanders in the federal government. For example, Asians' and Native Hawaiians/Other Pacific Islanders' share of the senior grades is still well below their overall rate of participation in the federal workforce.
To give some perspective on how federal agencies fare in their employment of Asians and Native Hawaiians and Other Pacific Islanders, OFO identified the participation rates of these groups at the five agencies with exceptional records of employment, at the five agencies with the lowest participation rates for Asians and Native Hawaiians/Other Pacific Islanders, and across the federal government. OFO cautioned against drawing drastic conclusions about these figures as they are what OFO termed a snapshot of each agency based only on race/national origin data and do not take into consideration any number of other factors such as each agency's hiring opportunities and recruitment efforts.
The AAPI taskforce examined the representation of Asians and Native Hawaiians and other Pacific Islanders not only in the total workforce but also in the mid-level management and in senior-grade positions. The data show that while there is a large pool of Asians and Native Hawaiians to choose from in many agencies, their participation rates begin to decline at the higher levels.
In some agencies the difference between Asian and Native Hawaiian/Other Pacific Islanders' participation rates in their permanent workforce and in their mid-level management is substantial. For example, although the Department of Veterans Affairs has a 6.18% participation rate of Asian and Native Hawaiians in the permanent workforce, it has only a 2.15% participation rate for mid-level officials and managers. Unfortunately, this trend is found in many of the agencies that employ the highest percentages of Asians and Native Hawaiian/Other Pacific Islanders in their total workforce.
Unfortunately, the same pattern holds true for senior grades. Some agencies have substantial rates of participation of Asians and Native Hawaiians/Other Pacific Islanders in GS-14 and GS-15 level positions, but appear to have a glass ceiling when it comes to their employment at the SES level. For example, the Department of Health and Human Services has a 9.12% participation rate at the GS-14 level, a 6.06% participation rate at the GS-15 level, but only a 2.19% participation rate at the SES level. This sharp decline in participation of Asians and Native Hawaiians/Other Pacific Islanders at the SES level is of concern to EEOC and should be also a wake up call to those agencies where this phenomenon exists. However, OFO found that many agencies are failing to identify these issues in their workforce data and therefore are not investigating what, if any, barriers exist that may be impeding more representative participation of Asians and Native Hawaiian/Other Pacific Islanders in upper management and senior grades. The taskforce reviewed over 50 agencies’ MD-715 reports in order to determine whether agencies had identified barriers to employment for Asians and Native Hawaiian/Other Pacific Islanders.
Even though the task force’s analysis of the data revealed anomalies for these groups at each of the agencies reviewed, only about half of these agencies identified the anomalies and even fewer identified any actual barriers to employment. Of the 55 agencies that completed a written survey, only 15 identified anomalies in their workforce data regarding Asians. This discrepancy makes it evident that agencies must increase their level of awareness of the barrier analysis process in order to begin to address barriers to employment and advancement of Asians and Native Hawaiians that may exist.
Discrimination on the Basis of Genetic Information
Recently, scientists have made advances in genetics that will present challenges in the area of employment law. Specifically, scientists have been able to link certain medical conditions to genetic information. As genetic testing becomes more widespread, this issue will likely be raised in cases of disability-related accommodation and disparate treatment discrimination.
In response to concerns about the use genetic information in employment decisions, President Bill Clinton signed an Executive Order prohibiting discrimination in the Executive Branch on the basis of protected genetic information.118 Although this order created no new enforceable rights for federal employees, the Commission explained that complaints involving genetic information may be pursued under the Rehabilitation Act.119 To successfully assert coverage under the Rehabilitation Act, employees and applicants were first required to establish that they met the definition of an individual with a disability.120
In 2008, Congress passed, and President George W. Bush signed, the Genetic Information Nondiscrimination Act (GINA).121 GINA, which becomes effective in November 2009, makes it unlawful for employers to fail or refuse to hire, discharge, or otherwise discriminate against an employee with respect to compensation, terms, conditions, or privileges of employment because of the employee’s genetic information. Employers also cannot limit, segregate, or classify individuals because of genetic information. In addition, it is unlawful for employers to request, require, or purchase genetic information with respect to an employee or family member except in limited circumstances. If an employer possesses genetic information about an employee, that information shall be maintained on separate forms, and in separate medical files, and treated as a confidential medical record. The Commission will have enforcement authority with regard to the employment discrimination provisions of the Act. In addition, federal employees who are covered under Title VII will be covered under GINA.
Implications of Technology
Advances in technology have brought about many changes in the work place. Issues are being raised in the EEO complaint process that were unimaginable only a few decades ago. As progress continues to be made in areas such as computer assisted work and the virtual workplace, the implications of technology will continue to be felt in the EEO area.
The Commission has been dealing with issues of technology in the area of reasonable accommodation for many years. The Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodation so that employees with disabilities can enjoy the “benefits and privileges of employment” equal to those enjoyed by similarly-situated employees without disabilities.122 Employers must provide reasonable accommodation to enable an employee with a disability to have equal access to information communicated in the workplace, including information communicated by computer.123 For example, an employer who installs upgraded computer equipment must ensure that employees who have adaptive equipment on their computers receive the upgrades in order for the employees to be integrated into the new networks, absent an undue hardship.124
Advances in technology have also made it increasingly possible for employees to telecommute from an alternate work site, or telework from home. The Commission has stated that an employer must modify its policy concerning where work is performed, but only if the accommodation would be effective and not cause an undue hardship.125 In Ava Marshall v. Department of Agriculture,126 the Commission found that the agency failed to reasonably accommodate complainant when it did not act on her request to telework and failed to offer any accommodation in the alternative. Complainant, who had multiple sclerosis, asked to work from home, and provided a letter from her physician in support of her request. The agency took no action on complainant’s request for three months. When the request was approved by an official in the agency’s Human Resources Office, the agency then failed to make the proper arrangements to allow complainant to work at home. The Commission noted that the agency already had existing procedures for telecommuting in place, and the agency failed to establish that the cost for complainant to work at home would be an undue hardship. The Commission ordered the agency to investigate complainant’s claim for compensatory damages and adjust her leave balance as necessary.
The Commission also addressed the issue of telecommuting as a form of reasonable accommodation in Robert A. Spence v. Nuclear Regulatory Commission.127 Complainant, who had degenerative disc disease and sleep apnea, submitted a request to work at home as a form of reasonable accommodation, with medical documentation from his physician in support of his request. Complainant’s supervisor initially did not respond to the request, and another official then made several requests for additional information. The agency approved a work at home plan only after complainant sustained an injury at work over two years later. The Commission noted that, while the agency was not required to provide complainant with an accommodation of choice, it failed to provide him with any effective accommodation for over two years. In addition, the record showed that complainant had previously worked successfully at home for significant periods of time and received favorable performance ratings during those times. Thus, the Commission concluded that complainant was subjected to disability discrimination. The agency was ordered to investigate complainant’s claim for compensatory damages and provide training to the responsible management officials as to the agency’s obligations under the Rehabilitation Act.
Advances in technology have also begun to influence the EEO process itself. In Karen Allen v. United States Postal Service,128 the hearing was held by video conference. The Administrative Judge appeared from a video conferencing facility in Maryland, while the parties, their representatives, and witnesses were at a facility in Michigan near where the events giving rise to the complaint occurred. The Commission initially expressed its strong preference for in-person hearings, given the deference afforded an Administrative Judge’s post-hearing factual findings in general, and demeanor-based credibility determinations in particular. The Commission noted, however, that it had allowed the use of telephonic testimony in cases of exigent circumstances, or at the joint and voluntary request of the parties with their informed consent.129 The Commission stated that video-conferencing offers a level of observation and direct communication unavailable in a telephonic hearing, and provides a sense of presence and judicial decorum that cannot be conveyed by telephone. Further, the Commission indicated that it must look to technological advances to improve its efficiency. Thus, the Commission found that it was appropriate to allow Administrative Judges greater latitude in determining whether to conduct a hearing by video conference. The Commission outlined several safeguards which must be met in order for video-conferencing to provide an acceptable alternative to an in-person hearing. First, the Commission noted that the Administrative Judge should consider the availability and proximity of the video conferencing facility to the participants, the adequacy of the available video conferencing facility, including any technological issues, the cost involved balanced against the savings in travel time, the number of participants, and any objections by the parties. The Administrative Judge must ensure that a hearing by video conference provides a “fair and reasonable” opportunity to explain and supplement the record, and examine and cross-examine witnesses. Finally, the Administrative Judge must ensure that there are no technological problems that could impede the conduct of the hearing.
As improvements in technology become increasingly available, new issues will be raised in the EEO complaint process. For example, issues may arise concerning the use of avatars (three-dimensional characters) and the creation of a virtual workplace. In addition, the EEO complaint process itself will continue to advance in response to new technology. Agencies and the Commission can use these advances in technology to their advantage, thereby improving their operations and the EEO process.
5 See Title VII of the Civil Rights of 1964, Pub. L. 88-352, 78 Stat. 241 (1964) (codified as amended at 42 U.S.C. § 2000e (2000)) (prohibiting employment discrimination in the private sector but omitting coverage for the federal government).
9 History of EEOC at 165, 167. In 1974, the EPA and ADEA were amended to extend coverage to the federal sector. Initially, the CSC was responsible for the enforcement of the EPA and the ADEA with respect to the federal sector. Id.
12 EEOC History: 35th Anniversary: 1965 – 2000: The Law, http://www.eeoc.gov/abouteeoc/35th/thelaw/index.html.
To ensure equality of opportunity by vigorously enforcing federal legislation prohibiting discrimination in employment through investigation, conciliation, litigation, coordination, regulation in the federal sector, and through education, policy research and provision of technical assistance. History of EEOC at 184.
The Commission’s current mission statement is “[w]e promote equality of opportunity in the workplace and enforce federal laws prohibiting employment discrimination.” EEOC PERFORMANCE AND ACCOUNTABILITY REP. FY 2007. The Commission’s current vision is “[a] strong and prosperous nation secured through a fair and inclusive workplace.” Id.
23 History of EEOC at 184. After the reorganization of headquarters, the Commission in FY 1984, reorganized its field offices. The reorganization in the field resulted in a three tier structure of 22 district, 17 area, and nine local offices. 19 EEOC ANN. REP. 2 (1984).
44 1983 EEOC ANN. REP. 44; History of the EEOC at 211. MD-703, -706, -708, -709, -711, and -711A provided instructions concerning affirmative action plans for individuals with disabilities. History of EEOC at 211. MD-711 (Nov. 2, 1982) continued the basic policies established in the earlier directives. However, disabled veteran data was eliminated when OPM assumed the lead agency role for enforcement pursuant to THE VETERANS READJUSTMENT ACT OF 1974. Id.
102 2006 EEOC ANN. REP. at App. III, available at www.eeoc.gov.
109 See Instructions to Federal Agencies for EEO Management Directive 715, available at www.eeoc.gov.
111 New EEOC Publication Aimed At Increasing Opportunities For People With Disabilities in Federal Employment (August 26, 2008), http://www.eeoc.gov/press/8-26-08.html
114 EEOC Forms Federal Hispanic Work Group (May 21, 2008), http://www.eeoc.gov/press/5-21-08.html
116 EEOC Forms Federal Asian American and Pacific Islander Work Group (October 11, 2007), http://www.eeoc.gov/press/10-11-07.html
117 Commission Meeting of July 22, 2008 on Issues Facing Asian Americans and Pacific Islanders (AAPIs) in the Federal Workplace, http://www.eeoc.gov/abouteeoc/meetings/7-22-08/index.html