May 5, 2003

Carlton M. Hadden

Director, Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 19848, Mail Stop: MD715

Washington, DC 20036

E-Mail: carlton.hadden@eeoc.gov

Dear Mr. Hadden:

INTRODUCTION

The members of the Council of Federal EEO and Civil Rights Executives would like to thank the Equal Employment Opportunity Commission for providing an opportunity for stakeholders to comment on the draft Management Directive 715. As you are aware, the Council is made up of EEO professionals throughout the country who possess a wealth of experience on civil rights issues. Consequently, we want to bring this practical experience to bear on the revision of this important Management Directive.

PRAISE

Integrating three management directives (MD 712, 713, and 714) into one (MD 715) is a step in the right direction. It will simplify the job of EEO Offices to prepare and market their affirmative action plans on minorities, women, and people with disabilities to managers and executives.

Additionally, we appreciate that EEOC will require federal agencies to maintain systems that track applicant flow data. There are many federal agencies that still have not requested approval from the Office of Management and Budget for their applicant flow form. Without this form, agencies cannot determine the effectiveness of their recruitment trips and cannot decide which job fairs are worth going back to and which ones to drop. Thus, the applicant flow data will bring a measure of accountability to the recruitment efforts in the Federal Government, and support the goal for the strategic management of human capital contained in the President’s Management Agenda.

RECOMMENDATIONS

(page numbers correspond with those used in MD 715)

We note that p. 1-14 do not mention minorities and women. Your previous annual reports demonstrate clearly that although great strides have been made in improving the representation of minorities and women in the federal sector, there still remains a lot of work to achieve a level playing field. To illustrate our point, the following excerpt is taken from the EEOC’s Annual Report on the Federal Work Force for Fiscal Year 2001: “It is the responsibility of the EEOC to monitor federal agency compliance with EEO laws and procedures and to review and assess the effect of agency employment programs on minorities, women and people with disabilities.” Moreover, as one of the goals of MD 715 is to explain the intent of Title VII, we cite the following regulation (29 C.F.R. 1608.1(b)) which clarifies the purpose of Title VII: “Congress enacted title VII in order to improve the economic and social conditions of minorities and women by providing equality of opportunity in the work place.” Thus, to maintain the intent of Congress, we suggest that you reinstate minorities and women to pages 1-14 of MD 715.

MD 715 requires agencies to ascertain the accuracy of the data submitted to EEOC (p. ii, (9)(a)(3)). We recommend that all federal agencies utilize the Office of Personnel Management’s Fed Scope database at http://www.fedscope.opm.gov. However, OPM will have to make one slight modification to this database to facilitate its use for EEO purposes. While OPM has available the RNO information for the records found in the Fed Scope database, it has refrained from using them because of Privacy Act concerns. We suggest that a way to get around these concerns is for OPM to limit the use of this information to EEO offices that have been assigned a password. We also do not object to OPM charging an annual fee to agencies for using the database. Federal agencies would much prefer to pay this fee than to have to procure and maintain their own databases, in addition to having to hire employees with the necessary computer skills to monitor them. By adopting this recommendation, EEOC will also address the perennial concern of federal practitioners of having to report the same data to OPM and EEOC.

MD 715 assigns responsibility to EEOC to communicate the results of all agency EEO programs that it has evaluated to each agency (p. ii, (b)(2)). We recommend that EEOC should add a 5-month due date to submit these reports to the agencies. The Council has received anecdotal evidence in the past of agencies that have not received their reports five years after EEOC has evaluated them.

MD 715 is silent on the previous requirement to submit underrepresentation analyses to EEOC. Instead, MD 715 only requires the submission of self-assessment studies regarding barrier analyses. It is precisely the underrepresentation analyses and the comparison of statistical data with other federal agencies that provided the catalyst for congressional staffs, internal and external employee organizations, and agencies’ political and career executives to take proactive steps to enhance the diversity of their workforces. Without these statistical analyses, there will not be any agreement regarding what constitutes a barrier and what does not. Consequently, there will not be any significant progress in diversifying the workforce at a time when the opportunity will be the greatest because of all the employees who will be retirement eligible. It is not enough to conduct these underrepresentation analyses for internal purposes. They should be submitted annually to EEOC for reporting and comparison purposes. In addition, barrier analyses should only be conducted in response to underrepresentation challenges.

The Council has taken a strong position regarding the enforcement of the MD 110 and 29 C.F.R. 1614.102(b)(4) requirement to have EEO Directors report to agency heads. The Council has even written its own position paper, which can be viewed on the What’s New directory at http://www.fedcivilrights.org. Thus, we support the MD 715 language “to maintain a reporting structure that provides the agency’s EEO Director with regular access to the agency head and other senior management officials” (p. 3, (B)), as long as it is a clarification/addition (and not a substitution) of the mandate enunciated in MD 110 and 29 C.F.R. 1614.102(b)(4). If this is EEOC’s intent, we agree that EEO Directors should have not only titular access to agency heads, but also real and regular access to them.

MD 715 (p. 4-14) does not mention the Supreme Court decision in Adarand Constructors Inc. v. Pena, 115 S.Ct. 2097 (1995). We think that EEOC should answer and clarify the following questions from this decision:

1) Under what conditions may federal agencies consider race/ethnicity in selections and related employment decisions? Is the answer: a) Never. This is a prohibited personnel practice; b) only when selecting from among equally qualified candidates; c) only when an agency’s official Affirmative Action Plan includes a properly established goal to eliminate underrepresentation; d) only when expressly authorized by Congress; e) only for remedial instances of past discrimination; f) for remedial purposes, but also for non-remedial purposes when there is evidence of gross statistical disparities; g) only for outreach and recruitment purposes; h) to advance the agency’s operational objectives in order to be effective and have the cooperation and confidence of the community.

2) How will agencies determine underrepresentation (p. 8-14)? The Department of Justice’s Guidance on Adarand calls for the use of the 2-standard deviation model that was used in the Supreme Court decision at Hazelwood v. United States, 433 U.S. 299 (1977). For example, the draft MD-715 mentions on p. 13 about statistical disparities. How will you measure these? Similarly, on the same page, it asserts that “agencies must assess the appropriateness of any policy practice, procedure, or condition determined to negatively correlate with race, ethnicity or gender.” How do you measure a negative correlation with race, ethnicity or gender? Again, in the example on p. 12, there is a reference to “... if a self -assessment revealed that Hispanics are virtually absent from the workforce of a facility ...” What is virtually absent? Are affirmative measures to be taken only when a there are zero (virtually absent?) members of a group in a specific job category?

3) MD-715 states on p. 9 that “A first step in conducting this self-assessment involves looking at the racial, ethnic and gender profile of relevant occupational categories in an agency’s workforce.” The Department of Justice’s Guidance on the Adarand decision calls for job specific comparisons. For example, it stipulates that to determine the underepresentation of African-American engineers, an agency must compare the percentage of African-American engineers employed by the agency and the percentage of African-American engineers in the civilian labor force. Thus, MD 715 needs to clarify which benchmarks will be used for comparison purposes.

MD 715 should clarify whether the only Special Emphasis Program Managers that agencies are allowed to have are those mentioned in 29 C.F.R. 1614.102(b)(4)—ones for the People with Disabilities Program, Federal Women’s Program and the Hispanic Employment Program)—or can they also have these types of managers for other programs like the one for Asian American/Pacific Islander Program and for the American Indian Program.

MD 715 uses on p. 11 the 1990 census categories. Considering that MD 715 should be a forward-looking document, we suggest that EEOC adopt the following categories from the 2000 census:

--American Indian or Alaska Native. A person having origins in any of the original peoples of North and South America (including Central America), and who maintains tribal affiliation or community attachment.

-- Asian. A person having origins in any of the original peoples of the Far East, Southeast Asia, or the Indian subcontinent including, for example, Cambodia, China, India, Japan, Korea, Malaysia, Pakistan, the Philippine Islands, Thailand, and Vietnam.

-- Black or African American. A person having origins in any of the black racial groups of Africa. Terms such as "Haitian" or "Negro" can be used in addition to "Black or African American."

-- Hispanic/Latino/Spanish Origin. A person of Cuban, Mexican, Puerto Rican, South or Central American, or other Spanish culture or origin, regardless of race. The term, "Spanish origin," can be used in addition to "Hispanic or Latino."

-- Native Hawaiian or Other Pacific Islander. A person having origins in any of the original peoples of Hawaii, Guam, Samoa, or other Pacific Islands.

-- White. A person having origins in any of the original peoples of Europe, the Middle East, or North Africa.

(In addition, EEOC should get a special dispensation from OMB to ignore reporting on the multiracial categories).

MD 715 should provide guidance on the appropriateness of routing promotion/hiring certificates through the EEO Office for compliance with affirmative action goals. Similarly, guidance is requested on whether an agency can: 1) indicate on a promotion/hiring certificate the race and national origin (RNO) of all applicants; 2) inform a selection official that a promotion/certificate contains an applicant from a particular minority group that has never occupied that position; 3) require a selecting official to justify to a higher level manager the non-selection of a candidate from an underrepresented minority group.

Fix the typo on p. 13, section IV, first paragraph, fifth sentence from “... several options to consider is designing” to “several options to consider in designing.”

MD 715, on p. 25, requires agencies with 1,000 employees or more to establish specific goals for the employment and advancement of individuals with targeted disabilities. What benchmarks will be used, as the Census Bureau does not have any Civilian Labor Force benchmarks for these populations.

MD 715 calls, on p. 25-26, on federal agencies, to accomplish established goals, to take disability into account in selection decisions where an individual with a disability is otherwise qualified with or without a reasonable accommodation. Can you do the same for minorities and women? If the answer no, how can you integrate a report with data for minorities, women, and disabilities, and have different standards for each?

We hope that the adoption of these recommendations will make MD 715 a more useful document.

Sincerely,

Jorge E. Ponce

Delia L. Johnson

Co-Chairs, Council of Federal EEO and Civil Rights Executives