With a work force of nearly 3 million civilians (almost 4 percent of the country's total work force), the Federal Government is the Nation's largest employer.2 There are thousands of different job categories within the Federal civil service, ranging from unskilled laborers to those involving highly complex technical and scientific skills and administrative positions of broad scope and responsibility. Although Washington, D.C., is the focal point for most Federal activity, U.S. Government employees are located throughout the country and in most places throughout the world. All issues of importance to the Nationforeign relations, rural and urban problems, social welfare, and military activities-are reflected in the variety of occupations and skills within the Federal civil service. If for no other reason than the size and diversity of its work force, the Federal Government serves as the standard bearer in the employment field for the entire country. In fact, the Government today compares favorably with private employers, as measured by such commonly accepted indicia as wage and salary levels, job security, insurance protection, vacation and sick leave benefits, retirement plans, grievance and appeal procedures, and other mechanisms designed to assure equitable treatment for all who are employed or who seek employment. But in terms of equal employment opportunity the relative position of the Federal Government is less clear. A 'As of January 1970, civilian employment in all branches of the Federal Government totaled 2,929,564, (116 Cong. Rec. E1521, Mar. 3, 1970). tradition of discrimination in the Federal service accounts in part for both the aura of suspicion and the actual shortcomings which characterize the Federal Government employment picture. For more than 50 years following passage of the Civil Service Act of 1883,3 discrimination against nonwhite employees-often total minority exclusion-was accepted practice among Federal agencies. For example, racial segregation in the Census Bureau, which was started during William Howard Taft's administration, continued into the 1920's. During President Woodrow Wilson's administration, Secretary of the Treasury William G. McAdoo and Postmaster General Albert S. Burleson established similar policies. The President condoned their actions, stating: "I would say that I do approve of segregation that is being attempted in several of the departments." In 1914, the Civil Service Commission introduced a requirement that a photograph be attached to applications for Government jobs. And during the First World War, Negro clerks employed by the Navy were required to work behind screens." Overt discrimination continued well into the administration of Franklin D. Roosevelt. For example, the congressional restaurant was still segregated in 1934, as were dual lunchrooms in many Federal agencies. Various Federal projects, most notably the Civilian Conservation Corps, embraced discriminatory practices during the New Deal era." Not until late 1940-a mere 30 years ago— did the Federal Government officially promulgate a policy of nondiscrimination. Remedial action was initiated by Congressman Robert Ramspeck of Georgia, who introduced legislation to revise the civil service, including provisions to prohibit racial discrimination. On November 7, 1940, a few weeks before passage of the Ramspeck Act, President Roosevelt issued an Executive order barring discrimina tion in employment and promotion within the Federal service.8 Thus, skepticism expressed by many minority group members about the genuineness of recent Federal pronouncements on equal employment opportunity is, at least in part, a legacy of the history of discrimination by the Federal Government, itself. If this cynicism is to be overcome, it is necessary that the Federal Government do more than merely speak out on the subject, more than adopt measures designed to bring about the desired ends. It must actually produce the kind of results that demonstrate its credibility to reduce the distrust between minority groups and their own government." B. Background and Legal Authority Although discrimination by the government because of race, creed, color, or national origin has always been contrary to constitutional principles, it is thus only within recent years that presidential directives and congressional action have reflected this fact. Federal law today is unequivocal with respect to equal employment opportunities for Federal employees. The U.S. Code states: It is the policy of the United States to insure equal employment opportunities for [Federal] employees without discrimination because of race, color, religion, sex, or national origin. The President shall use his existing authority to carry out this policy.10 Executive Order 8587 (1940). 9 Discrimination against women has also characterized Federal employment practices. The comprehensive CSC, Bureau of Management Services' Study of Employment of Women in the Federal Government 1968, contains an outline of milestones in the quest for women's rights in U.S. Government employment, and provides a detailed statistical picture of the status of women within the Federal work force, as of Oct. 31, 1966, and Oct. 31, 1968. Many of the issues discussed in the ensuing pages, e.g., training, complaint procedures, sanctions and remedies, goal setting, interagency liaison, etc., are as pertinent for women as for blacks, Mexican Americans, and other minority groups. However, numerous other problems unique to the status of women have not been dealt with in this chapter. Similarly, the Federal Women's Program and the actual function of the Federal Women's Program Coordinators in each of the agencies would have required separate treatment which was beyond the scope of the present study. 10 5 U.S.C. 7151. Executive action has outpaced that of the legislative branch. During the past quarter of a century, each of our Presidents has issued at least one Executive order dealing with equal employment opportunity in the Federal serv ice. 1. EXECUTIVE ORDERS 9980, 10590, 10925, AND 11246 In 1948, President Truman issued Executive Order 9980 setting forth "a policy of fair employment throughout the Federal establishment, without discrimination because of race, color, religion, or national origin . . . .” 11 President Eisenhower reiterated that policy in Executive Order 10590 12 and sought to have it applied in a "fair, objective, and uniform manner" by establishing the President's Committee on Government Employment Policy. A significant shift in program emphasis, from nondiscrimination to affirmative action, occurred in March 1961. Recognizing the "urgent need for expansion and strengthening of efforts to promote full equality of employment opportunity," President Kennedy promulgated Executive Order 10925, establishing the President's Committee on Equal Employment Opportunity (PCEEO).13 Kennedy directed the newly established committee to study and recommend "affirmative steps which should be taken by executive departments and agencies to realize more fully the national policy of nondiscrimination within the executive branch of the Government." 14 In 1965, President Johnson promulgated Executive Order 11246.15 Part I of that order reaffirmed the Government's policy of providing equal opportunity in Federal employment and prohibiting discrimination on the basis of race, creed, color, or national origin.16 The Civil Service Commission was called upon to "super 11 Executive Order 9981 (1948). 12 Executive Order 10590 (1955). " Executive Order 10925 (1961). 14 Executive Order 10925 (1961), sec. 201. 15 Executive Order 11246 (1965). Part II of this order, which deals with "Nondiscrimination in Employment by Government Contractors and Subcontractors" is much more specific and rigorous with respect to duties imposed on contractors than is Part I with respect to Federal agencies' responsibilities. 16 Executive Order 11375 (1967) amended Executive Order 11246 to prohibit discrimination on the basis of sex. vise and provide leadership and guidance in the conduct of equal employment opportunity programs . . . within the executive departments and agencies and . . . review agency program accomplishments periodically." CSC was further authorized to issue appropriate regulations, orders, and instructions with which agencies were directed to comply. In addition, CSC was directed to consider complaints of discrimination in Federal employment and to hear appeals of decisions following impartial review of the agency involved. Agencies themselves were charged with establishing and maintaining a "positive program of equal employment opportunity for all civilian employees and applicants . . . .” 17 " 17 After consultation with minority and civil rights organizations, unions, and Federal agencies, the Civil Service Commission issued comprehensive equal employment opportunity regulations which outlined action program requirements for agencies and an improved system for the processing of individual complaints of discrimination. 2. CSC'S ROLE UNDER EXECUTIVE ORDER 11246 Despite this mandate, CSC's role under Executive Order 11246 was more characterized by passivity than by "leadership"; more by neutrality than by "guidance." A January 1969 memorandum prepared for John W. Macy, Jr., then CSC Chairman, by the staff of the Community Relations Service, in cooperation with several high level black Federal officials, was sharply critical of the equal employment opportunity posture of the Federal Government and, specifically, of CSC's performance under the Executive order.18 The memorandum stressed that "application of the merit system without regard to existing preferential practices and procedures is tantamount to ignoring the most prevalent form of discrimination in employment." 19 Indeed, as the memorandum "19 pointed out, the CSC approach, which focused primarily on problems of overt discrimination, failed to significantly affect most of the more subtle, pervasive, and institutionalized forms of bias.20 It was also charged that CSC avoided "defining acceptable standards of performance against which realistic measurements of progress" might be made; failed to act energetically to eliminate racial and cultural bias in examinations; permitted agencies to follow traditional (and hence discriminatory) methods in promotion policies; was hesistant to recommend, much less require, adequate data systems by race, to enable agency equal employment opportunity programs to be adequately evaluated; and failed to establish within its own agency the necessary centralized, high level structure for adequately directing and coordinating equal employment opportunity efforts.21 3. CONTINUING INEQUITIES IN FEDERAL EMPLOYMENT Whether judged by absolute numbers, grade levels, agency functions, or geographic distribution, employment disparities were evident. 20 Robert Hampton, Chairman of the CSC, has recently indicated to this Commission that: "[E]qual employment opportunity under our merit system is not a program to offer special privilege to any one group of persons because of their particular race, religion, sex, or national origin. Equal employment opportunity applies to all persons including those of different races, women, handicapped persons, veterans, rehabilitated offenders, and others. It means the elimination of any discrimination on factors irrelevant to the job. It means helping persons without the necessary skills to gain those skills so they can qualify and compete for a job and advancement. It means making all segments of the population fully aware of employment opportunities. It means the removal of unnecessary barriers to the employment of particular groups of persons and it means support of community activities designed to facilitate employment of persons who otherwise might not have the opportunity. In short, it means the taking of affirmative action to make it possible for all groups of persons, including those who are disadvantaged educationally or otherwise, regardless of their race, sex, or national origin, to compete for Federal employment on an equal footing with other citizens. Letter from Robert E. Hampton, Chairman, Civil Service Commission, to Howard A. Glickstein, Staff Director, U.S. Commission on Civil Rights, July 24, 1970." 21 Id., at 5, et seq. For example, 1967 data 22 showed less than 70,000 Spanish Americans [this category includes Mexican Americans, Puerto Ricans, and others of Latin American or Spanish origin or ancestry] out of a total of more than 212 million Federal employees-2.6 percent of the work force despite the fact that there are an estimated 10 million Spanish Americans in the United States-approximately 5 percent of our total population.23 24 Nearly 15 percent [399,842] of Federal employees were Negroes, according to the 1967 study. The postal service alone, with 18.9 percent Negro employment, accounted for onethird of the total. Minority representation in other agencies was less impressive. For example, fewer than 5 percent of Department of the Interior employees were Negro; National Aeronautics and Space Administration (NASA) had less than 1,000 blacks among its more than 33,000 employees-a 2.9 percent representation. Certain bureaus, divisions, and occupational categories within the various agencies presented an even more dismal picture. For example, despite the high proportion of nonwhites in the Post Office, only 16 minority group employees could be counted within the elite cadre of 1,134 postal inspectors as of April 1968. The picture was even more discouraging with respect to rural carriers. Within this category, only 161 (slightly more than one-half of 1 percent) of 31,071 employees were from minority groups according to July 1968 data.25 The Federal Aviation Administration, a component agency of the Department of Transportation, employing more than 20,000 air traf 22 U.S. Civil Service Commission, Study of Minority Group Employment in the Federal Government (1967) at 155. 23 Census data as of Nov. 30, 1969, show an increase in employment of Spanish surnamed workers to 73,619 from 68,945 in 1967. Spanish surnamed employees now comprise approximately 2.8 percent of the Federal work force. CSC News Release, May 14, 1970. fic controllers as of June 30, 1969, had fewer than 550 minority employees within this occupational group. Moreover, there were only 13 nonwhites among the 1,612 supervisory and administrative personnel in GS grades 14 through 18. The category of flight standards inspectors was filled by 1,764 employees of whom 27 were nonwhite. Of these, only two were among the 428 employees at GS-14 and above.26 Taking into account the racial composition of certain areas in the country, disparities in minority employment are often even more striking. Census data for November 1967 for the Atlanta Civil Service Region 27 is illustrative. Negro employment, listed at 13.1 percent, is overwhelmingly concentrated at the lowest pay levels. Thus, only 130 out of more than 25,000 GS-12 through GS-18 employees were Negro (0.5 percent of the total). Less than 1 percent of wage-board employees earning $8,000 or more per year were black. And among 538 Postal Field Service (PFS) employees in grades 12 through 20, there were only three Negroes. 28 During the past decade, the ratio of Negroes to whites in the Federal service has slightly exceeded the ratio of Negroes to whites in the total U.S. population.29 However, year after year, most black employees have been consistently concentrated at the lower end of the salary scale within every pay plan. A comparison of 1962 and 1967 data is revealing. In the former year, 0.8 percent of all employees in GS-12 through GS-18 positions were Negro. By November 1967, the percentage had only risen to 1.8. Wage-board and Postal Field Service pay categories showed fast er rates of improvement, although the 1967 picture still reflected gross underrepresentation of Negroes in better paying jobs.30 Spanish American 31 employees fared no better than blacks during the same period. In 1962, this group constituted 2.2 percent of all Federal employees.32 By November 1967, the percentage had only risen to 2.6. And in 1967, Spanish Americans were a mere 0.6 percent of Federal employees earning more than $8,000 per year. 4. PRESIDENT NIXON'S MESSAGE EXECUTIVE ORDER 11478 Shortly after taking office, President Richard M. Nixon called on the Chairman of the Civil Service Commission to review the Government's efforts to achieve equal employment opportunity and make recommendations for policy and program changes.33 Based on CSC's report 34 the President issued Executive Order 11478 on August 8, 1969,35 prefacing it with a statement reemphasizing several points made in the report. The President's statement underscored the following points: 1. Assuring equal employment opportunity in a Federal department or agency is the responsibility of the organization's head. 2. Equal employment opportunity must be * In June 1962, 0.6 percent of wage-board employees earning over $8,000 per year were black; by November 1967, the figure had risen to 3.9. Postal Field Service showed 0.4 percent black employment in June 1962 in PFS grades 12 thru 20, and 2.4 percent in November 1967 in PFS 12 through 20 positions. Negro employment in PFS grades 13 thru 21 had risen to nearly 3.7 percent as of November 1969 according to information published in a May 14, 1970 CSC News Release. "As used in reporting Federal employment data for 1967, the term "Spanish American" included persons of Mexican American, Puerto Rican, and other Latin American or Spanish origin or ancestry. Currently, the terminology "Spanish surnamed" has replaced "Spanish American." come an integral part of day-to-day management. 3. Emphasis should be on best possible utilization of the skills and potential of the present work force. Opportunities to improve skills and serve at supervisory and administrative levels should be provided. 4. Efforts to publicize opportunities in the Federal Government at professional levels should be widespread so that persons from diverse ethnic, racial, and religious backgrounds can assume positions of leadership. 5. The Government must provide special employment programs for the economically and educationally disadvantaged. Executive Order 11478 extends and enlarges the policy enunciated in previous Executive orders. By its terms agencies are required to establish and maintain an affirmative program of equal employment opportunity, including provision of sufficient resources to administer the program. Full utilization of present skills of each employee is called for. Other measures include: providing maximum opportunity for employees to enhance their skills; offering managerial and supervisory training designed to assure understanding and implementation of the Federal policy; and expanding recruitment activities and local level efforts designed to reach all sources of job candidates and to improve community conditions affecting employability. The Civil Service Commission is directed to review and evaluate agency program operations, obtain necessary reports, and advise the President as is appropriate on overall progress. 5. CSC'S RESPONSE CHAIRMAN HAMPTON'S STATEMENT Two weeks after Executive Order 11478 was promulgated, CSC announced a staff reorganization designed to implement "the newly strengthened program . . . . "36 On Septem ber 4, 1970, a meeting was convened of Department Assistant Secretaries for Administration, agency executive directors, directors of Equal Employment Opportunity, directors of personnel, and coordinators for the Federal women's program, to discuss plans for carrying out the new directives on equal opportunity. In a statement distributed to participants 36 CSC News Release, Aug. 25, 1969. |