Affirmative action in federal employment: good intentions run amuck?

Introduction

Affirmative action programs have been a mainstay of efforts to obtain equality of opportunity for minority employees in the federal government for more than 40 years.

Since the early 1960's, considerable efforts have been made by Congress and the executive branch to ensure that all people have equal access to employment and advancement in the federal government regardless of race. In 1961, President John F. Kennedy took forceful action to correct imbalances in the employment of minority group members in the federal government. By issuing Executive Order 10925, Kennedy not only reaffirmed the previous policies of equality of opportunity regardless of race but also required affirmative action to achieve equality of opportunity for employees in the federal government. President Lyndon B. Johnson strengthened President Kennedy's efforts by issuing Executive Order 11246 in 1965 that required the identification of underrepresented racial minorities in the federal government and the formulation of specific programs to eliminate this under-representation via affirmation action. President Richard Nixon further strengthened affirmative action by issuing Executive Order 11478 in 1969 requiring that equal employment opportunity be an integral part of every aspect of personnel policy and practice in the employment, development, advancement, and treatment of civilian employees of the federal government.

Legal Requirements of EEO

Equal employment in the federal government regardless of race has been codified into law. Although Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment on the basis or race, color, sex, religion, or national origin, did not originally apply to federal employment, the Equal Employment Opportunity Act of 1972 amended the Civil Rights Act of 1964 to include federal employment. The Equal Employment Opportunity Act of 1972 basically combined Title VII and Executive Order 11478 into law establishing the requirement that all personnel actions in the federal government be free from discrimination.

Fine tuning of equal employment opportunity requirements in the federal government has continued through the 1990s. The Civil Service Reform Act of 1978 required special recruitment programs to eliminate under-representation of minority group members in the federal workforce. The Act established diversity in the federal government as a requirement to ensure that the government's workforce reflected the diversity of the nation as a whole. The Act, which was implemented by Executive Order 12067 in 1978, also changed responsibility for equal employment opportunity in the federal government from the U.S. Civil Service Commission to the Equal Employment Opportunity Commission (EEOC). The Civil Rights Act of 1991 provided for monetary damages in cases of intentional employment discrimination and entitled a complainant to a jury trial once their case reached a court. In 1999, the EEOC issued a Federal Sector Equal Employment Opportunity Final Rule addressing the continuing perception of unfairness and inefficiency in the complaint process. (1) Thus by 2000, Congress and the executive branch had provided sufficient legislation and directives to eliminate under-representations of all minority group members in the federal workforce.

Minority Demographics

As can be seen in Table 1, the percentage of minority population in the United States has risen since 1960. Naturally, early EEO efforts were focused on the employment of African Americans, rather than all minority groups. In the past 20 years however, the population of African Americans has grown by only 28 percent, while the Asian population has tripled and the Hispanic population has doubled, suggesting a need for the federal government to continually adjust its affirmative action priorities.

Since the federal government is a national employer, studies of the effectiveness of equal employment opportunity programs in the federal government must include all positions funded by the federal government in all regions of the United States. In the early years of EEO, critics would attempt to discredit findings of discriminate hiring by the federal government through claims of a lack of accessibility of minority applicants due to region of residency or educational achievements. That argument was not valid then and is not valid now. Evaluations of EEO in federal employment must be based on national population statistics and total federal employment analysis.

Purpose of the Study

Although numerous studies of federal employment have indicated equal opportunity efforts have been successful and minority group employment has improved over the past 40 years, (2) the critical question is, "has equality of opportunity actually been achieved?" Public policy on equal employment opportunity has evolved over time. In 1964, Senator Hubert Humphrey, in defending the Civil Rights Act of 1964, vehemently denied charges that it would lead to forced racial balancing. By 1996, Representative Sheila Jackson Lee was opposing legislation that she thought would undermine the policy of racial balancing that grew up around the Civil Rights Act of 1964. (3) Whereas many studies of equal employment opportunity look at the progress the federal government has made in employing minority group members, it is time to evaluate the outcome of the original purpose of affirmative action. Namely, is the federal government truly an equal opportunity employer regardless of race? The purpose of this study is to examine whether affirmative action programs, which are intended to assure equality of opportunity for minority group members, have actually resulted in the equal employment of all minority group members in the federal government.

Methodology

Criteria

In analyzing federal employment data to determine the equality of opportunity of minority group members in federal employment, a workforce utilization analysis has been conducted. Workforce utilization analysis compares the composition of an organization's workforce with its labor market. Parity is achieved when the organization's workforce reflects the racial composition of the available labor market. (4) For the purpose of this study, equality of opportunity will be achieved when the proportion of minority group members working in the federal government (in each of the various occupational categories) will be about equal to their proportion in the labor force. This criterion of equality of opportunity has been supported by the federal government. The Uniform Guidelines on Employee Selection Procedure confirms that equal employment opportunity is the law of the land and in the public sector of society this means that all persons regardless of race, color, religion or national origin shall have equal access to positions in the public service. (5) The federal government further proclaims that the goal of affirmative action is to achieve genuine equal employment opportunity for all qualified persons and that any selection procedure which has an adverse impact on hiring will be considered to be discriminatory. (6) When it is decided that equality of opportunity is not present, affirmative action steps should be taken, which may include the establishment of specific goals and timetables to remedy the situation. (7) Thus, the criterion of parity appears to be fully supported by EEOC.

Two U.S. Supreme Court decisions in the early 1970s also strengthened the concept of equality of opportunity. In Griggs v. Duke Power Company (1971), the U.S. Supreme Court established the principle that the effect of an employment practice and not the intent is the key to a violation of the Civil Rights Act of 1964. Even though an employment procedure may be neutral in its intent, if the employment practice has a disproportionately adverse impact on protected classes, then the practice must be justified by business necessity. In McDonnell Douglas Corporation v. Green, the U.S. Supreme Court (1973) defined the elements needed to establish a prima facie case of discrimination in order to shift the burden of proof from the employee to the employer. In equal employment opportunity cases, complainants present evidence and arguments to support claims of discrimination. If those arguments cannot be rebutted with additional evidence by the federal government, the claim is generally supported by the courts. In the equal employment opportunity area, the lack of statistical parity in the utilization of minority group members has been sufficient to make a primafacie case for discrimination.

Classification of Minority Group Members

Minority group members have been classified into five categories for the purpose of this study: African American, Hispanic, Asian or Pacific Islander (Asian), American Indian or Alaskan Native (Natives), and "Others." With the exception of the "Others" category, this classification system follows the EEOC guidelines that specify that the term "minority" is used to mean four particular groups who share a race, color or national origin. (8)

African American (except Hispanic): A person having origins in any of the black racial groups of Africa.

American Indian or Alaskan Native (Natives): A person having origins in any of the original peoples of North American, and who maintain their culture through a tribe or community.

Asian or Pacific Islander (Asian): A person having origins in any of the original people of the Far East, Southeast Asian, India, or Pacific Islands.

Hispanic: A person of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish culture or origin, regardless of race.