The U.S. federal Senior Executive Service (SES) and gender diversity: would proposed legislation enhancing the representational

The Senior Executive Service (SES) corps consists of high-level managers throughout the U.S. federal government who hold positions just below the level of presidential appointee. Career members of the SES provide a link between politically appointed leaders and the rest of the federal workforce to oversee and operate government programs and activities. (1) As of September 2007, women comprised 46.3 percent of the U.S. labor force, (2) 43.2 percent of the U.S. federal government workforce, (3) and 29.1 percent of career members of the SEN. (4) If the senior-most leadership corps of the federal government is supposed to reflect the broader labor force, then gender diversity in the SES is a topic ripe for discussion.

During the 110th Congress (2007-2008), legislation was introduced in both the U.S. House of Representatives and the U.S. Senate to provide for greater diversity within, and to improve policy direction and oversight of, the SES. (5) Titled the Senior Executive Service Diversity Assurance Act (SES Diversity Act), the legislation creates a Senior Executive Service Resource Office (SESRO) within the U.S. Office of Personnel Management (OPM), with a mission to:

* improve the efficiency, effectiveness, and productivity of the SES through policy formulation and oversight;

* advance the professionalism of the SES; and

* ensure that, in seeking to achieve a[n] SES reflective of the nation's diversity, recruitment is from qualified individuals from appropriate sources. (6)

As of the date this Article was submitted for publication, the SES Diversity Act has not become law. The proposed legislation was introduced, in part, due to legislative concern that "there are flaws in the selection process, and [...] a lack of oversight and accountability when it comes to promoting and hiring minorities in the SEN." (7) This concern and a continuing interest among legislators, as illustrated in part by the number of reports they have requested during recent years from the U.S. Government Accountability Office (GAO) addressing diversity in the SES, suggests the SES Diversity Act or similar legislation, will be introduced and possibly enacted during the next Congress. This Article explores the provisions of the proposed legislation that address initial selection to the SES, including the likely effect of these provisions, if passed as drafted, on agencies to increase gender diversity within the SES.

Gender Diversity in Federal Employment

Title VII of the Civil Rights Act of 1964 (Title VII) (8) protects employees and applicants from discrimination in compensation, and in terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, or national origin. More than ten years after enacting Title VII, Congress determined that minorities and women were underrepresented in certain federal agencies and at higher levels of federal government employment. (9) The Congress concluded: "The disproportionate distribution of minorities and women throughout the federal bureaucracy and their exclusion from higher level policy-making and supervisory positions indicates the government's failure to pursue its [...] policy of equal employment opportunity." (10)

Finding the exclusion of minorities and women to be the result of systemic discriminatory practices, Congress extended Title VII coverage to include federal employment. In passing the Civil Service Reform Act of 1978, (11) (CSRA), Congress stated that "it is the policy of the United States [...] to provide [...] a federal workforce reflective of the Nation's diversity." (12) The CSRA established that recruitment should be designed to achieve a federal workforce from "all segments of society." (13) Thus, employment decisions for federal government positions may not be based on stereotypes or assumptions about abilities, traits, or performance due to sex (gender). (14)

Talent Management and Federal Agency Responsibilities

Ensuring agencies have qualified, capable leaders available to keep government running smoothly is a crucial responsibility for human resources professionals and for agency leadership. Talent management has been defined as a process of "identifying, assessing, acquiring, developing, and deploying employees who are critical to the company's success." (15) Talent management has also been defined as an outcome of "ensur[ing] the right person is in the right job at the right time." (16) And, talent management has been defined as including not only leadership succession planning, but also development of all workers, at all levels. (17) As applicable to federal agencies, OPM has defined talent management to be a system "that addresses competency gaps, particularly in mission-critical occupations, by implementing and maintaining programs to attract, acquire, develop, promote, and retain quality talent." (18)

In implementing their talent management activities, federal agencies must seek to achieve representations of various protected classes in all job groups, reflective of the overall U.S. civilian workforce, in order to comply with the requirements of anti-discrimination laws. (19) Federal agencies conduct merit-based recruitment activities for career positions within the federal workplace. (20) To that end, agencies must ensure the following:

* Recruitment should be from qualified individuals from appropriate sources in an endeavor to achieve a workforce from all segments of society, and selection and advancement should be determined solely on the basis of relative ability, knowledge and skills, after fair and open competition which assures that all receive equal opportunity. (21)

* All employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, or handicapping condition, and with proper regard for their privacy and constitutional rights. (22)

As part of their statutory or regulatory responsibilities, OPM and the Equal Employment Opportunity Commission (EEOC) have a lead role in enforcing, overseeing, and administering equal employment opportunity and merit system principles throughout the federal government. The OPM administers and enforces application of merit system principles throughout federal workplaces and also oversees agency human capital programs, including the activities of the Chief Human Capital Officer (CHCO) Council. (23) The EEOC enforces Title VII and related anti-discrimination laws, and also oversees agency EEO programs. (24)

Federal agencies are required, by law, to review and report annually on the status of their workforce, both to OPM and to EEOC. For instance, through the Federal Equal Opportunity Recruitment Program (FEORP) report, (25) agencies update OPM on their activities geared toward eliminating underrepresentation of women or members of a minority in specific federal job categories, (26) Through the Human Capital Assessment and Accountability Framework (HCAAF) (27) agencies demonstrate to OPM strategies in place to improve and/or maintain workforce diversity. Agencies also file annual reports with OPM addressing specific talent management actions directed to specific populations of workers, including veterans, Hispanics, and individuals with disabilities. In accordance with EEOC's Management Directive 715 (MD-715), agencies evaluate their workforce data annually using designated benchmarks, including the civilian labor force, for potential barriers that could restrict or limit opportunities for open competition in the workplace. (28) For purposes of the MD-715, a barrier may include any agency policy, principle, or practice that limits or tends to limit employment opportunities for those of a particular gender, race, or ethnic background, or based on an individual's disability status. (29) Low representational rates in an agency, for example, are considered indicative of a potential barrier. If one or more potential barriers are identified, the agency must examine all related policies, procedures, and practices to determine if an actual barrier exists. Where barriers are present, agencies must undertake actions to eliminate them. (30)

From a broader perspective, in accordance with its charter, the CHCO Council "advises and coordinates the activities of members' agencies on such matters as the modernization of human resources systems, improved quality of human resources information, and legislation affecting human resources operations and organizations." (31) The CHCO Council must report its prior year activities annually to Congress. (32)

Gender Diversity Among Career SES

Congress established the SES to "ensure that the executive management of the Government of the United States is responsive to the needs, policies, and goals of the nation and otherwise is of the highest quality." (33) The SES corps includes both non-career appointees and career appointees. Non-career appointees serve in time-limited positions and are appointed by and serve at the pleasure of the political appointing authority. Career appointees serve in positions that are not time limited and that afford incumbents certain civil service entitlements and protections. Unlike non-career members of the SES, initial appointment of career members of the SES must occur through a competitive merit staffing process. (34) According to GAO, there are approximately 6,555 career members of the SES who implement policy, provide leadership, and oversee the operations of government programs through approximately 75 agencies. (35) OPM oversees the allocations of SES positions throughout the government and among agencies to ensure the number of positions reserved for career members remains within the overall number that must be maintained government-wide. (36)

Print Get the Mag Weekly Updates