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

If, under the first scenario, either no selection was made or the recruitment action was cancelled, further inquiry may be appropriate. Perhaps a hiring freeze precluded filling the position initially. Cancelling the recruitment for a budget-related reason would likely withstand questions about potential violations of merit-staffing principles due to discrimination or some other possibility of a barrier to a full and open recruitment. If, however, the recruitment was cancelled, only to be re-initiated within a relatively short time-period, and the position was subsequently filled by a male candidate, questions may arise about the recruitment process and/or the actions of the selecting official(s). Further investigation to determine the cause for non-selection from the initial recruitment, which generated only female candidates, may be warranted to determine whether a violation of merit-staffing principles occurred, based on discrimination. Thus, there are numerous possible causes that affect the representational percentages among the SES within various federal agencies. Without a review of the actual recruitment action(s), however, one should not unequivocally conclude the representational status of the ERB made a difference.

Although not addressed specifically in the proposed legislation, there are arguably several activities during the SES selection process where diversity could have an impact, in terms of possibly resulting in enhanced gender diversity of initial SES appointments. These activities include: determining qualifications standards for each SES position, interviewing best-qualified candidates, and checking the references of the potential selectee prior to finalizing the selection decision.

Under Section 3392 of Title 5, U.S. Code, agency heads must establish qualification standards for each career SES position in the agency in accordance with OPM requirements before filling the position(s). OPM has set forth these requirements in 5 C.F.R. [section] 317.402, as follows:

(a) The qualifications standard must be in writing and identify the breadth and depth of the professional/technical and executive/managerial knowledge, skills, and abilities, or other qualifications, required for successful performance in the position.

(b) The standard must be specific enough to enable applicants to be rated and ranked according to their degree of qualifications when the position is being filled on a competitive basis.

(c) Each qualifications criterion in the standard must be job related. The standard may not emphasize agency-related experience, however, to the extent that it precludes otherwise well-qualified candidates from outside the agency from appointment consideration.

(d) The standard may not include--

(1) A minimum length of experience requirement beyond that authorized for similar positions in the General Schedule;

(2) A minimum education requirement beyond that authorized for similar positions in the General Schedule; or

(3) Any criterion prohibited by law or regulation. (58)

Whether the agency ERB or another group develops the qualifications standards for SES positions, diversity among the participants may enhance the quality of the resulting product, if for no other reason than the realization among all involved that the criteria required for successful job performance may not be viewed the same or performed the same by all. Clearly, any group of subject-matter experts (or those who are familiar with the duties and qualification requirements for a position) could develop acceptable qualifications standards. A diverse group, however, may improve the final standards in two ways: by drafting standards that (1) encourage applications from the broadest possible group of candidates, and (2) provide the rating and ranking panel consistency of evaluation, across all applications received.

A second activity in which diversity may improve the selection process occurs during the interview phase. Individuals involved in the rating and ranking panel for a particular position should not also participate on the interview panel for that position, to ensure a fair process. To the extent that SES interview panels reflect diversity, however, the overall selection process and outcome is enhanced, for the agency as well as for the candidate. For the agency, a diverse interview panel affords the panel, and ultimately, the selecting official, a broader assessment of the candidate's qualifications and qualities. Exposure to a diverse interview panel also provides an opportunity for the candidate to personally obtain a sense of what s/he may reasonably expect in terms of the agency's culture, different SES perspectives and personalities, and the level of inclusiveness, all of which, to varying degrees, may be gleaned from interacting with a diverse interview panel.

Third, diversity among those who conduct the reference checking phase of the selection process may provide an opportunity to assess a potential SES candidate's ECQs from a vantage broader than a static review of a resume and qualifications statement(s). Confirmation, through reference checks, of information previously learned could support assessment of the core competency of honesty/integrity or of interpersonal skills.

2. Enhanced Diversity on the QRB

The SES Diversity Act amends current law with respect to composition of the OPM QRBs. In establishing QRBs, the proposed legislation directs OPM that:

The OPM QRB process provides existing SES members a unique opportunity to be part of the merit-staffing process for new SES appointments government-wide. Statistics regarding the number of SES candidates that OPM's QRBs declined to certify, and under what criterion (A, B, or C), are not readily available. Additionally, the QRB members are required to consider only those documents which OPM provides to them for review; therefore, the role of the QRB is limited. The extent to which a diverse QRB could impact the gender diversity of initial SES selectees may be most likely to occur through the consideration of Criterion (C) cases in which, arguably, as compared to the other criteria, a holistic review of the proposed selectee is required. Otherwise, whether increased representation diversity of a particular QRB panel would necessarily result in enhanced gender diversity of new appointments to the career SES seems unclear.

3. Reporting Requirements of Diversity of the ERB and ORB

The proposed legislation establishes reporting requirements for publication of statistics that agencies and OPM would have to submit to the SESRO annually. Statistics to be collected include: the total number of career SES positions at each agency; the number of vacancies and of those, for how many vacancies the agency is seeking candidates; the number of individuals certified by an OPM QRB and their representational composition; and the representational composition of the SES, agency ERBs, and OPM's QRBs. (60) The data would be posted on the OPM internet site. (61) Finally, the proposed legislation would require that "[t]he head of each agency shall provide the [OPM] with such information" as needed for the SESRO to compile the statistics. (62)

During an April 2008 hearing on the proposed legislation, OPM's Associate Director for Strategic Human Resources Policy, Nancy Kichak, noted that the U.S. Department of Justice had advised that such requirements are likely "unconstitutional under governing equal protection precedents." (63) Collecting and posting statistics to OPM's website depicting representational data of agency ERBs and OPM's QRBs, without corresponding causal supporting evidence, could be met with potential legal complications and may unnecessarily introduce an element of distrust in the civil service merit-staffing principles.

For example, the proposed legislation amends current law by requiring that "consideration" be given to the appointment of women, racial minorities, and individuals with disabilities on ERBs and QRBs. (64) Another section of the proposed legislation, however, requires OPM to "establish and maintain annual statistics [...] on the composition of executive resources boards with regard to race, ethnicity, sex, and individuals with disabilities; and the composition of qualifications review boards with regard to race, ethnicity, sex, and individuals with disabilitiess." (65) When read together, the legislation could be construed as either indirectly or directly requiring agencies to include gender and race in their selection process. If so, this would result in a conflict with the principles of civil service merit-staffing and may also be viewed as a barrier to competition.

The requirement that agencies provide specific information regarding the representational composition of the SES, ERBs, and or QRBs may also place pressure on smaller agencies to assign ERB or QRB responsibilities to the same individual(s) over and over, in order for the OPM data posted to the website to reflect representational diversity. This may not only burden those called to serve multiple times, but may also result in other potential ERB or QRB members being denied the opportunity to serve, thereby potentially raising reverse discrimination issues.

Finally, such reporting requirements could also be viewed as disregarding the broader perspective of diversity that transcends the representational perspective of race or gender, and encompasses culture, experience, values, attitudes, etc. (66)

Conclusion

At 29.1 percent, the representation of women holding senior executive positions in the U.S. federal government lags behind the 46.3 percent of women in the U.S. labor force and the 43.2 percent of women in the U.S. federal government workforce. During the past year, Subcommittee Chairmen in both the U.S. House of Representatives and the U.S. Senate have expressed interest in the need to take action to increase the diversity of career appointees to the SES, in order to reflect the diversity of the Nation served. In furtherance of this goal, the SES Diversity Assurance Act was introduced during the 110th Congress. This Article explored the provisions of this proposed legislation that address initial selection to the SES.

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