Title 5

Appendix to Part 720 - Guidelines for the Development of a Federal Recruitment Program To Implement 5 U.S.C. Section 7201, as Amended 1

5:2.0.1.1.3.5.1.2.1 :

Appendix to Part 720 - Guidelines for the Development of a Federal Recruitment Program To Implement 5 U.S.C. Section 7201, as Amended 1

1 This section originally was section 701(b) (2nd Proviso) of the Civil Rights Act of 1964 (Pub. L. 88-352, July 2, 1964), codified as 5 U.S.C. 7151. Section 7151 was further amended by section 310 of the Civil Service Reform Act of 1978. This Act also redesignated section 7151 as section 7201, effective January 11, 1979. (Sec. 703(a)(1) of the Act.)

I. Background Information. A. In 1964 the Congress adopted a basic anti-discrimination policy for Federal employment, stating:

It is the policy of the United States to insure equal employment opportunities for employees without discrimination because of race, color, religion, sex or national origin. [5 U.S.C. 7151] 2

2 Ibid.

In 1978, Congress reaffirmed and amended this policy as part of the Civil Service Reform Act of 1978 [Sec. 310 of Pub. L. 95-454], requiring immediate development of a recruitment program designed to eliminate underrepresentation of minority groups in specific Federal job categories. Section 310 directs the Equal Employment Opportunity Commission:

1. To establish Guidelines proposed to be used for a program designed to eliminate such underrepresentation;

2. To make, in consultation with OPM, initial determinations of underrepresentation which are proposed to be used in this program; and

3. To transmit the determinations made under (2) above to the Executive Agencies, the Office of Personnel Management and the Congress, within 60 days of enactment.

The Office of Personnel Management (OPM) 3 is directed by this amendment:

3 This Office was created by Reorganization Plan No. 2, issued pursuant to 5 U.S.C. 901 et seq. It will assume personnel management functions of the present Office of Personnel Management on January 1, 1979.

1. To issue regulations to implement a program under EEOC Guidelines within 180 days after enactment, which shall provide that Executive agencies conduct continuing recruitment programs to carry out the anti-discrimination policy in a manner designed to eliminate underrepresentation in identified categories of civil service;

2. To provide continuing assistance to Federal agencies in carrying out such programs;

3. To conduct a continuing program of evaluation and oversight to determine the effectiveness of such programs;

4. To establish occupational, professional and other groupings within which appropriate recruitment will occur, based upon the determinations of underrepresentation pursuant to these Guidelines; and

5. To report annually to the Congress on this program, not later than January 31 of each year.

Congress further directed that the recruitment program must be administered consistent with provisions of Reorganization Plan No. 1 of 1978. 4

4 Conference Report on Civil Service Reform Act of 1978, No. 95-1272, p. 145.

B. In framing these Guidelines and making its initial determinations of underrepresentation, the Equal Employment Opportunity Commission (Commission) is acting pursuant to its obligations and authority under 5 U.S.C. 7201, as amended; Section 717 of title VII of the Civil Rights Act of 1964, as amended; Reorganization Plan No. 1 of 1978 (issued pursuant to 5 U.S.C. 901 et seq.) and Executive Order 12067, issued under this Plan (43 FR 28967, June 30, 1978). This Commission must develop and/or ensure the development of uniform, coherent and effective standards for administration and enforcement of all Federal anti-discrimination and equal employment opportunity laws, policies and programs, and to ensure the elimination of duplication and inconsistency in such programs.

C. A review of the legislative history of Federal equal employment opportunity policy provides further guidance on the scope and nature of determinations and guidelines to be issued for this program.

The basic policy statement on Federal equal employment policy enacted by the Congress in 1964 (5 U.S.C. 7151, redesignated as section 7201) gave the President authority for implementation. Executive Order 11246 (1966), expanded and superseded by Executive Order 11478 (1969) with respect to Federal employment, required Federal agencies to develop affirmative action programs designed to eliminate discrimination and assure equal employment opportunity.

In 1972, Congress found that serious discrimination persisted in Federal employment. It found that minorities and women were significantly absent at higher levels in Federal employment, and severely underrepresented in some Federal agencies and in some geographic areas where they constituted significant proportions of the population. After a detailed review of Federal employment practices and statistics, the Congress concluded that:

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. 5

5 Legislative History of the Equal Employment Opportunity Act of 1972, p. 83. See pp. 82-86 and 421-425 for Congressional Findings.

Congress found that this exclusion resulted from overt and “systemic” discriminatory practices.

These findings, among others, led Congress to extend title VII coverage to Federal employment in Section 717 of the Equal Employment Opportunity Act of 1972.

The Civil Service Reform Act of 1978 clearly states, for the first time, that “it is the policy of the United States * * * to provide * * * a Federal workforce reflective of the Nation's diversity * * *” 6 The Act establishes in law as the first merit principle that recruitment should be designed to achieve a Federal workforce from “all segments of society.” Among the personnel practices prohibited by the Act is discrimination prohibited under title VII of the Civil Rights Act of 1964, as amended. 7 Therefore, the Civil Service Reform Act and its directive for a special recruitment program clearly unite requirements for basic Federal personnel policy with requirements for Federal equal employment policy.

6 Civil Service Reform Act of 1978, Section 3.

7 Section 101(a) of the Act, 5 U.S.C. 2301(b)(1) and 2302(b)(1)(A), as amended.

It is clear from the legislative history of Federal equal employment policy that the legal standards of title VII must be applied to Federal employment. Thus, guidelines for a recruitment program designed to eliminate underrepresentation in Federal agency employment must be developed consistent with the framework of affirmative action programs.

D. Guided by the review of the legislative history, and the responsibilities and authorities cited in I(B) of this appendix, the Commission is issuing these Guidelines to provide a framework for development of recruitment program regulations by OPM. The Commission may later provide more detailed guidance, through consultation with OPM, designed to achieve an overall Federal equal employment program which is consistent with, and which effectively implements title VII requirements.

II. Initial Determinations of Underrepresentation. A. Pursuant to Section 7201, underrepresentation exists when the percentages of minority and female Federal employees in specific grades are less than their percentages in the civilian labor force. “Minority” refers only to those groups classified as “minority” for the purpose of data collection by the Commission and OPM in furtherance of Federal equal employment opportunity policies. The civilian labor force includes all persons 16 years of age and over except the armed forces, who are employed or seeking employment. Such a determination of underrepresentation is designated in these Guidelines as “below the Section 7201 level”.

B. The Commission has examined existing data on Federal employment and the civilian labor force and has made initial determinations of underrepresentation of groups by race, national origin and sex in specific grades of the major Federal pay systems, under the legal authorities cited in I(B), of this appendix.

C. The Table which follows shows the grades at which the percentage of each group in the Federal workforce falls below its percentage in the civilian labor force. The table covers four major Federal pay systems which account for more than 95 percent of Federal employees, excluding the Postal Service. 8

8 The initial determinations are based on data for only those agencies covered by the Civil Service Reform Act of 1978. The Commission will make subsequent determinations on other agencies covered by title VII, e.g. the U.S. Postal Service, TVA, Central Intelligence Agency, Federal Reserve Board.