Equal Employment Opportunity
Hiring, Promotion, and Discipline Processes at DEA Gao ID: GAO-03-413 June 10, 2003A 1981 U.S. District Court decision found that the Drug Enforcement Administration (DEA) had discriminated against African American special agents in a number of personnel practices. Over the years, the plaintiffs and DEA had agreed to remedies in many of these areas. However, minority representatives continued to raise issues in three areas--hiring, promotion, and discipline. GAO was asked to examine DEA's current processes for hiring, promoting, and disciplining special agents, and provide information about racial, ethnicity, and gender differences in these three areas.
During the October 1997 through March 2002 period, African American, Hispanic, and white applicants to be special agents passed DEA's medical requirements and interview process at about the same rates. However, African American and Hispanic applicants had lower passing rates on (1) the test of an applicant's ability to recall and write about a video of a drug-related enforcement action and (2) suitability requirements measured through a background investigation and other tests. DEA's hiring procedures are based on criteria in federal regulations, professional standards, and standards established by subject matter experts. However, DEA had not studied its hiring requirements to see why its procedures resulted in different selection rates and whether they could be modified to reduce differences while maintaining the high standards necessary for special agents. There were no statistically significant differences in promotion rates among the various racial, ethnic, and gender groups during fiscal years 1997 through 2001. DEA has a rigorous and validated competency-based process that uses job simulations to assess capabilities at the target grade level. However, the job-relatedness of a key step involving recommending special agents for promotion had not been established and our analysis showed that African American and Hispanic special agents were recommended for promotion at significantly lower rates. Despite differences in recommendation rates, DEA's promotion decisions mirrored the race, ethnic, and gender makeup of the agency's special agent workforce. Additionally, the agency, working with a diverse panel of special agents, subsequently developed a revised recommendation process. At the time of GAO's review, DEA and the African American representatives were involved in mediation to reach final agreement. Disciplinary data for fiscal years 1997 to 2001 showed that the proportion of African American, Hispanic, and women special agents disciplined for misconduct was significantly higher than their representation in the DEA special agent workforce. These higher rates reflect that African Americans, Hispanics, and women had a significantly higher percentage of allegations of misconduct lodged against them and that a significantly higher percentage of these allegations were substantiated by investigations and resulted in disciplinary action. A recent study by an outside contractor found DEA's disciplinary process to be fair and nondiscriminatory, but that study only considered African Americans and whites and not women or other minority groups.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Team: Phone:GAO-03-413, Equal Employment Opportunity: Hiring, Promotion, and Discipline Processes at DEA
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Report to the Honorable Eddie Bernice Johnson, House of
Representatives:
June 2003:
Equal Employment Opportunity:
Hiring, Promotion, and Discipline Processes at DEA:
GAO-03-413:
GAO Highlights:
Highlights of GAO-03-413, a report to the Honorable Eddie Bernice
Johnson, House of Representatives
Why GAO Did This Study:
A 1981 U.S. District Court decision found that the Drug Enforcement
Administration (DEA) had discriminated against African American
special agents in a number of personnel practices. Over the years, the
plaintiffs and DEA had agreed to remedies in many of these areas.
However, minority representatives continued to raise issues in three
areas”hiring, promotion, and discipline. GAO was asked to examine
DEA‘s current processes for hiring, promoting, and disciplining
special agents, and provide information about racial, ethnicity, and
gender differences in these three areas.
What GAO Found:
During the October 1997 through March 2002 period, African American,
Hispanic, and white applicants to be special agents passed DEA‘s
medical requirements and interview process at about the same rates.
However, African American and Hispanic applicants had lower passing
rates on (1) the test of an applicant‘s ability to recall and write
about a video of a drug-related enforcement action and (2) suitability
requirements measured through a background investigation and other
tests. DEA‘s hiring procedures are based on criteria in federal
regulations, professional standards, and standards established by
subject matter experts. However, DEA had not studied its hiring
requirements to see why its procedures resulted in different selection
rates and whether they could be modified to reduce differences while
maintaining the high standards necessary for special agents.
There were no statistically significant differences in promotion rates
among the various racial, ethnic, and gender groups during fiscal
years 1997 through 2001. DEA has a rigorous and validated competency-
based process that uses job simulations to assess capabilities at the
target grade level. However, the job-relatedness of a key step
involving recommending special agents for promotion had not been
established and our analysis showed that African American and Hispanic
special agents were recommended for promotion at significantly lower
rates. Despite differences in recommendation rates, DEA‘s promotion
decisions mirrored the race, ethnic, and gender makeup of the agency‘s
special agent workforce. Additionally, the agency, working with a
diverse panel of special agents, subsequently developed a revised
recommendation process. At the time of GAO‘s review, DEA and the
African American representatives were involved in mediation to reach
final agreement.
Disciplinary data for fiscal years 1997 to 2001 showed that the
proportion of African American, Hispanic, and women special agents
disciplined for misconduct was significantly higher than their
representation in the DEA special agent workforce. These higher rates
reflect that African Americans, Hispanics, and women had a
significantly higher percentage of allegations of misconduct lodged
against them and that a significantly higher percentage of these
allegations were substantiated by investigations and resulted in
disciplinary action. A recent study by an outside contractor found
DEA‘s disciplinary process to be fair and nondiscriminatory, but that
study only considered African Americans and whites and not women or
other minority groups.
What GAO Recommends:
GAO recommendations to DEA include
* initiating a process to monitor hiring results to identify
differences in selection rates among groups, determine why they occur,
and what, if anything, can be done to reduce the differences while
maintaining high standards and
* expanding the study of disciplinary actions taken against African
American versus white special agents to determine whether discipline
is administered fairly to all racial, ethnic, and gender groups of
special agents.
In commenting on this report, the Acting Administrator of DEA agreed
with our recommendations and listed a number of actions being taken to
implement them.
www.gao.gov/cgi-bin/getrpt?GAO-03-413.
To view the full report, including the scope and methodology, click on
the link above. For more information, contact Victor S. Rezendes at
(202) 512-6808.
[End of section]
Letter:
Results in Brief:
Background:
The Diversity of DEA's Special Agent Workforce:
A Higher Proportion of Minority Applicants Did Not Meet Hiring
Requirements:
No Statistically Significant Differences in Promotion Rates:
DEA's Discipline Process Has Been Found to Be Nondiscriminatory:
Employee Views on Promotion and Discipline:
Conclusions:
Recommendations for Executive Action:
Agency Comments and Our Evaluation:
Appendixes:
Appendix I: Objectives, Scope, and Methodology:
DEA Special Agent Workforce Diversity:
DEA‘s Hiring, Promotion, and Discipline Processes:
Appendix II: Physical Task Test Minimum Requirements:
Appendix III: Competencies in Assessing GS-13 and GS-14 Special Agents
for Promotion:
Performance Rating Competencies for GS-13 and GS-14 Special Agents:
Competencies Measured by Assessment Center Job Simulations:
Interim Special Agent in Charge/Office Head Recommendation Process:
Proposed SAC/Office Head Recommendation Process:
Appendix IV: Comments from the Drug Enforcement Administration:
Tables:
Table 1: Demographic Distribution of the Federal Workforce and Criminal
Investigators (Special Agents) in DEA, Governmentwide, and the
Nonfederal Workforce:
Table 2: Demographics of DEA's Special Agent Workforce, 1980-2002:
Table 3: Distribution of DEA Special Agents in Nonsupervisory,
Supervisory, and SES Positions by EEO Group, September 2002:
Table 4: Demographic Profile of Applicants under BA-98-01 and BA-20-00,
October 15, 1997, to March 31, 2002:
Table 5: Percentage of Applicants Meeting Minimum Requirements under BA-
98-01 and BA-20-00, October 15, 1997, to March 31, 2002:
Table 6: Percentage of Applicants Passing Written Assessment under BA-
98-01 and BA-20-00, October 15, 1997, to March 31, 2002:
Table 7: Applicant Interview Passing Rates under BA-98-01 and BA-20-00,
October 15, 1997, to March 31, 2002:
Table 8: Applicant Medical Examination Passing Rates under BA-98-01 and
BA-20-00, October 15, 1997, to March 31, 2002:
Table 9: Percentage of Applicants Passing the Physical Task Test under
BA-98-01 and BA-20-00, October 15, 1997, to March 31, 2002:
Table 10: Percentage of Applicants Found Suitable under BA-98-01 and BA-
20-00, October 15, 1997, to March 31, 2002:
Table 11: Percentage of Applicants Found Suitable by the 1811 Hiring
Panel, September 29, 2000, to May 7, 2002:
Table 12: Overall Selection Rates for Applicants for Whom DEA Made
Hiring Eligibility Determinations under BA-98-01 and BA-20-00, by EEO
Group, October 15, 1997, to March 31, 2002:
Table 13: Demographic Profile of Applicants Who Met Minimum Requirements
and Applicants Hired under BA-98-01 and BA-20-00, October 15, 1997, to
March 31, 2002:
Table 14: Special Agents Participating in the SAPP, 1997-2001:
Table 15: Average SAPP Scores, 1997-2001:
Table 16: Frequency of Applicants Appearing on Best-Qualified Lists
Being Recommended by SACs, 2000-01:
Table 17: Individuals on at Least One Best-Qualified List from Which
Promotions Were Made and Individuals Selected for Promotion, by EEO
Group, Fiscal Years 1997-2001:
Table 18: Special Agents Disciplined Compared with Special Agent
Population, by EEO Group, Fiscal Years 1997-2001:
Table 19: Distribution of Cases of Alleged Misconduct Involving Special
Agents, by EEO Group, Compared with Workforce Representation, Fiscal
Years 1997-2001:
Table 20: Cases of Alleged Misconduct Involving Special Agents That
Resulted in Disciplinary Action, by EEO Group, Fiscal Years 1997-2001:
Table 21: DEA Physical Task Test Minimum Performance Requirements:
Table 22: Performance Rating Competencies for GS-13 and GS-14 Special
Agents:
Table 23: Competencies Measured by Assessment Center Job Simulations in
2001:
Abbreviations:
ARTS: Agent Recruiting and Tracking System:
EEO: equal employment opportunity:
EEOC: Equal Employment Opportunity Commission:
GS: General Schedule:
DEA: Drug Enforcement Administration:
MSPB: Merit Systems Protection Board:
OPM: Office of Personnel Management:
OPR: Office of Professional Responsibility :
SAC: Special Agent in Charge:
SAPP: Special Agent Promotion Program:
SES: senior executive service:
Letter June 10, 2003:
The Honorable Eddie Bernice Johnson
House of Representatives:
Dear Ms. Johnson:
In 1981, ruling on a class action racial discrimination lawsuit brought
by African American special agents, a U.S. district court found that
the Drug Enforcement Administration (DEA)[Footnote 1] had discriminated
against the agents in a variety of personnel practices. Some 20 years
have passed since the initial decision, and not all areas covered by
the court's orders have been finalized, particularly in regard to
promotions. In your role as Chair of the Congressional Black Caucus,
minority representatives of DEA's special agents continued to raise
issues with you about some of the personnel practices at DEA. Based on
discussions with your office, we agreed to (1) develop information on
the diversity of DEA's special agent workforce and (2) examine the
processes DEA has put in place to provide for fair and
nondiscriminatory hiring, promoting, and disciplining of special agents
and provide information about racial, ethnic, and gender differences in
those three areas.
With regard to the diversity of DEA's special agent workforce, we
developed information by race, ethnicity, and gender for each pay grade
level. To examine DEA's processes for hiring, promoting, and
disciplining special agents, we reviewed policies and procedures and
discussed them with knowledgeable officials and representatives of
groups representing minority special agents. To identify the results
that have been achieved, we analyzed data by race, ethnicity, and
gender generally for fiscal years 1997 through 2001, the 5 most recent
fiscal years for which data were available, with regard to how
applicants fared at each step of DEA's hiring process, promotions of
special agents to the General Schedule (GS) grade 14 and 15 levels, and
disciplinary actions taken. Our analyses were not designed to prove or
disprove discrimination; rather, they were designed to provide
information about race, ethnicity, and gender differences in personnel
actions. In analyzing hiring actions, we used the 80 percent rule set
out in the federal government's Uniform Guidelines on Employee
Selection Procedures. Under the 80 percent rule, a selection rate for a
racial, ethnic, or gender group that is less than 80 percent of the
selection rate for the group with the highest rate is considered a
substantially different rate of selection that usually requires an
employer to study the job relatedness of selection procedures. To
analyze differences in promotion and disciplinary actions, we used
standard statistical techniques. We did our work from September 2001
through February 2003 in accordance with generally accepted government
auditing standards. Further details about our methodology are discussed
in appendix I.
Results in Brief:
The diversity of DEA's special agent (criminal investigator) workforce
was below overall government workforce percentages but generally
comparable with the governmentwide population of criminal
investigators, except for women. In September 2002, whites made up 80.3
percent, African Americans 8.2 percent, Hispanics 8.8 percent, Asian/
Pacific Islanders 2.2 percent, and Native Americans 0.5 percent of
DEA's special agents. These percentages compared with governmentwide
criminal investigator levels of 80.3 percent white, 7.1 percent African
American, 8.9 percent Hispanic, 2.7 percent Asian/Pacific Islanders,
and 1 percent Native American. Women were 8.3 percent of special agents
in DEA but 16.4 percent of criminal investigators governmentwide.
Minority representation in DEA's special agent workforce resembles an
inverted pyramid, with proportional representation of minority special
agents in senior executive service (SES) and supervisory special agent
positions higher than in nonsupervisory positions. In September 2002,
minorities represented 36.7 percent of SES special agents, 23.2 percent
of supervisory special agents, and 18.4 percent of the nonsupervisory
agents. Women, on the other hand, were 8.8 percent of the
nonsupervisory special agents, which was more than their representation
among supervisory special agents (6.6 percent) but less than their
representation among SES special agents (10.2 percent). Because of the
relatively low representation of minorities and women in the lower
ranks of special agents, DEA could face problems in enhancing, or even
maintaining, diversity in the upper ranks in the near future as
attrition occurs, especially if DEA experiences a high level of
retirements like that expected governmentwide. However, DEA does not
have a clear picture of future workforce trends because the agency has
not prepared a workforce analysis that takes into account the
demographics of the workforce, including age, grade, retirement
eligibility, and expected retirements over the next 5-year or longer
period.
Our analysis of DEA's hiring decisions showed that a higher proportion
of minority applicants did not meet the requirements to become a
special agent at some steps in the hiring process. We found that in
applying the 80 percent rule, African American men, Hispanic men, and
Hispanic women had substantially lower passing rates on the written
test intended to measure the ability to observe and recall details and
write. In addition, African Americans (men and women) had substantially
lower rates of being found suitable for hiring as a special agent,
based on the results of background investigations, psychological
evaluations, and polygraph tests. Overall, DEA hired 13.7 percent of
African American applicants, 15.8 percent of Hispanic applicants, and
22.9 percent of white applicants. The proportion of white applicants
hired was substantially higher than that of the two minority groups.
The Uniform Guidelines require employers to study the job-relatedness
of selection procedures when there are substantial differences in the
selection rate for any race, ethnic, and gender group. Although DEA's
hiring procedures are based on criteria in federal regulations,
professional standards, or standards established by subject matter
experts, the agency had not studied why its procedures resulted in
different selection rates and whether they could be modified to reduce
differences while maintaining high standards.
Our analysis showed no statistically significant differences in
promotion rates among the various racial, ethnic, and gender groups.
However, issues regarding promotions of African Americans to GS-14 and
GS-15 special agent positions remain in litigation because the court
found in 1999 that DEA's promotion process did not fully comply with
title VII of the Civil Rights Act. Although DEA has a validated process
to assess special agents' promotion potential, the 1999 court decision
found that a subsequent step involving recommendations to the selecting
authority by the office heads with vacancies of specific special agents
on the best-qualified lists had resulted in an underrepresentation of
African American special agents compared with whites, and that this
step had not been validated. Interim measures modifying the
recommendation process had not eliminated this situation. Although
DEA's monitoring and reporting of promotion process results gave
particular attention to African American special agents, our analysis
also showed that Hispanics were recommended at statistically
significant lower rates than white special agents, particularly
applicants for GS-14 positions. Although DEA has developed a
recommendation process, the agency and the plaintiffs need to resolve
issues about implementation and procedures for monitoring the results
before the proposed process can be put in place. In addition, the court
must approve the process.
Our analysis of disciplinary data for fiscal years 1997 through 2001
showed that the proportion of African American, Hispanic, and women
special agents disciplined for misconduct was substantially higher than
their representation in the DEA special agent workforce and that this
difference was statistically significant. During fiscal years 1997
through 2001, African Americans made up 8.3 percent of the special
agent workforce but accounted for about 16 percent of the agents
disciplined. Similarly, Hispanics, while making up 8.9 percent of the
special agent workforce during the same time period, accounted for
about 15 percent of agents disciplined. Women, who made up 7.8 percent
of special agents during fiscal years 1997 through 2001, accounted for
about 13 percent of agents disciplined. These higher rates reflect that
African American, Hispanic, and women special agents had a
proportionately higher number of allegations of misconduct lodged
against them and that a higher proportion of these allegations were
substantiated by investigations and resulted in disciplinary actions.
DEA does not know why these differences exist nor does any study offer
a reason for them. However, the results of two studies by outside
contractors, approved by an oversight group and which we found
methodologically sound, found DEA's disciplinary process to be fair and
nondiscriminatory. The most recent of these studies, however, compared
only disciplinary actions of African American and white special agents.
Disciplinary actions related to other minorities and women have not
been studied since 1986.
Although there were no statistically significant differences in the
promotion rates among the racial, ethnic, and gender groups and studies
found DEA's disciplinary process to be fair and nondiscriminatory,
minority and women special agents perceived that these processes were
not fair and had a disparate effect on minorities. The perceptions may
have been driven in part by a lack of data and other information
because DEA did not widely share analyses of its promotion and
discipline processes with the special agent workforce. Sharing such
data could help special agents formulate informed views about the
fairness and equity of the promotion and discipline processes.
We recommend that DEA (1) prepare a workforce analysis that takes into
account expected attrition to guide DEA's recruiting and hiring, (2)
initiate a process to monitor hiring process results, (3) monitor
promotion recommendation rates among the racial, ethnic, and gender
groups, (4) expand the study of disciplinary actions to include all
racial, ethnic, and gender groups, and (5) share information about
promotion and discipline processes with its special agent workforce.
In commenting on this report, the Acting Administrator of DEA agreed
with our recommendations and listed a number of actions DEA was taking
to implement them.
Background:
Under title VII of the Civil Rights Act of 1964, as amended,[Footnote
2] it is unlawful for employers to discriminate against employees or
job applicants on the basis of race, color, religion, sex, or national
origin. Other civil rights statutes prohibit discrimination based on
age or disability.[Footnote 3] Under these laws, it is illegal to
discriminate in any aspect of the terms and conditions of employment,
including hiring, firing, disciplinary actions, promotion, pay
assignments, and training. In addition, for federal civilian employees,
Executive Order 13087 prohibits discrimination based on sexual
orientation and the Office of Personnel Management (OPM) has
interpreted the Civil Service Reform Act of 1978[Footnote 4] to
prohibit sexual orientation discrimination in the federal
workplace.[Footnote 5]
Intentionally treating people differently on account of their race,
color, religion, sex, national origin, age, or disability is called
"disparate treatment."[Footnote 6] Title VII prohibits not only
intentional discrimination, but also practices that have the effect of
discriminating against individuals because of their race, color,
national origin, religion, or sex. Personnel policies that are neutral
on their face but have a substantially different though unintended
affect on a group are said to have a "disparate impact" or "adverse
impact." In general, the use of any procedure that has an adverse
impact on the hiring, promotion, or other employment actions of members
of any race, gender, or ethnic group is considered to be discriminatory
unless the procedure is shown to be job related and consistent with
business necessity.[Footnote 7]
Uniform Guidelines on Employee Selection Procedures:
The Uniform Guidelines on Employee Selection Procedures,[Footnote 8]
adopted in 1978 by the Equal Employment Opportunity Commission (EEOC),
the Civil Service Commission (the predecessor agency to OPM), and the
departments of Justice and Labor, provide a uniform set of principles
governing use of employee selection procedures and identifying adverse
impact. The guidelines apply to tests and other selection procedures
that are used to make employment decisions, including hiring,
promotion, and discipline.
Under the guidelines, adverse impact is a substantially different rate
of selection in hiring, promotion, or other employment decisions that
works to the disadvantage of a race, ethnic, or gender group.
Specifically, a selection rate for any group that is less than 80
percent of the selection rate for the group with the highest rate is
generally regarded as evidence of adverse impact. This is not a legal
definition of discrimination; rather, it is a rule of thumb or
guideline that is a practical means of keeping an agency's attention on
different selection rates in personnel actions and on the procedures
they use. Tests of statistical significance may be used in lieu of the
80 percent rule. The guidelines call for adverse impact determinations
to be made for each racial, ethnic, or gender group.
When adverse impact is identified, the Uniform Guidelines generally
require employers to conduct validity studies to determine the job-
relatedness of a procedure or its business necessity. The guidelines
also call for an employer to make a reasonable effort to become aware
of suitable alternative selection procedures and methods that have as
little adverse impact as possible and to investigate those that are
suitable. The guidelines recognize validation strategies of the
American Psychological Association, and the validation provisions of
the guidelines are designed to be consistent with the generally
accepted standards of the psychological profession. One approach is
"content validity," which determines whether the selection tests and
measures used are representative of the knowledge, skills, and
abilities necessary for a job.
Litigation History:
In February 1981, the U.S. District Court for the District of Columbia
ruled on a class action lawsuit, commonly known as the Segar
case,[Footnote 9] finding that DEA had discriminated against African
American special agents.[Footnote 10] The court found that DEA's
personnel practices had an adverse impact on African American special
agents in terms of salary, grade at entry, supervisory evaluations,
discipline, and promotions. In addition, the court found evidence of
disparate treatment in work assignments because of the way in which DEA
used African American special agents for undercover operations. The
court found no discrimination in the type of appointments or in
training of special agents, and found that allegations of harassment
and reprisal were unsubstantiated. The court did not rule on issues
relating to hiring that DEA and the plaintiff class had already
settled.
The court ordered DEA to change its procedures and conduct validity
studies on those changes in order to provide for effective,
nondiscriminatory supervisory evaluation, discipline, and promotion
systems. To oversee the implementation of its orders, two groups were
established. One is called the "Working Group." Its mission is to help
ensure that the orders of the court requiring DEA to develop and
validate nondiscriminatory personnel practices are carried out. The
Working Group is made up of three industrial psychologists--two from
OPM and one representing the plaintiff class members. The other group
is called the "Equal Employment Opportunity Monitoring Committee" or
Monitoring Committee. Made up of eight African American special agents
representing plaintiff class members, this committee monitors DEA's
compliance with the court's orders. The committee also is to help
facilitate informal resolutions of disputes.
Over the years, all issues raised in the court's findings, except with
regard to the process for promoting special agents to the GS-14 and GS-
15 levels and creating a career development program, have been resolved
through court-approved agreements between the plaintiff class and DEA.
In September 1999, the district court ruled on a motion for compliance
brought by the plaintiff class that claimed adverse impact in
promotions of African American special agents to managerial GS-14 and
GS-15 positions.[Footnote 11] The plaintiffs argued that there were
disparities in two steps of the multistep promotion process. They
alleged that one step in the process, called the Special Agent
Promotion Program (SAPP), which involves assessing candidates' job-
related knowledge and skills through job simulations, had an adverse
impact on African Americans, thereby decreasing their opportunities to
be placed on best-qualified lists for promotion. The plaintiffs further
argued that they were adversely impacted by another step in the
process, whereby DEA senior executives--special agents in charge (SAC)
and other office heads--for the offices advertising promotion
opportunities, recommended a select few from a best qualified candidate
list to DEA's Career Board, the head of which ultimately makes
promotion decisions. However, the plaintiffs did not claim that there
was adverse impact in the ultimate number of promotions. According to
the court decision, the plaintiffs stated that "some of the expected
effect of denying African American agents spots on the [SAC/office head
lists] is not visible in the ultimate number of promotions because the
Career Board tends to 'overselect' African American agents when they
appear on [SAC/office head lists], and also when the Career Board
bypasses the [SAC/office head list].":
In its ruling, the court noted that the use of the SAPP caused an
adverse impact despite its having been validated. Although the court
did not conclude that the use of the SAPP violated title VII, it
ordered DEA to implement a career development program to reduce the
acknowledged
disparate impact of the SAPP.[Footnote 12] The court found that the
process for recommendations made by SACs and office heads did have an
adverse impact on African American special agents. In its analysis, the
court said that "the fact that some of the discriminatory effect of the
use of [SAC/office head recommendations] may not appear in ultimate
hiring decisions, because the Career Board appears to be more likely to
select African Americans when they do appear, does not excuse the use
of a discriminatory device earlier in the process." The court concluded
that the SAC/office head recommendation process violated title VII, and
enjoined DEA from using such recommendations in making promotion
decisions until their use had been validated as job related. As a
result, DEA suspended promotions to GS-14 and GS-15 special agent
positions. DEA and the plaintiffs subsequently entered into a court-
approved agreement in January 2000 allowing DEA to temporarily use SAC/
office head recommendations for promotion decisions in accordance with
certain terms and conditions, until DEA created a permanent, validated
process for using SAC/office head recommendations.
At the time of our review, DEA, working with the plaintiff class and
other employees, had developed a recommendation process. The Working
Group approved this process, which met the requirements of content
validity as described in the Uniform Guidelines on Employee Selection
Procedures.[Footnote 13] A diverse six-person panel of senior managers
appointed by the DEA Administrator and under the direction of an
industrial psychologist accomplished validation. In terms of job-
relatedness, panel members first individually reviewed descriptions of
each competency to be assessed in the SAC/office head recommendation
process and the weight each competency would receive. The panel then
analyzed the knowledge, skills, and abilities required for GS-14 and
GS-15 special agent positions; rated their importance to these
positions; and individually linked the knowledge, skills, and abilities
to the competencies.[Footnote 14] The panel members followed the same
process for tasks required of GS-14 and GS-15 special agents. Final
agreement between the plaintiffs and DEA, particularly with regard to
procedures for monitoring the implementation of the recommendation
process, and approval by the court remained to be accomplished as of
March 2003.
The Diversity of DEA's Special Agent Workforce:
In September 2002, 4,481 (about 51 percent) of DEA's 8,726 employees
were criminal investigators (in the 1811 occupational series), better
known as special agents. Special agents conduct investigations, perform
surveillance, infiltrate drug trafficking organizations, confiscate
illegal drugs, arrest violators, collect and prepare evidence, and
testify in criminal court cases.
Data from DEA showed that in September 2002, whites made up 80.3
percent, African Americans 8.2 percent, Hispanics 8.8 percent, Asian/
Pacific Islanders 2.2 percent, and Native Americans 0.5 percent of the
agency's special agents. Women made up 8.3 percent of DEA's special
agents. The diversity of DEA's special agent workforce was below
overall government workforce percentages but generally comparable with
the governmentwide population of criminal investigators, except for
women whose representation was about half that of criminal
investigators governmentwide. (See table 1.):
Table 1: Demographic Distribution of the Federal Workforce and Criminal
Investigators (Special Agents) in DEA, Governmentwide, and the
Nonfederal Workforce:
Overall federal workforce (September 2002); Asian/Pacific Islander:
4.5%; African American: 17.6%; Hispanic: 6.9%; Native American: 2.0%;
White: 69.0%; Women: 44.0%.
Criminal Investigators:
DEA (September 2002); Asian/Pacific Islander: 2.2%; African American:
8.2%; Hispanic: 8.8%; Native American: 0.5%; White: 80.3%; Women: 8.3%.
Governmentwide (September 2002); Asian/Pacific Islander: 2.7%; African
American: 7.1%; Hispanic: 8.9%; Native American: 1.0%; White: 80.3%;
Women: 16.4%.
Nonfederal (1990 census)[A]; Asian/Pacific Islander: 1.0%; African
American: 11.4%; Hispanic: 6.5%; Native American: 0.8%; White: 80.3%;
Women: 12.0%.
Source: OPM and DEA.
Note: Racial and ethnic categories include men and women; the women
category includes women of all races and ethnicities.
[A] Includes accident investigators, police officers, traffic officers,
police department chauffers, private investigators, detectives,
criminal investigators, and narcotics investigators.
[End of table]
Table 1 is not a measure of the appropriateness of DEA's diversity but
rather a comparison of it with other law enforcement groups. The table
includes another common measure of diversity--the nonfederal law
enforcement labor force--that is derived from the decennial census and
includes individuals working in nonfederal law enforcement and
security-related occupations that OPM, EEOC, and the Department of
Labor consider comparable to the 1811 occupational series. In addition
to the governmentwide criminal investigator workforce, DEA compares its
special agent workforce to the nonfederal law enforcement labor force.
The overall minority representation in DEA's special agent workforce is
comparable to the nonfederal law enforcement labor force, although
there is some variation in the representation of the various minority
groups. DEA has a lower representation of Native Americans and African
Americans while having a higher representation of Asian/Pacific
Islanders and Hispanics. Representation of DEA's women special agents
is lower, compared with the nonfederal law enforcement labor force.
However, there are several limitations to these data. First, these
figures are dated in that they are based on the 1990 census. Figures
based on the 2000 census will not be available until the fall of 2003,
according to an official with OPM's Office of Diversity. Additionally,
the data are based on a wide variety of police, detective, and public
service occupations that include traffic officers and police department
chauffeurs as well as criminal investigators and narcotics officers. A
further problem with the nonfederal law enforcement labor force data is
that they do not distinguish educational attainment of those working in
comparable 1811 occupations--DEA requires a 4-year college degree.
Workforce Trends--1980-2002:
Over the last two decades, the overall representation of minorities in
DEA special agent positions hardly changed, increasing from 19.1
percent in 1980 to 19.7 percent in 2002, while the representation of
women increased, from 2.3 percent in 1980 to 8.3 percent in 2002. While
minority representation in DEA's special agent workforce showed
increases during the 1980s, it decreased after 1990. Only Asian/Pacific
Islanders continued to increase throughout the 1980-2002 time frame.
(See table 2.):
Table 2: Demographics of DEA's Special Agent Workforce, 1980-2002:
Year[A]: 1980; Asian/Pacific Islander: 1.1%; African American: 7.9%;
Hispanic: 9.5%; Native American: 0.6%; Total minorities: 19.1%; White:
80.9%; Women: 2.3%.
Year[A]: 1985; Asian/Pacific Islander: 1.2%; African American: 9.2%;
Hispanic: 9.9%; Native American: 0.8%; Total minorities: 21.1%; White:
78.9%; Women: 7.2%.
Year[A]: 1990; Asian/Pacific Islander: 1.4%; African American: 10.0%;
Hispanic: 10.0%; Native American: 0.8%; Total minorities: 22.2%; White:
77.8%; Women: 7.1%.
Year[A]: 1995; Asian/Pacific Islander: 1.9%; African American: 9.5%;
Hispanic: 9.7%; Native American: 0.6%; Total minorities: 21.7%; White:
78.3%; Women: 7.6%.
Year[A]: 2000; Asian/Pacific Islander: 2.1%; African American: 8.2%;
Hispanic: 8.9%; Native American: 0.6%; Total minorities: 19.8%; White:
80.2%; Women: 8.0%.
Year[A]: 2002; Asian/Pacific Islander: 2.2%; African American: 8.2%;
Hispanic: 8.8%; Native American: 0.5%; Total minorities: 19.7%; White:
80.3%; Women: 8.3%.
Source: Fiscal years 1980-2000, OPM. Fiscal year 2002, DEA.
Note: Racial and ethnic categories include men and women; the women
category includes women of all races and ethnicities.
[A] As of September for each year indicated.
[End of table]
When looked at from a grade standpoint, minority representation in
DEA's special agent workforce resembles an inverted pyramid.
Representation of minority special agents in Senior Executive Service
(SES) and supervisory special agent (GS-14 and GS-15) positions is
higher than in nonsupervisory (GS-7 to GS-13) ranks. (See table 3.) In
September 2002, 36.7 percent of DEA's SES special agents, 23.2 percent
of supervisors, and 18.4 percent of nonsupervisory special agents were
members of minority groups. This was particularly noticeable for
African American and Hispanic special agents. African Americans were
12.2 percent of SES special agents, 10.4 percent of supervisors, and
7.5 percent of nonsupervisory special agents, while Hispanics were 22.4
percent of SES special agents, 10 percent of supervisors, and 8.2
percent of nonsupervisory special agents. For women, the situation was
similar in that women made up 10.2 percent of SES special agents, which
was higher than their representation in the nonsupervisory and
supervisory ranks. However, their representation in the nonsupervisory
ranks (8.8 percent) was higher than their representation among
supervisors (6.6 percent). Table 3 shows the distribution of DEA
special agents in nonsupervisory, supervisory, and SES positions by
equal employment opportunity (EEO) group in September 2002.
Table 3: Distribution of DEA Special Agents in Nonsupervisory,
Supervisory, and SES Positions by EEO Group, September 2002:
Positions: SES:
Positions: Number; Total: 49; Asian/Pacific Islander: 0;
African American: 6; Hispanic: 11; Native American: 1;
Total minorities: 18; White: 31; Women: 5.
Positions: Percentage; Total: 100%; Asian/Pacific Islander:
0.0%; African American: 12.2%; Hispanic: 22.4%; Native
American: 2.0%; Total minorities: 36.7%; White: 63.3%;
Women: 10.2%.
Positions: Supervisory--GS-14 and 15:
Positions: Number; Total: 1,009; Asian/Pacific Islander: 19;
African American: 105; Hispanic: 101; Native American:
9; Total minorities: 234; White: 775; Women: 67.
Positions: Percentage; Total: 100%; Asian/Pacific Islander:
1.9%; African American: 10.4%; Hispanic: 10.0%; Native
American: 0.9%; Total minorities: 23.2%; White: 76.8%;
Women: 6.6%.
Positions: Nonsupervisory--GS-7 to 13:
Positions: Number; Total: 3,423; Asian/Pacific Islander: 78;
African American: 256; Hispanic: 282; Native American:
13; Total minorities: 629; White: 2794; Women: 301.
Positions: Percentage; Total: 100%; Asian/Pacific Islander:
2.3%; African American: 7.5%; Hispanic: 8.2%; Native
American: 0.4%; Total minorities: 18.4%; White: 81.6%;
Women: 8.8%.
Source: GAO analysis of DEA data.
Note: Racial and ethnic categories include men and women; the women
category includes women of all races and ethnicities.
[End of table]
The implication of the inverted pyramid is that DEA could face problems
in enhancing, or even maintaining, diversity in the agency's upper
ranks in the near future as supervisory and SES special agents retire
or otherwise leave DEA. The extent of future attrition in DEA's upper
ranks (and at all levels) is unclear because DEA has not performed a
sufficient workforce analysis. However, if governmentwide estimates are
any indication, DEA could be facing high levels of attrition. According
to our estimates, 27 percent of federal criminal investigators on board
in fiscal year 1998 were expected to retire from fiscal year 1999
through fiscal year 2006.[Footnote 15]
Our work in the human capital area, as discussed in A Model of
Strategic Human Capital Management, found that high-performing
organizations identify their current and future human capital needs and
then create:
strategies for filling these needs.[Footnote 16] In May 2001, the
Office of Management and Budget instructed each federal agency to
provide information on the demographics of its workforce, including
age, grade, retirement eligibility, and expected retirements over the
next 5 years, and attrition, including trends in recent retirements
over the past 5 years.[Footnote 17] Such an analysis could guide the
development of DEA's recruiting and hiring plans and strategies for a
diverse special agent workforce. However, DEA's workforce analysis is
limited to examining attrition data for the previous 24 months to
estimate the coming year's hiring needs. The agency has not developed
estimates on the number of its special agents who are or will become
eligible for retirement or reach mandatory retirement age[Footnote 18]
over the next 5 years or longer and how this could affect the diversity
of the special agent workforce at the supervisory and SES levels and
future recruiting needs. DEA has faced challenges in meeting its
special agent workforce needs. As we will discuss later in this report,
in addition to the high percentage of applicants failing to meet DEA's
hiring standards during the 1997-2002 time frame covered by our review,
a large number of applicants dropped out of the hiring process. DEA
officials said that many of them dropped out because of the lengthy
hiring process, which, the officials said, was averaging about 2 years.
As a result, DEA was left with a relatively small pool of candidates
meeting its hiring standards from which the agency could hire. In fact,
virtually everyone who made it through all the steps in the hiring
process was offered employment. DEA officials said that it would be
preferable to have a larger pool of suitable candidates from which the
agency could select. Because the agency is concerned about having lost
quality candidates that could have enhanced the agency's skills base
and diversity due to the long hiring process and not having a larger
pool of suitable candidates from which to choose, DEA implemented
hiring process changes in December 2002 in an attempt to reduce the
time to hire a special agent. In February 2003, the coordinator of the
hiring project said it was too early to tell the extent to which time
efficiencies were being realized.
A Higher Proportion of Minority Applicants Did Not Meet Hiring
Requirements:
DEA's multistep recruitment and hiring process is intended to assess
whether an applicant demonstrates the competencies, physical and
psychological fitness, and personal integrity and character required of
a DEA special agent. Following an initial qualifications review for
basic requirements like education and citizenship, an applicant must
pass a written assessment, interview, medical examination, and physical
task test. An applicant is also subject to psychological testing, a
polygraph examination, and a background examination, which are used to
make a suitability determination.[Footnote 19] Using the 80 percent
rule, we found that a higher proportion of minorities, particularly
African Americans and Hispanics, did not meet the requirements to
become a special agent in all the steps in DEA's hiring process except
for the interview and medical examination steps. Overall, minority
special agent applicants were selected at lower rates, compared with
white applicants. The Uniform Guidelines require an employer to study
the job-relatedness of selection procedures when there are substantial
differences in the selection rate for any race, ethnic, or gender
group. DEA's hiring procedures appear job related and consistent with
the Uniform Guidelines on Employee Selection Procedures in that they
are based on criteria in regulations, professional standards, or
standards established by subject matter experts. However, the agency
had not studied the effects of these procedures on minorities and women
and whether the procedures could be modified to lessen the differences
without compromising the high standards necessary to perform the job
successfully.
Qualifications Review:
As the first step in the special agent hiring process, DEA reviews and
rates applications[Footnote 20] to determine whether an applicant meets
minimum requirements for the special agent position--a bachelor's
degree and specialized skills or substantive experience, especially in
law enforcement.[Footnote 21] DEA officials said that the experience
requirement was a barrier to recruiting minority and women college
graduates with diversified skills.[Footnote 22] As a result, in May
2000, DEA changed its policy so that applicants with bachelor's degrees
in special skills areas--economics, accounting, computer science/
information systems, certain foreign languages,[Footnote 23] finance,
mechanical/electrical/telecommunications engineering, or criminal
justice--would meet minimum requirements without having additional
experience.
We reviewed DEA's actions on applications received under the two most
recent vacancy announcements--BA-98-01 and BA-20-00.[Footnote 24] The
proportion of minority applicants increased from 27 percent for BA-98-
01 to 31 percent for BA-20-00. Similarly, the proportion of women
applicants increased, from 12.7 percent under BA-98-01 to 16.4 percent
under BA-20-00. Table 4 shows the demographic distribution of
applicants reviewed and rated under both vacancy announcements. We show
the results separately for BA-98-01 and BA-20-00 because of the revised
qualifications under BA-20-00.
Table 4: Demographic Profile of Applicants under BA-98-01 and BA-20-00,
October 15, 1997, to March 31, 2002:
BA-98-01; Asian/Pacific Islander: Women: 0.4%; Asian/Pacific Islander:
Men: 3.2%; African American: Women: 2.4%; African American:
Men: 10.7%; Hispanic: Women: 1.3%; Hispanic: Men: 8.2%;
Native American: Women: 0.1%; Native American: Men: 0.7%;
White: Women: 8.5%; White: Men: 64.5%; Total: Women:
12.7%; Total: Men: 87.3%.
BA-20-00; Asian/Pacific Islander: Women: 0.6%; Asian/Pacific Islander:
Men: 3.6%; African American: Women: 3.6%; African American:
Men: 11.0%; Hispanic: Women: 2.6%; Hispanic: Men: 8.4%;
Native American: Women: 0.1%; Native American: Men: 0.8%;
White: Women: 9.5%; White: Men: 59.8%; Total: Women:
16.4%; Total: Men: 83.6%.
Source: GAO analysis of DEA data.
[End of table]
The extent to which DEA found that applicants met its minimum
requirements was uneven. Applications from African American women, in
particular, were much less likely to meet DEA's minimum education and
experience requirements, even after BA-20-00 changed the criteria for
awarding credit for special skills. We show the results separately for
BA-98-01 and BA-20-00 in table 5 below because of the revised
qualifications under BA-20-00.
Table 5: Percentage of Applicants Meeting Minimum Requirements under
BA-98-01 and BA-20-00, October 15, 1997, to March 31, 2002:
BA-98-01; Asian/Pacific Islander: Women: 62.5%; Asian/Pacific
Islander: Men: 82.7%; African American: Women: 56.6%; African
American: Men: 73.6%; Hispanic: Women: 79.1%; Hispanic: Men:
86.9%; Native American: Women: 70.0%; Native American: Men:
77.6%; White: Women: 66.9%; White: Men: 75.6%; Total:
Women: 66.1%; Total: Men: 76.7%.
BA-20-00; Asian/Pacific Islander: Women: 75.8%; Asian/Pacific
Islander: Men: 85.0%; African American: Women: 56.0%; African
American: Men: 65.3%; Hispanic: Women: 74.7%; Hispanic: Men:
79.8%; Native American: Women: 75.0%; Native American: Men:
72.1%; White: Women: 72.7%; White: Men: 78.4%; Total:
Women: 69.4%; Total: Men: 77.0%.
Source: GAO analysis of DEA data.
[End of table]
Written Assessment:
Applicants who meet DEA's minimum qualifications requirements must then
pass a written assessment of their ability to (1) observe and recall
details, (2) organize the details in a writing sample, and (3) write in
a grammatically correct manner. The assessment, which consists of
showing applicants a videotape of a simulated "drug bust" and asking
them to write a narrative describing what was observed, was developed
by subject matter experts and tested to help ensure job-relatedness.
The written assessment is administered, and applicants' narratives are
first reviewed and rated, in a field division. Later, headquarters
staff review the narratives, in order to help assure DEA-wide
consistency with established rating standards.
Because of concerns about low passing rates of African American and
Hispanic applicants, based on the recommendation of an advisory panel
of subject matter experts, DEA changed scoring criteria under BA-20-00
by reducing the number of details from the videotape that applicants
were expected to recall and identify. At the same time, however,
responding to senior special agents' concerns that newer special agents
lacked the writing skills necessary for preparing investigation reports
and other documents, DEA required that applicants pass all three parts
of the written assessment, not two, as had been the policy under BA-98-
01. These changes resulted in lower passing rates for all applicant
groups. However, the passing rates for African American men, Hispanic
men, and Hispanic women under BA-20-00 were substantially lower
compared with white women, who had the highest passing rate. In table 6
below, we show the passing rates separately for BA-98-01 and BA-20-00
because of the changes to the written assessment under BA-20-00.
Table 6: Percentage of Applicants Passing Written Assessment under BA-
98-01 and BA-20-00, October 15, 1997, to March 31, 2002:
BA-98-01; Asian/Pacific Islander: Women: [A]; Asian/Pacific Islander:
Men: 89.0%; African American: Women: 93.5%; African American:
Men: 84.6%; Hispanic: Women: 87.5%; Hispanic: Men: 80.3%;
Native American: Women: [A]; Native American: Men: [A];
White: Women: 94.5%; White: Men: 91.9%; Total: Women:
93.7%; Total: Men: 89.5%.
BA-20-00; Asian/Pacific Islander: Women: [A]; Asian/Pacific Islander:
Men: 76.4%; African American: Women: 78.9%; African American:
Men: 71.3%; Hispanic: Women: 64.5%; Hispanic: Men: 63.4%;
Native American: Women: [A]; Native American: Men: [A];
White: Women: 91.8%; White: Men: 82.9%; Total: Women:
84.2%; Total: Men: 79.2%.
Source: GAO analysis of DEA data.
[A] Small number of applicants precluded meaningful application of the
80 percent rule.
[End of table]
DEA officials had not studied the effects of the changes to the written
assessment and were unaware of the lower pass rates. However, they said
the lower pass rates might be an unintended result of requiring
applicants to pass all three parts.
Interview:
A panel of three special agents at a field division office interviews
applicants who pass the written assessment. The interview follows a
structured format of 21 questions to elicit responses to evaluate an
applicant's abilities in (1) structuring work activities, (2)
demonstrating interpersonal skills, (3) tolerating stress, (4)
evaluating information, and (5) communicating orally. Special agents
and Office of Personnel staff involved in recruiting developed the
interview questions and pilot tested them to help assure their job-
relatedness.[Footnote 25] The interview panel rates applicants in
accordance with established standards and the Special Agent Recruitment
Unit staff in headquarters later reviews ratings to check that
panelists adequately documented their assessment and adhered to the
rating standards.
As table 7 shows, interview-passing rates showed relatively little
variation, with about 90 percent of all applicants passing.
Table 7: Applicant Interview Passing Rates under BA-98-01 and BA-20-00,
October 15, 1997, to March 31, 2002:
BA-98-01; Asian/Pacific Islander: Men: 87.7%; African
American: Women: [A]; African American: Men: 92.5%; Hispanic:
Women: [A]; Hispanic: Men: 89.9%; Native American: Women: [A];
Native American: Men: [A]; White: Women: 90.8%; White: Men:
91.6%; Total: Women: 90.6%; Total: Men: 91.3%.
BA-20-00; Asian/Pacific Islander: Men: 91.4%; African
American: Women: 85.7%; African American: Men: 89.0%;
Hispanic: Women: [A]; Hispanic: Men: 82.6%; Native American:
Women: [A]; Native American: Men: [A]; White: Women: 90.1%;
White: Men: 90.1%; Total: Women: 88.9%; Total: Men: 89.3%.
Source: GAO analysis of DEA data.
[A] Small number of applicants precluded meaningful application of the
80 percent rule.
[End of table]
Medical Examination:
Applicants who pass the written assessment and interview are scheduled
for a medical examination and, if they pass, are scheduled for the
physical task test. According to DEA's Chief Medical Officer, the
medical examination follows standards developed by the Federal Law
Enforcement Medical Program Division of the Public Health Service,
based on a 1999 survey of the physical demands of a special agent's
job. Prior to 1999, DEA followed OPM-prescribed medical standards.
About 95 percent of applicants passed the medical exam and there was
little difference in the pass rates among the applicant groups, as
table 8 shows.
Table 8: Applicant Medical Examination Passing Rates under BA-98-01 and
BA-20-00, October 15, 1997, to March 31, 2002:
BA-98-01; Asian/Pacific Islander: Women: [A]; Asian/Pacific Islander:
Men: 92.2%; African American: Women: [A]; African American:
Men: 96.0%; Hispanic: Women: [A]; Hispanic: Men: 97.0%;
Native American: Women: [A]; Native American: Men: [A];
White: Women: 96.1%; White: Men: 93.6%; Total: Women:
96.1%; Total: Men: 94.2%.
BA-20-00; Asian/Pacific Islander: Women: [A]; Asian/Pacific Islander:
Men: 97.8%; African American: Women: 96.8%; African American:
Men: 98.0%; Hispanic: Women: [A]; Hispanic: Men: 96.4%;
Native American: Women: [A]; Native American: Men: [A];
White: Women: 99.0%; White: Men: 96.4%; Total: Women:
98.1%; Total: Men: 96.5%.
Source: GAO analysis of DEA data.
[A] Small number of applicants precluded meaningful application of the
80 percent rule.
[End of table]
Physical Task Test:
The physical task test is the next step for applicants who have passed
the interview and medical examination. This test, intended to measure
an applicant's ability to participate in physical activity during Basic
Agent Training, consists of six tasks--pull-ups, sit-ups, push-ups,
shuttle run,[Footnote 26] 2-mile run, and, until March 2003, the
handgun trigger pull.[Footnote 27] (See app. II for physical task test
minimum requirements.) According to the Chief of DEA's Health Services
Unit and the unit's Health Fitness Specialist, the physical task test
format (except for the trigger pull test) is based on standards
developed by the Cooper Institute,[Footnote 28] which reports that the
fitness tests it recommends for law enforcement have been validated
through scientific research to be job related. With regard to the
handgun trigger pull, a DEA official formerly with DEA's Firearms
Training Unit said that the unit developed the trigger pull standard
based on tests of Basic Agent Training students.
Overall, men had a higher passing rate on the physical task test than
women.[Footnote 29] African American applicants passed the physical
task test at rates lower than other groups. In fact, African American
applicants had a significantly lower passing rate under BA-20-00, as
table 9 shows.[Footnote 30]
Table 9: Percentage of Applicants Passing the Physical Task Test under
BA-98-01 and BA-20-00, October 15, 1997, to March 31, 2002:
BA-98-01; Asian/Pacific Islander: 73.9%; African American: 66.9%;
Hispanic: 77.7%; Native American: [A]; White: 81.9%; Women: 73.2%; Men:
79.8%.
BA-20-00; Asian/Pacific Islander: 78.3%; African American: 64.6%;
Hispanic: 70.9%; Native American: [A]; White: 81.2%; Women: 64.2%; Men:
80.5%.
Source: GAO analysis of DEA data.
[A] Small number of applicants precluded meaningful application of the
80 percent rule.
[End of table]
DEA officials had not studied physical task test trends and did not
know which test tasks accounted for lower pass rates. The Chief of
DEA's Health Services Unit and the unit's Health Fitness Specialist
said that they would examine test results for the physical task test
components as they look into updating the physical task test to be
consistent with contemporary standards.
Suitability:
Applicants passing the physical task test are scheduled for polygraph
and psychological tests and a background investigation to assess their
character and conduct. DEA special agents trained as polygraphists
administer the polygraph test in accordance with standardized
techniques and procedures for conducting polygraph examinations
established by the Department of Defense Polygraph Institute.[Footnote
31] For quality assurance, senior polygraphists in DEA headquarters
review test results, including the audiotape made during each polygraph
session. For the psychological assessment, a licensed psychologist
under contract with DEA reviews two validated written psychological
tests[Footnote 32] and DEA's Life Experiences Inventory completed by
the applicant, interviews the applicant, and prepares an overall
assessment, which a DEA psychologist reviews. DEA contracts with OPM to
do full-field background investigations on special agent applicants in
accordance with federal regulations.[Footnote 33] The investigation
develops information through interviews with coworkers, employers,
friends, educators, neighbors, and other individuals; a personal
interview with the applicant; and records checks of investigative files
and other records held by federal agencies, and state and local law
enforcement and court records. In addition, an applicant is subject to
a financial review, including a credit bureau check.
The results of the polygraph and psychological tests and the background
investigation are considered together for a suitability determination.
Suitability determinations are made in accordance with federal
regulations[Footnote 34] by the approving official in the Office of
Personnel or, where there is a question about an applicant's
suitability,[Footnote 35] by a three-person panel called the "1811-
hiring panel."[Footnote 36] DEA officials said that the panel approach
helps to assure consistency in applying criteria in cases in which
there is some question about an applicant's suitability. To come to a
determination about an applicant's suitability, the three panel members
must be in agreement. If the approving official or the panel approves
an applicant, he or she is offered employment.
Our analysis of suitability determinations showed that, overall, DEA
found 67 percent of applicants, for whom a suitability determination
was made, suitable to be special agents, with women found suitable at
higher rates than men. However, the approval rate for African
Americans--55.2 percent--was substantially lower. (See table
10.)[Footnote 37]
Table 10: Percentage of Applicants Found Suitable under BA-98-01 and
BA-20-00, October 15, 1997, to March 31, 2002:
Asian/Pacific Islander: 73.9%; African American: 55.2%; Hispanic:
66.4%; Native American: [A]; White: 68.6%; Women: 74.8%; Men: 66.2%;
Total: 67.0%.
Source: GAO analysis of DEA data.
[A] Small number of applicants precluded meaningful application of the
80 percent rule.
[End of table]
The approving official and current and former 1811 panel members said
that they had not examined the results of their decisions and could not
explain why African Americans fared worse than other applicants or
whether specific disqualifying factors predominate among one group.
They also said that, generally, they were not aware of an applicant's
race when making their determinations. Since the panel was established
in 1997, at least one and sometimes two of the three panel members have
been minorities.
Because the 1811 hiring panel makes about 80 percent of the suitability
determinations, we developed information about the panel's decisions.
Our analysis of the panel's data found that the panel approved about 49
percent of applicants it reviewed, while finding about 36 percent of
African Americans suitable. (See table 11.):
Table 11: Percentage of Applicants Found Suitable by the 1811 Hiring
Panel, September 29, 2000, to May 7, 2002:
Asian/Pacific Islander: 50.0%; African American: 36.2%; Hispanic:
55.3%; Native American: [A]; White: 50.9%; Women: 57.8%; Men: 48.1%;
Total: 49.1%.
Source: GAO analysis of DEA data.
[A] Small number of applicants precluded meaningful application of the
80 percent rule.
[End of table]
Data showed that most (82.7 percent) of the applicants whose
suitability was adjudicated by the panel presented multiple issues for
adjudication. The most frequently identified issues related to an
applicant's psychological assessment (60.6 percent of referred files),
polygraph examination (36.4 percent), driving record (27 percent), not
being recommended by a SAC (26.5 percent), admissions such as drug use
on the Life Experiences Inventory (22.4 percent), and credit issues (17
percent). Among African American applicants, the most frequently
identified reasons related to the psychological assessment (69.6
percent), not being recommended by a SAC (34.8 percent), driving record
(30.4 percent), credit issues (21.7 percent), and admissions on the
Life Experiences Inventory (17.4 percent). The panel's database did not
show the basis for its decisions.
Final Hiring Results:
As of March 31, 2002, from the 10,748 applications found to meet its
minimum requirements under announcements BA-98-01 and BA-20-00, DEA
hired 793 applicants, while rejecting 3,038 applicants who did not pass
the written assessment, interview, medical or physical task test, or
were found unsuitable. The remaining 6,917 applicants had opted out or
were still in process. Overall, we found that about 20 percent of
applicants on whom DEA made a final eligibility determination met the
special agent hiring standards and were selected for training. However,
we found that minorities met DEA's hiring standards at lower rates than
white applicants, with African American and Hispanic applicants meeting
the standards and being selected at substantially lower rates. (See
table 12.):
Table 12: Overall Selection Rates for Applicants for Whom DEA Made
Hiring Eligibility Determinations under BA-98-01 and BA-20-00, by EEO
Group, October 15, 1997, to March 31, 2002:
Asian/Pacific Islander: 18.7%; African American: 13.7%; Hispanic:
15.8%; Native American: [A]; White: 22.9%; Women: 20.0%; Men:20.3%;
Total: 20.3%.
Source: GAO analysis of DEA data.
[A] Small number of applicants precluded meaningful application of the
80 percent rule.
[End of table]
DEA's hiring decisions were somewhat less diverse, compared with the
pool of applicants that met DEA's minimum education, skills, and
experience requirements. As table 13 shows, African Americans,
Hispanics, and women represented a smaller proportion of the special
agents hired under BA-98-01 and BA-20-00, compared with applicants who
initially met minimum requirements, while the proportion of whites
increased.
Table 13: Demographic Profile of Applicants Who Met Minimum
Requirements and Applicants Hired under BA-98-01 and BA-20-00, October
15, 1997, to March 31, 2002:
Meeting minimum requirements:
Number; Asian/Pacific Islander: Women: 45;
Asian/Pacific Islander: Men: 405;
African American: Women: 232; African American: Men: 1,080; Hispanic:
Women: 200; Hispanic: Men: 992;
Native American: Women: 13; Native
American: Men: 76; White: Women: 876;
White: Men: 6,829; Total: Women:
1,366; Total: Men: 9,382.
Percent; Asian/Pacific Islander: Women:
0.4%; Asian/Pacific Islander: Men: 3.8%;
African American: Women: 2.2%; African American: Men: 10.0%; Hispanic:
Women: 1.9%; Hispanic: Men: 9.2%;
Native American: Women: 0.1%; Native
American: Men: 0.7%; White: Women:
8.2%; White: Men: 63.5%; Total: Women:
12.7%; Total: Men: 87.3%.
Hired:
Number; Asian/Pacific Islander: Women: 3;
Asian/Pacific Islander: Men: 31; African American: Women: 7; African American: Men:
72; Hispanic: Women: 12; Hispanic: Men:
71; Native American: Women:
2; Native American: Men: 1; White: Women:
62; White: Men: 532; Total: Women:
86; Total: Men: 707.
Percent; Asian/Pacific Islander: Women:
0.4%; Asian/Pacific Islander: Men: 3.9%;
African American: Women: 0.9%; African American: Men: 9.1%; Hispanic:
Women: 1.5%; Hispanic: Men: 9.0%;
Native American: Women: 0.3%; Native
American: Men: 0.1%; White: Women:
7.8%; White: Men: 67.1%; Total: Women:
10.8%; Total: Men: 89.2%.
Source: GAO analysis of DEA data.
[End of table]
DEA offers employment to virtually all applicants who make it all the
way through its hiring process. Because the agency is concerned about
having lost quality candidates that could have enhanced the agency's
skills base and diversity due to the long hiring process (which had
been averaging about 2 years) and not having a larger pool of suitable
candidates from which to choose, DEA made reforms to its recruiting and
hiring process that had been implemented agencywide by December 2002.
The reforms include giving the field more responsibility for managing
the hiring process and avoiding time-consuming back-and-forth actions
between the field and headquarters. For example, field recruiters are
to conduct criminal history and credit records checks to identify
unqualified applicants before, rather than after, an application
package is forwarded to headquarters, in order to reduce the number of
application packages reviewed. These preliminary records checks will
also help eliminate the need for costly background investigations when
an applicant is identified as unqualified, according to DEA. In
addition, background investigations are to be initiated earlier in the
process and by field offices, which also are to review the
investigation results, perform necessary follow-up, and make
preliminary suitability recommendations. Previously, background
investigations had been managed by headquarters, which referred follow-
up questions to the field. In addition, suitability determinations will
be made before security clearance reviews are conducted. This will help
reduce the security clearance backlog, which had been a major
contributor to delays in the hiring process, and reduce the need to
update stale applicant information when suitability determinations are
made.
No Statistically Significant Differences in Promotion Rates:
DEA's process for promoting special agents to GS-14 and GS-15 positions
has been in place since 1992. The first step is the Special Agent
Promotion Program (SAPP), which uses a supervisor's performance rating
and job simulation exercises at an assessment center to measure the
candidate's knowledge and abilities to perform at the next grade level
and determine which applicants for promotion are placed on a best-
qualified list. The SAC or head of an office with a vacancy is asked to
review the qualifications of best-qualified applicants and recommend
his or her top choices to DEA's Career Board, the head of which
ultimately makes promotion decisions. Our analysis showed that although
African American and Hispanic special agents received promotion
recommendations at lower rates than white agents, particularly for
promotions to GS-14, there were no statistically significant
differences in promotion rates among the various race, ethnic, and
gender groups.
Special Agent Promotion Program:
The SAPP establishes which GS-13 and GS-14 special agents can compete
for promotions. The SAPP is an annual process that was developed by an
outside consultant in response to the 1981 Segar decision. The Working
Group reviewed and approved its development. From 1997 to 2001, 1,355
GS-13 and 423 GS-14 special agents participated in the SAPP.[Footnote
38] Of the GS-13s participating in the SAPP, 25.5 percent were
minorities--mostly African American and Hispanic--and 7.4 percent were
women. Among the GS-14s, 28.4 percent were minorities--mostly African
American and Hispanic--and 8.5 percent were women. Table 14 shows the
demographics of the GS-13 and GS-14 special agent SAPP participants for
1997 through 2001.[Footnote 39] In our analysis of promotion-related
results, we combine men and women for each race because of the small
number of minority women.
Table 14: Special Agents Participating in the SAPP, 1997-2001:
GS-13.
Participants; Asian/Pacific: Islander: 24; African American:
152; Hispanic: 161; Native American: 9; White: 999; Total: 1,355;
Women: 100; Men: 1,255.
Percentage of total participants; Asian/Pacific: Islander:
1.8%; African American: 11.2; Hispanic: 11.9; Native
American: 0.7; White: 73.7; Total: 100.0; Women:
7.4; Men: 92.6.
GS-14:
Participants; Asian/Pacific: Islander: 10; African American:
56; Hispanic: 51; Native American: 3; White: 303; Total: 423; Women:
36; Men: 387.
Percentage of total participants; Asian/Pacific: Islander:
2.4%; African American: 13.2; Hispanic: 12.1; Native
American: 0.7; White: 71.6; Total: 100.0; Women:
8.5; Men: 91.5.
Source: SAPP reports for 1997 through 2001.
[End of table]
The SAPP has two components: the performance rating on the competencies
needed at the next higher grade level and testing at an assessment
center in which job simulations are used to measure a special agent's
knowledge and abilities needed at the next level.
In the performance rating, special agents are evaluated on job-related
competencies (see app. III) on a scale from 1 (unacceptable) to 5
(exceptional). An agent's most recent supervisor prepares the rating,
which is reviewed by a SAC or office head to help ensure that
performance standards are uniformly applied. Data for 1997 through 2001
show that average performance rating scale scores for SAPP participants
were nearly uniformly exceptional--almost a perfect 5--for all groups,
with no statistically significant differences in the scores among the
various groups. In this regard, the 2001 SAPP report[Footnote 40] found
that the rating scores did not differentiate between highly effective
and less effective performers and showed little if any correlation to
assessment center tests of similar competencies. Because performance
rating scores for those who participate in the assessment center are
uniformly high and do little to differentiate among candidates, a
candidate's assessment center score is the primary determinant of
promotion competitiveness.
The assessment center replicates a day in the life of a special agent
through exercises simulating the job at the next higher level. DEA
conducts two assessment centers each year, one for GS-13s aspiring to
GS-14 level positions and another for GS-14s aspiring to become GS-15s,
which are administered under a contract DEA awards annually.[Footnote
41] The assessment centers consist of role-play, in-basket,[Footnote
42] and, for GS-14s, oral presentation exercises simulating the job at
the next higher level to measure a candidate's performance in a variety
of competencies. In 2001, GS-13 special agents were evaluated on 12
competencies in assessment center simulations while GS-14 special
agents were evaluated on 9 competencies. (See app. III.) The original
job simulations were developed following a content-oriented validation
strategy consistent with the Uniform Guidelines on Employee Selection
Procedures and the Principles for Validation and Use of Personnel
Selection Procedures.[Footnote 43] This was done by
detailing special agents' job tasks and the knowledge and abilities
required to perform those tasks, establishing linkages between job
tasks and the knowledge and abilities required, and demonstrating
linkages between the required knowledge and abilities and selection
procedures.[Footnote 44] The 2001 SAPP report noted that there is
extensive literature documenting the validity of job simulations for
predicting supervisory and managerial performance and that simulation
measures are viewed as having a potentially high degree of content
validity, thereby reducing the possibility of discrimination.
DEA special agents trained by the contractor serve as assessors. To
minimize the degree of candidate/assessor familiarity and partiality
when assigning candidates to assessors, the assessment centers director
collects familiarity and partiality ratings from assessors to determine
the extent to which assessors know a promotion candidate and how
impartially the assessors believe they could evaluate the candidate.
Another way of fostering fairness is through the representation of
minorities and women among the assessors. Overall, during the 1997-2001
period, the proportion of minority and women assessors for both the GS-
14 and GS-15 assessment centers exceeded the proportion of minorities
and women participating in the GS-14 and GS-15 SAPPs.[Footnote 45] As a
check on how assessors carry out exercises and developed scores, the
assessment centers director reviews videotapes of exercises, evaluates
assessors' notes, and independently scores candidates' performances. In
addition, the director surveys candidates and prepares a report on the
results of each assessment center. The report analyzes overall scores
for each assessment center and scores by competency and exercise,
comparing the scores of African Americans and whites and, to a lesser
extent, Hispanics and whites,[Footnote 46] to identify competencies in
which larger and smaller race/national origin effects were observed and
suggest possible areas for concentrating test improvement, training,
and developmental efforts. In this regard, the contractor made a number
of revisions each year from 1997 through 2001 to the assessment centers
exercises in an attempt to reduce differences.[Footnote 47]
The Working Group plays an integral role in the assessment centers.
Working Group members said that they oversee the development of the
exercises, approve the design of the annual assessment centers, monitor
the proceedings, and review and approve the overall results. As part of
their oversight, they said that they meet with participants to get
their feedback and review videotapes of the role-play exercises to
determine if they were conducted fairly and properly. They described
the assessment centers as first-class operations that meet standards
for fair treatment and valid procedures. They also said that
differences in scores among groups have not been statistically
significant and that differences in scores among the candidates are due
to factors other than the testing procedures. The Working Group members
said that the strengths of the assessment centers are that the
exercises appropriately reflect results of job analysis, the assessors
are well trained, the assessors' ratings and the rating measures are
reliable, and the process is checked for adverse impact using
statistical tests. Overall, they said that the assessment center
process is a valid way of selecting a supervisor because it asks
candidates to perform supervisory tasks. Moreover, OPM has described
the SAPP as a "success story" in its use of leadership competencies in
making supervisory selections.[Footnote 48]
The performance rating and assessment center scores each account for
half in developing an overall SAPP score for each candidate. As table
15 shows, white participants generally had somewhat higher SAPP scores,
although the differences from the other groups were not statistically
significant, according to the Working Group. Men tended to have higher
scores in the GS-14 assessment center, but women tended to have higher
scores in the GS-15 assessment center.
Table 15: Average SAPP Scores, 1997-2001:
Year: GS-14 assessment center:
Year: 1997; Asian/Pacific: Islander: 87.33;
African American: 83.92; Hispanic:
80.57; Native American:
87.50; White: 86.20; Women: 86.18; Men: 85.12.
Year: 1998; Asian/Pacific: Islander: 81.67;
African American: 82.88; Hispanic:
83.74; Native American:
91.00; White: 86.14; Women: 84.11; Men: 85.36.
Year: 1999; Asian/Pacific: Islander: 85.67;
African American: 82.85; Hispanic:
85.51; Native American:
83.00; White: 85.36; Women: 84.44; Men: 85.17.
Year: 2000; Asian/Pacific: Islander: 85.71;
African American: 82.85; Hispanic:
81.83; Native American:
81.00; White: 85.96; Women: 84.13; Men: 85.35.
Year: 2001; Asian/Pacific: Islander: 82.20;
African American: 83.53; Hispanic:
82.75; Native American:
[A]; White: 86.13; Women: 85.06; Men: 85.28.
Year: GS-15 assessment center:
Year: 1997; Asian/Pacific: Islander: [A];
African American: 81.08; Hispanic:
85.32; Native American:
[A]; White: 86.57; Women: 86.88; Men: 85.32.
Year: 1998; Asian/Pacific: Islander: 84.50;
African American: 81.75; Hispanic:
84.80; Native American:
[A]; White: 86.63; Women: 88.00; Men: 84.81.
Year: 1999; Asian/Pacific: Islander: 82.50;
African American: 80.45; Hispanic:
84.50; Native American:
93.00; White: 86.29; Women: 81.75; Men: 85.41.
Year: 2000; Asian/Pacific: Islander: 92.00;
African American: 83.90; Hispanic:
82.75; Native American:
[A]; White: 85.63; Women: 87.50; Men: 84.82.
Year: 2001; Asian/Pacific: Islander: 81.40;
African American: 84.87; Hispanic:
80.09; Native American:
86.00; White: 85.99; Women: 87.20; Men: 85.14.
Source: DEA.
[A] No member of group participated.
[End of table]
The SAPP scores are used to establish score bands that determine which
special agents make the best-qualified list for GS-14 and GS-15
vacancies.[Footnote 49] Under the SAPP, the size of the score band for
GS-14 positions is 10 points, while the score band for GS-15 positions
is 11 points. The actual score band for a particular vacancy is
determined by the applicant with the highest SAPP score. For GS-14
positions, for example, if the highest-scoring applicant has a SAPP
score of 95, the score band for that vacancy is 86 to 95; and
applicants with scores of at least 86 would be placed on the best-
qualified list. Similarly, if the highest-scoring applicant for a GS-15
vacancy has a SAPP score of 95, the score band for that vacancy is 85
to 95, and applicants with scores of at least 85 would be placed on the
best-qualified list.
SAC/Office Head Recommendations:
Once a best-qualified list is assembled for a particular vacancy, it is
sent to the office with the vacancy to obtain the SAC's (or office
head's) recommendations for promotion. The SAC's recommendation is
solicited because DEA believes that he or she is more familiar with the
requirements of the position to be filled and is in a better position
to assess candidates' qualifications from their biographical and other
information. A SAC typically recommends three individuals. The SAC/
office head recommendation process was at the heart of the September
1999 district court decision that found that the process had not been
validated and resulted in African American applicants receiving
recommendations at statistically significant lower rates that whites.
In addition to not having been validated, there was no format in place
at the time of the 1999 decision to assure that SACs evaluated
candidates using knowledge, skills, and abilities relevant to the
vacant job. Following the court decision, which required DEA to either
drop the SAC/office head recommendation process or stop making
promotions to GS-14 and GS-15 special agent positions until the use of
the recommendations could be validated as job related, DEA and the
plaintiffs reached a court-approved agreement allowing SAC/office head
recommendations and promotions under certain terms and conditions until
a permanent, validated process could be implemented. The interim
process, which was implemented in January 2000 and was still in place
as of March 2003, requires that a SAC provide information about why a
candidate is better suited for the position under consideration,
including his or her experience and success in job-related competencies
(see app. III), when making recommendations.
Despite the changes to the process, differences in SAC/office head
recommendation rates for applicants seeking promotion to GS-14 and GS-
15 positions continued. For GS-14 and GS-15 vacancy announcements that
resulted in a promotion during fiscal years 2000 and 2001, we analyzed
the number of times applicants on the best-qualified list received SAC/
office head recommendations, compared with the number of times
applicants appeared on best-qualified lists. (An applicant can apply
for multiple positions and appear on multiple best-qualified lists.) We
found that for promotions to GS-14, African American and Hispanic
special agents received SAC/office head recommendations at
statistically significant lower rates than white special agents. For
GS-15 positions, African American special agents received SAC/office
head recommendations at statistically significant lower rates than
whites. Table 16 shows the frequency of applicants on best-qualified
lists being recommended by SACs, 2000-2001.
Table 16: Frequency of Applicants Appearing on Best-Qualified Lists
Being Recommended by SACs, 2000-01:
Recommended for: GS-14 promotions; Asian/Pacific: Islander: 28.2%;
African American: 6.0%; Hispanic: 6.8%; Native: American: 16.7%; White:
15.2%; Women: 11.7%; Men: 12.9%.
Recommended for: GS-15 promotions; Asian/Pacific: Islander: 33.3%;
African American: 5.5%; Hispanic: 8.2%; Native: American: [A]; White:
10.8%; Women: 12.6%; Men: 9.6%.
Source: GAO analysis of DEA data.
[A] Small numbers of applicants do not allow for statistical analysis.
[End of table]
At the time of our review, DEA, working with members of the Monitoring
Committee and other special agents, had developed a revised
recommendation process. The Working Group approved the revised process
and said that it met the requirements of content validity as described
in the Uniform Guidelines on Employee Selection Procedures. A major
change under this process requires that a panel of three GS-14, GS-15,
or SES special agents at the location with a vacancy review and rank
applicants on a best-qualified list based on job-related competencies
(see app. III) and any special requirements of the position. The SAC
would make his or her promotion recommendations from this list,
providing a comprehensive justification in recommending an individual
not ranked among the top three applicants. As part of its review and
evaluation of the proposed process, DEA's plan for oversight of the
SAC/office head recommendation process included tracking the race of
each person (1) appearing on a best qualified list, (2) recommended by
a SAC, and (3) selected for promotion, and report these results
periodically to the Segar plaintiffs' counsel. However, the plan did
not specifically include tracking results by gender. At the end of our
fieldwork, the plaintiffs and DEA were involved in mediation efforts in
order to reach final agreement on the recommendation process,
particularly with regard to procedures for monitoring the
implementation of the process. Approval by the court is required to
complete settlement on this issue.
Career Board Selections:
Promotion decisions for GS-14 and GS-15 special agent positions are
made following deliberations by DEA's Career Board. The Career Board's
11 voting members, who are DEA senior executives, make promotion
recommendations by majority vote to the Career Board Chair, who
ultimately has responsibility and authority to make the selection
decision.[Footnote 50] DEA makes promotion decisions on a position-by-
position basis when vacancies become available, with a best-qualified
list assembled for each vacancy based on applicants' SAPP scores.
However, minorities and women do not appear on a substantial portion of
best-qualified lists because they do not apply for particular vacancies
or because their SAPP scores are not high enough to place them among
the best qualified.[Footnote 51]
We analyzed the results of 641 promotions to GS-14 positions and 204
promotions to GS-15 during fiscal years 1997 through 2001 and found
that, despite differences in SAC/office head recommendation rates,
there were no statistically significant differences in the rates at
which the Career Board selected minorities and women for promotion. Our
analysis showed only small differences in the rates at which African
American, Hispanic, and white special agents were selected for
promotion to GS-14 and GS-15 positions. The numbers of Asian/Pacific
Islanders and Native Americans eligible for promotion were too small
for statistical analysis. Although women were somewhat less likely than
men to be selected for promotion, this difference was not statistically
significant. Table 17 shows the number of individuals on best qualified
lists from which promotions were made and the number selected for
promotion by EEO group for fiscal years 1997-2001.
:
Table 17: Individuals on at Least One Best-Qualified List from Which
Promotions Were Made and Individuals Selected for Promotion, by EEO
Group, Fiscal Years 1997-2001:
Promotions to GS-14:
Individuals on best-qualified lists; Asian/Pacific Islander:
20; African American: 98;
Hispanic: 95; Native American: 10; White: 740; Women:
73; Men: 890.
Number selected; Asian/Pacific Islander: 14;
African American: 64; Hispanic: 65; Native American: 7; White: 491;
Women: 44; Men: 597.
Percentage selected; Asian/Pacific Islander:
70.0%; African American: 65.3%; Hispanic:
68.4%; Native American:
70.0%; White: 66.4%; Women:
60.3%; Men: 67.1%.
Promotions to GS-15.
Individuals on best-qualified lists; Asian/Pacific Islander:
4; African American: 33;
Hispanic: 41; Native American: 2; White: 241; Women: 25;
Men: 296.
Number selected; Asian/Pacific Islander: 1;
African American: 20; Hispanic: 26; Native American: 1; White: 156;
Women: 14; Men: 190.
Percentage selected; Asian/Pacific Islander:
25.0%; African American: 60.6%; Hispanic:
63.4%; Native American:
50.0%; White: 64.7%; Women:
56.0%; Men: 64.2%.
Source: GAO analysis of DEA data.
[End of table]
DEA's Discipline Process Has Been Found to Be Nondiscriminatory:
DEA's centralized disciplinary system was put in place in 1984 and, in
1988, was found to meet the court's requirements for being effective
and nondiscriminatory.[Footnote 52] The three-tiered system separates
the responsibilities for investigating an allegation, proposing
disposition, and making a final agency decision. Our analysis of
disciplinary data for fiscal years 1997 through 2001 showed that the
proportion of African American, Hispanic, and women special agents
disciplined was substantially higher than their representation in the
DEA special agent workforce. This situation reflects that African
American, Hispanic, and women special agents had a proportionately
higher number of allegations of misconduct lodged against them and that
a higher proportion of these allegations were substantiated by
investigations and resulted in disciplinary action. Nonetheless, the
results of two studies by outside contractors, approved by the Working
Group, found DEA's disciplinary process to be fair and
nondiscriminatory.
DEA's Validated Discipline System:
DEA's Office of Professional Responsibility (OPR) is responsible for
investigating all allegations of integrity violations (illegal or
improper conduct) and the vast majority of allegations of misconduct
involving violations of DEA's Standards of Conduct.[Footnote 53] OPR
investigations are findings of fact and do not contain conclusions or
recommendations.
The Board of Professional Conduct reviews investigation files in order
to propose a disposition for a matter.[Footnote 54] In each
case,[Footnote 55] two board members independently review the
investigation report, the employee's official personnel record, and how
similar cases have been handled, and propose a disposition using the
preponderance of the evidence standard.[Footnote 56] Board members are
also to consider mitigating and aggravating factors known as the
Douglas factors--derived from a Merit Systems Protection Board
(MSPB)[Footnote 57] decision--in determining the appropriateness of a
disciplinary action.[Footnote 58] The board's chairman reviews their
recommendations and the investigative file and issues the board's
proposed disposition. The board can propose that a special agent be
cleared of alleged charges, receive a letter of caution,[Footnote 59]
or be disciplined (receive a letter of reprimand, or be suspended,
demoted, or removed).
The final agency decision is made by one of two deciding officials in
headquarters using the preponderance of the evidence standard, after
independently reviewing the proposed action and the investigation file
and consulting with employee relations specialists and the DEA Chief
Counsel's office. The deciding officials also apply the Douglas factors
and other legal precedents. As part of the final decision process, an
employee is provided the opportunity to review all evidence and make
written and/or oral responses to the disciplinary charges.
Higher Proportion of African American, Hispanic, and Women Special
Agents Disciplined:
Our analysis of disciplinary data for fiscal years 1997 to 2001 showed
that the proportion of African American, Hispanic, and women special
agents disciplined was substantially higher than their representation
in the DEA special agent workforce and that this difference was
statistically significant. During this period, African American special
agents accounted for 16.2 percent of the agents disciplined, while
making up 8.3 percent of the special agent workforce; Hispanics were
15.2 percent of agents disciplined, while making up 8.9 percent of the
special agent workforce; and women were 12.7 percent of special agents
disciplined but 7.8 percent of the special agent workforce. Table 18
shows special agents disciplined, compared with special agent
population, by EEO group for fiscal years 1997-2001.
Table 18: Special Agents Disciplined Compared with Special Agent
Population, by EEO Group, Fiscal Years 1997-2001:
Total disciplined; Asian/Pacific Islander: 9; African American: 66;
Hispanic: 62; Native American: 0; White: 271; Women: 52; Men: 356;
Total: 408.
Percentage of total disciplined; Asian/Pacific Islander: 2.2%;
African American: 16.2%; Hispanic: 15.2%; Native American: 0.0%; White:
66.4%; Women: 12.7%; Men: 87.3%; Total: 100.0%.
Representation in special agent workforce; Asian/Pacific Islander:
2.0%; African American: 8.3%; Hispanic: 8.9%; Native American: 0.6%;
White: 80.3%; Women: 7.8%; Men: 92.2%; Total: 100.0%.
Source: GAO analysis of DEA data.
[End of table]
We identified two factors that help explain why a higher proportion of
African American, Hispanic, and women special agents were disciplined.
One factor is that a proportionately higher number of allegations of
misconduct were lodged against African American, Hispanic, and women,
compared with their representation in the special agent workforce.
These differences, shown in table 19, were statistically significant.
Table 19: Distribution of Cases of Alleged Misconduct Involving Special
Agents, by EEO Group, Compared with Workforce Representation, Fiscal
Years 1997-2001:
Percentage of allegations; Asian/Pacific Islander: 1.5%; African
American: 12.8%; Hispanic: 13.3%; Native American: 0.1%; White: 72.3%;
Women: 10.5%; Men: 89.5%.
Representation in special agent workforce; Asian/Pacific Islander:
2.0%; African American: 8.3%; Hispanic: 8.9%; Native American: 0.6%;
White: 80.3%; Women: 7.8%; Men: 92.2%.
Source: GAO analysis of DEA data.
[End of table]
The second factor that helps explain why a higher proportion of African
American, Hispanic, and women special agents are disciplined is that a
higher proportion of allegations levied against them are found after
investigation to have merit and lead to disciplinary action. These
differences, shown in table 20, were statistically significant.
Table 20: Cases of Alleged Misconduct Involving Special Agents That
Resulted in Disciplinary Action, by EEO Group, Fiscal Years 1997-2001:
Percentage of cases resulting in discipline; Total: 47.0%; Asian/
Pacific Islander: 64.3%[A]; African American: 59.5%; Hispanic: 53.4%;
Native American: [B]; White: 43.2%; Women: 57.1%; Men: 45.8%.
Source: GAO analysis of DEA data.
Note: Does not include cases administratively closed without a final
decision.
[A] Although the percentage of cases involving Asian/Pacific Islanders
resulting in disciplinary action is larger than the figures for African
Americans, Hispanics, and women, this percentage is not statistically
different from the percentage for whites.
[B] Small numbers prevented statistical analysis of allegations and
disciplinary actions.
[End of table]
DEA does not know why nor does any study offer a reason why African
American, Hispanic, and women special agents had proportionately higher
numbers of allegations of misconduct lodged against them or why a
higher proportion of these allegations were substantiated by
investigations and resulted in disciplinary actions.
Concerns with DEA's Disciplinary Data:
In performing our analysis, we found discrepancies between the
disciplinary data maintained by the DEA Chief Counsel's office that
were:
reported to us and data the DEA Office of Equal Opportunity reported to
the Monitoring Committee. We brought these discrepancies to DEA's
attention, and significant time was needed to develop corrected data.
The corrected data showed that data reported by the Chief Counsel's
office were incomplete while data reported by the Office of Equal
Opportunity counted some cases twice. Accurate and reliable data are
important to DEA monitoring its disciplinary process. At the time of
our review, DEA was looking into but had not developed a process to
help ensure accurate and reliable reporting of disciplinary data.
Studies Have Found DEA's Disciplinary Process to Be Fair and
Nondiscriminatory:
Two studies done by outside contractors, which we found to be
methodologically sound, have found DEA's disciplinary process to be
fair and nondiscriminatory. The first study, done under a contract
awarded by the Working Group in order for DEA to comply with the court
order in the Segar case, analyzed 318 disciplinary cases for the period
September 1982 through June 1986 to determine whether disciplinary
action taken was consistent with the offense or offenses committed and
whether special agents were treated alike regardless of race.[Footnote
60] Of the 318 cases, 239 cases (75.2 percent) involved white special
agents, 32 (10.1 percent) involved African Americans, 36 (11.3 percent)
involved Hispanics, and 11 (3.5 percent) involved other racial/ethnic
groups. The percentage of African American and Hispanic special agents
disciplined was higher than their representation in the special agent
workforce. African Americans, who were 10.1 percent of the agents
disciplined, made up about 8.5 percent of the special agent workforce
during the period, and Hispanics, who were 11.3 percent of the agents
disciplined, made up 10.2 percent of the special agent workforce. Women
were 3.2 percent of agents disciplined while making up 7.6 percent of
the special agent workforce.
The study's results, issued in April 1987 and approved by the Working
Group, concluded that, based on statistical analysis, there appeared to
be no discrimination against minorities in general, and African
Americans in particular, with regard to the number of individuals
recommended for discipline, the severity of the proposed punishment, or
the severity of the actual punishment carried out as related to the
severity of the offense. The study also found a strong relationship
between the severity of the charge and the discipline ultimately meted
out. The study found that although African American special agents were
charged on average with more serious offenses than white special
agents, there were no statistically significant differences in the
discipline decisions as a function of the severity of the charges.
Although the study did not identify the cause for African Americans
being charged with more serious offenses, it raised but did not examine
whether, race, type of assignment, or small sample size of the study
could have been factors.
The second study, done at the request of the Monitoring Committee and
Working Group, examined whether there were differences in the
discipline administered to white versus African American special agents
during calendar years 1994-2000.[Footnote 61] Of 365 disciplinary cases
of special agents during this period, 237 (64.9 percent) involved
whites, 58 (15.9 percent) involved African Americans, 58 (15.9 percent)
involved Hispanics, 6 (1.6 percent) involved Asian/Pacific Islanders,
and 3 (0.8 percent) involved Native Americans. There was no race
information in 3 cases. In addition, no breakout by gender was
reported. The study methodology was developed so that the results could
be applied to any protected group, but because the study was done in
the context of the Segar case, only discipline administered to African
American and white special agents was analyzed.
According to the report, issued in August 2001 and approved by the
Working Group, there were no statistically significant differences in
the imposition of discipline between African American and white special
agents for any offense or violation category. The study also concluded
that the data "decisively and unequivocally" showed no differences
between African American and white special agents in terms of the
severity of the punishment administered, which the study said confirmed
the integrity of the discipline process. Although the data reported by
the study showed that the percentage of African American special agents
disciplined (15.9 percent of agents disciplined) was higher than the
group's representation in the workforce (less than 9 percent), the
study did not analyze the relationship between the number of African
Americans disciplined and their representation in the special agent
workforce.[Footnote 62]
The integrity of DEA's discipline process from a legal perspective was
also evident in MSPB decisions. Employees can appeal removals,
demotions, and suspensions of more than 14 days to MSPB and, during,
fiscal years 1997-2001, MSPB decided the cases of 28 DEA special
agents.[Footnote 63] Of the 28 cases, MSPB affirmed DEA's actions in 24
cases (85.7 percent), affirmed some or all of the charges and mitigated
the penalty in 2 cases (7.1 percent), and reversed DEA's actions in 2
cases (7.1 percent). In comparison, governmentwide, MSPB reversed 22
percent of agency decisions in fiscal year 2001. A Justice Department
review of fiscal year 1997 Justice cases before MSPB found that, among
department components, DEA had the highest affirmation rate, which was
attributed to the quality of documentation and evidence supporting
charges. The report said that DEA's centralized disciplinary system
provides for impartiality and consistency in developing defensible
disciplinary actions.
Employee Views on Promotion and Discipline:
As agreed with your office, during our review, we spoke with minority
and women special agents, including members of the Monitoring Committee
as well as members of the Hispanic Advisory and Asian-American Advisory
Committees, to obtain their views on promotion and discipline
issues.[Footnote 64] Our work has found that high-performing
organizations promote a diverse and inclusive workforce and have
workplaces in which perceptions of unfairness are minimized.[Footnote
65] However, comments of many of the minority and female special agents
with whom we spoke indicated that they believed trust and fairness were
lacking with regard to the promotion and discipline processes. For
example, members of these committees said they perceived that their
groups were underrepresented in promotions to GS-14 and GS-15 and that
selection outcomes were frequently based on "who you know." These
special agents said that candidates, especially in field divisions, may
have been disadvantaged because of a lack of personal knowledge of an
agent among the board members. The November 2002 change to increase the
number of SACs serving as rotating members was made to address this
concern. Another concern the minority special agents expressed was
about the board's racial, ethnic, and gender representation. However,
in January 2003, the Career Board included two African Americans, two
Hispanics, one Native American, and six whites; one of the members was
a woman. During the 1997-2002 time frame, the board had a similar
makeup.
One additional concern of many of the minority special agents with whom
we spoke was the perceived unfairness in the discipline process. These
agents said that they believed that minorities were subject to more
scrutiny and, as a result, were disproportionately investigated for
misconduct. A number of the agents also said that they perceived that
there were inconsistencies in punishment meted out, with minorities
receiving harsher punishment. Our work showed that African American,
Hispanic, and women special agents had a proportionately higher number
of allegations of misconduct lodged against them and that a higher
proportion of these allegations were substantiated by investigations
and resulted in disciplinary actions. However, the results of two
studies by outside contractors, approved by an oversight group and
which we found methodologically sound, found DEA's disciplinary process
to be fair and nondiscriminatory.
The perceptions minority and women special agents have with regard to
fairness in promotions and discipline may be driven by an absence of
data and other information. For example, DEA had not shared the racial
analysis of its promotion actions or SAC/office head recommendations
with its special agent workforce, except the Monitoring
Committee.[Footnote 66] Our analysis of promotions to GS-14 and GS-15
special agent positions for fiscal years 1997 through 2001 showed no
statistically significant differences in the promotion rates among the
racial, ethnic, and gender groups. In addition, DEA only shared the
results of the 2001 discipline study, which found no statistically
significant differences in the imposition of discipline between African
American and white special agents, with the Monitoring Committee. On
the other hand, although the study methodology was developed so that
the results could be applied to any protected group, the study was done
in the context of the Segar case and examined only discipline
administered to African American and white special agents. However, it
appears that discipline actions taken against Hispanics were to have
been included in the study, according to a memo from a former DEA
Administrator to the Hispanic Advisory Council. Neither council members
nor DEA officials could explain why this did not occur.
As we discuss in our exposure draft A Model of Strategic Human Capital
Management, our work in the human capital area has shown that leading
organizations promote an inclusive workforce by seeking employee input
and using that input to adjust their human capital approaches.[Footnote
67] DEA has taken, or plans to take, some steps in this regard. One
step was that, as DEA's study of a valid SAC/office head recommendation
process progressed, the agency involved minorities, in addition to
Monitoring Committee representatives that had been involved, and women.
Also, the November 2002 changes to the structure of the Career Board
were based on input from the Monitoring Committee and other special
agents, and, according to the Administrator's memo announcing the
change, were intended to bring transparency and greater participation
to the promotion process. Furthermore, in March 2002, the Administrator
established an ombudsman office[Footnote 68] to address workplace
conflicts, facilitate fair and equitable resolutions to concerns, and
serve as an advisor and information and communications resource. The
ombudsperson said that she had handled a variety of matters, mostly
involving special agents, including issues concerning performance
appraisals and Career Board decisions to reassign agents.
Conclusions:
At some steps of DEA's hiring process, a higher percentage of
minorities do not meet the requirements to become a special agent, with
African American and Hispanic applicants hired at substantially lower
rates compared with white applicants. DEA has not analyzed why some
groups of applicants have lower passing rates and whether alternative
procedures could lessen these differences without compromising the high
standards necessary to perform the job successfully. Furthermore,
because a large number of applicants drop out or do not meet hiring
standards, DEA offers employment to virtually all applicants it finds
suitable, leaving the agency with little choice in whom it hires. DEA
has not performed a workforce analysis that takes into account expected
attrition of the special agent workforce, especially due to
retirements, that could help the agency plan for a sufficiently large
pool of suitable special agent candidates with diverse cultural and
skills backgrounds from which it could selectively hire.
Promotions of special agents to supervisory GS-14 and GS-15 positions
have not shown statistically significant differences among groups.
However, DEA's rigorous promotion process has been subject to
litigation surrounding the SAC/office head recommendation process, the
step in the overall promotion process that had not been validated. DEA
has since developed a revised recommendation process and proposed a
monitoring process that the agency and the plaintiffs are discussing to
reach agreement about and which still must be court approved. However,
the proposed monitoring process does not take gender into account.
The proportion of African American, Hispanic, and women special agents
disciplined for misconduct was substantially higher than their
representation in the DEA special agent workforce. However, two studies
have found DEA's discipline process to be valid and fair, but neither
of the studies addressed differences in the rates at which different
groups were disciplined, and the second study compared only
disciplinary actions involving African American and white special
agents. Reliable data would be necessary to carry out a study covering
all race, ethnic, and gender groups, and our analysis of disciplinary
actions was delayed by the lack of reliable data. Although DEA
eventually developed corrected data, the agency has not developed a
process to maintain accurate and reliable disciplinary data.
Finally, minority and female special agents with whom we spoke
generally perceived that the promotion and discipline processes lacked
fairness. Perceptions of unfairness can be almost as corrosive to the
workplace as actual instances of unfair treatment and can undermine
trust. Because DEA did not widely share analyses of promotion and
disciplinary actions with its special agent workforce, agents were
hindered in formulating informed views about the fairness and equity of
the promotion and discipline processes. This situation would continue
under DEA's proposal for monitoring the promotion process because
reporting of outcomes would be limited to the African American special
agents plaintiff group.
Recommendations for Executive Action:
We recommend that the Administrator of DEA direct that:
* a process be initiated to monitor the results of decisions at the
various steps in the hiring process to identify differences in
selection rates among groups, and where substantial differences are
found, determine why they occur and what, if anything, can be done to
reduce the differences while maintaining the high standards necessary
for the job of special agent;
* a workforce analysis be done, which takes into account retirement
eligibility, expected retirements, and other attrition, to guide the
development of DEA's recruiting and hiring plans and strategies;
* the plans to monitor the results of the SAC/office head
recommendation process by race and ethnicity be expanded to include
monitoring by gender;
* steps be taken to develop, maintain, and ensure the reliability of a
discipline database and that the study of disciplinary actions taken
against African American and white special agents be expanded to
analyze disciplinary actions against all racial, ethnic, and gender
groups of special agents; and:
* appropriate, aggregate statistical data on the outcomes of the
promotion and discipline processes for all racial, ethnic, and gender
groups are available to its special agent workforce to help special
agents formulate informed views about the fairness and equity of the
agency's promotion and discipline processes.
Agency Comments and Our Evaluation:
In commenting on a draft of this report, the Acting Administrator of
DEA agreed with our recommendations and said that DEA was acting to
implement them. (See app. IV for the text of the comments.):
Regarding hiring of special agents, DEA said it will monitor the
results of decisions at the various steps in the hiring process to
identify differences in selection rates. DEA's response said that it
would identify differences among minority groups but did not
specifically mention gender differences. DEA should examine differences
in selection rates among all groups, including gender groups. DEA also
said that it will conduct a study to review each part of the special
agent hiring process. The study will include analysis of processes used
by other law enforcement agencies to identify alternative strategies
that might lessen differences in selection rates.
DEA agreed with our recommendation that a workforce analysis be done to
guide the development of recruiting and hiring plans and strategies.
DEA said that it will analyze its workforce to determine the portion
eligible for, or who anticipates, retirement, and to identify other
attrition concerns for the agency and use the results to guide the
development of its recruiting and hiring plans and strategies.
DEA also agreed with our recommendation to monitor the SAC/office head
recommendation process for all EEO groups, including by gender. DEA
said that, if it is put in place, its monitoring plan will include
evaluating results for all demographics of the workforce, including
race, ethnicity, and gender.
Regarding the reliability of discipline data, DEA said that it agreed
with our recommendation and had begun an effort to consolidate multiple
discipline databases. With regard to our recommendation that DEA expand
the study of disciplinary actions taken against African American and
white special agents to analyze disciplinary actions against all
racial, ethnic, and gender groups of special agents, DEA said that it
will do so.
Finally, DEA concurred with our recommendation to make statistical data
on the outcomes of the promotion and discipline processes for all
racial, gender, and ethnic groups available to its special agent
workforce. DEA said that it will make available aggregate statistical
data concerning promotion selections and types of misconduct found.
Overall, the actions DEA describes, when fully implemented, should meet
our recommendations. DEA also provided technical comments, which we
incorporated in the report where appropriate.
:
As agreed with your office, unless you publicly announce its contents
earlier, we plan no further distribution of this report until 30 days
after its date. We will then send copies of this report to the Attorney
General, the Administrator of DEA, and interested congressional
committees. We will also make copies available to others upon request.
In addition, the report will be available at no charge on GAO's Web
site at http://www.gao.gov. If you or your staff have questions about
this report, please call me at (202) 512-6806 or Thomas Dowdal,
Assistant Director, on (202) 512-6588. Key contributors to this
assignment were Anthony Lofaro, Domingo Nieves, and Gregory Wilmoth.
Signed by:
Sincerely yours,
Victor S. Rezendes
Managing Director, Strategic Issues:
Signed by Victor S. Rezendes:
[End of section]
Appendixes:
Appendix I: Objectives, Scope, and Methodology:
In her letter of May 25, 2001, Congresswoman Eddie Bernice Johnson
expressed concerns about discrimination in the Drug Enforcement
Administration's (DEA) hiring, promotion, and discipline processes.
Based on discussions with her office, we agreed to (1) develop
information on the diversity of DEA's special agent workforce and (2)
examine the processes DEA has put in place to provide for fair and
nondiscriminatory hiring, promotion, and disciplining of special agents
and the results that have been achieved.
DEA Special Agent Workforce Diversity:
With regard to the diversity of DEA's special agent workforce, we
developed information by race, ethnicity, and gender for each pay
grade, using data from the Office of Personnel Management's (OPM)
Central Personnel Data File (CPDF) as of September 1980, 1985, 1990,
1995, and 2000, and data from DEA as of September 2002. We selected
these dates to show changes, if any, that had occurred in DEA's special
agent workforce from around the initial decision of the U.S. District
Court for the District of Columbia in 1981 with regard to a class
action racial discrimination lawsuit brought against DEA by the
agency's African American special agents[Footnote 69] through the end
of fiscal year 2002. To compare the racial, ethnic, and gender
composition of the DEA special agent (criminal investigator job
occupation series 1811) workforce with other criminal investigator
workforces, we used data OPM provided for criminal investigators
governmentwide and the nonfederal law enforcement labor force, a
measure that includes nonfederal law enforcement and security-related
occupations that are considered comparable to the 1811 occupational
series by the OPM, the Equal Employment Opportunity Commission, and the
Department of Labor. In addition, we obtained overall federal workforce
diversity data as of September 2002 from OPM. We determined based on
our past work[Footnote 70] that the CPDF data are sufficiently reliable
for the purpose used in this report.
DEA's Hiring, Promotion, and Discipline Processes:
To determine the DEA processes for hiring, promoting, and disciplining
special agents and the results that have been achieved, we reviewed
relevant DEA policies and procedures and interviewed knowledgeable DEA
officials. In addition, we spoke with employee representatives,
including members of the Monitoring Committee, a court-established
group of African American special agents representing plaintiff class
members; the Hispanic Advisory Council; and the Asian-American Advisory
Counsel. Further, we spoke with the members of the Working Group that
was established to help ensure that the orders of the court are carried
out and that DEA's personnel practices are nondiscriminatory. With
regard to developing information about the job-relatedness of DEA's
hiring, promotion, and discipline processes, we spoke with DEA
officials, Working Group members, and contractors who had studied the
processes and reviewed available studies and other documentation.
In analyzing results, we compared each racial and ethnic group and
compared men of all races/ethnicities with women of all races/
ethnicities. In addition to this level of analysis, where there were a
sufficient number of individuals, we analyzed data for men and women
within each race and ethnic group. In analyzing differences in how
racial, ethnic, and gender groups fared in DEA's hiring process, we
used the 80 percent rule set out in the Uniform Guidelines on Employee
Selection Procedures.[Footnote 71] Under this rule, a selection rate
for any race, ethnic, or gender group that is less than 80 percent of
the selection rate for the group with the highest rate is generally
considered a substantially different rate of selection. In analyzing
promotion and disciplinary actions, we applied standard statistical
tests to determine if there were statistically significant differences
among the racial, ethnic, and gender groups. We used statistical
techniques in these analyses to be consistent with how other studies of
DEA's promotion and discipline process were conducted. Our analyses
generally covered fiscal years 1997-2001, except as noted below, and
were not designed to prove or disprove discrimination. Rather, they
were designed to provide information about race, ethnicity, and gender
differences in DEA's hiring, promotion, and disciplinary actions.
Hiring Results:
We analyzed the results of DEA's screening of special agent applicants
at each step of the hiring process on applications received under two
vacancy announcements--BA-98-01, which was open from October 15, 1997,
through March 7, 2000, and BA-20-00, which opened on May 8, 2000, and
remained open during our review. We selected these two announcements to
facilitate an analysis of (1) the effect of changes to eligibility
criteria and written assessment scoring beginning with BA-20-00 and (2)
final hiring rates. We examined DEA's screening actions on applicants
from October 15, 1997, through March 31, 2002, analyzing the data by
race, ethnicity, and gender. Data we analyzed were provided by DEA from
the agency's Agent Recruiting and Tracking System (ARTS), which tracks
applications received, the status of applicants, decisions on applicant
eligibility at each step of the hiring process, and final hiring
decision. We examined ARTS data and concluded that the data were
reliable for our purposes because the disposition of applications
reconciled with applications processed.
With regard to suitability determinations DEA made on applicants based
on the results of psychological and polygraph examinations and
background investigations, we reviewed two sets of data. First, we
reviewed data recorded in ARTS to provide an overall picture on the
outcomes of suitability determinations. Because about 80 percent of
suitability determinations are made by a three-person panel, we
reviewed data maintained by the panel on its decisions. However,
because the panel's database had only been initiated for decisions on
or after September 29, 2000, we only reviewed panel decisions from
September 29, 2000, through May 7, 2002. To gain an understanding of
materials the panel considers in making its determinations, we reviewed
a nongeneralizable sample of applicant suitability determination case
files.
Promotion Results:
Our analysis of promotions focused on competitive promotions to General
Schedule grade levels 14 and 15 special agent positions. We reviewed
three elements of the promotion process: the Special Agent Promotion
Program (SAPP), which uses performance ratings and job simulation
exercises to measure knowledge and abilities to perform at the next
grade level; promotion recommendations that Special Agents in Charge or
other office heads make to the Career Board, the body that makes final
promotion recommendations and whose chair makes the final selections;
and the final selections. We analyzed data by race, ethnicity, and
gender. With regard to the SAPP, we analyzed data contained in annual
reports on the SAPP for 1997 through 2001. SAPP results and the reports
had been reviewed and approved by the Working Group. For
recommendations and selections, we examined actions related to best-
qualified certificates for vacancies from which promotions were made
for fiscal years 1997 through 2001.[Footnote 72] We obtained data from
DEA on the number and demographic profile of applicants on the best-
qualified lists, the number of them who received recommendations, and
the number selected. Because applicants can appear on multiple best-
qualified lists, we also obtained an unduplicated count of the number
of applicants on the best-qualified lists and the number who received
recommendations. To check the reliability of the data DEA provided to
us, we compared the minutes of Career Board deliberations on promotion
decisions to data reported to the Monitoring Committee.
Discipline Results:
With regard to disciplinary actions, we analyzed data by race,
ethnicity, and gender for cases resolved during fiscal years 1997
through 2001. For these cases, we determined the number and demographic
profile of special agents against whom allegations of misconduct were
made, the disposition of their cases, and the nature of disciplinary
actions taken. However, in performing our analysis, we found
discrepancies between the data maintained by DEA's Chief Counsel's
office that were reported to us and the data the Office of Equal
Opportunity reported to the Monitoring Committee. We brought these
discrepancies to DEA's attention. After some delay, DEA provided us
with corrected data. We performed a limited verification of the
corrected data and found them to be reliable. In addition to our
analysis of disciplinary data, we reviewed the two studies of DEA's
disciplinary process performed by contractors as well as a report
prepared by the Justice Department. In addition, we reviewed the
disposition of appeals by special agents to the Merit Systems
Protection Board.
We performed our work from September 2001 through February 2003 in
accordance with generally accepted government auditing standards.
[End of section]
Appendix II: Physical Task Test Minimum Requirements:
The minimum requirements in each of the six tasks that applicants for
Drug Enforcement Administration (DEA) special agent positions must meet
to pass the physical task test are shown in table 21.
Table 21: DEA Physical Task Test Minimum Performance Requirements:
Task: Trigger pull[A]; Women: 29 pulls of a handgun trigger in 30
seconds with stronger hand; Men: same.
Task: Pull-ups (number)[B]; Women: 10; Men: 2.
Task: Sit-ups (number within 2 minutes); Women: 46; Men: 46.
Task: Push-ups (number); Women: 14; Men: 25.
Task: 120-yard shuttle run; Women: No longer than 29 seconds; Men: No
longer than 26 seconds.
Task: 2-mile run; Women: No longer than 18:45 minutes; Men: No longer
than 16:30 minutes.
Source: DEA.
[A] Eliminated in March 2003.
[B] The pull-up test for women is performed using a horizontal bar
mounted 3 feet from the floor and 2 feet from the wall. A woman begins
the pull-up lying on her back. The pull-up test for men is performed
using a horizontal bar mounted above the floor and out-of-reach of the
subject. A man begins the pull-up hanging from the horizontal bar.
[End of table]
[End of section]
Appendix III: Competencies in Assessing GS-13 and GS-14 Special Agents
for Promotion:
Performance Rating Competencies for GS-13 and GS-14 Special Agents:
In the Special Agent Promotion Program (SAPP) performance rating,
General Schedule (GS) grade 13 special agents are evaluated on seven
competencies and GS-14 special agents are evaluated on eight
competencies, as table 22 shows.
Table 22: Performance Rating Competencies for GS-13 and GS-14 Special
Agents:
Competency: Written communication; Competencies rated: Yes;
Competencies rated: GS-14: No.
Competency: Acting as a model; Competencies rated: GS-13: Yes;
Competencies rated: GS-14: Yes.
Competency: Gathering information and making judgments/decisions;
Competencies rated: GS-13: Yes; Competencies rated: GS-14: Yes.
Competency: Interacting with others; Competencies rated: GS-13: Yes;
Competencies rated: GS-14: Yes.
Competency: Monitoring and guiding; Competencies rated: GS-13: Yes;
Competencies rated: GS-14: Yes.
Competency: Oral communication; Competencies rated: GS-13: Yes;
Competencies rated: GS-14: Yes.
Competency: Planning and coordinating; Competencies rated: GS-13: Yes;
Competencies rated: GS-14: Yes.
Competency: Mentoring, developing, and evaluating others; Competencies
rated: GS-13: Competencies rated: GS-14: Yes.
Competency: Persuading; Competencies rated: GS-13:
Competencies rated: GS-14: Yes.
Source: DEA Promotion Ratings Scales Booklets for GS-13 and GS-14
special agents.
[End of table]
Competencies Measured by Assessment Center Job Simulations:
In 2001, GS-13 special agents were evaluated on 12 competencies in SAPP
assessment center simulations, while GS-14 special agents were
evaluated on 9 competencies, as table 23 shows.[Footnote 73]
Table 23: Competencies Measured by Assessment Center Job Simulations in
2001:
Competency: Ability to communicate in writing; GS-13: Yes; GS-14: Yes.
Competency: Ability to communicate orally; GS-13: Yes; GS-14: Yes.
Competency: Ability to expand case to fullest potential; GS-13: Yes;
GS-14: No.
Competency: Ability to evaluate and develop subordinates; GS-13: Yes;
GS-14: Yes.
Competency: Ability to integrate information and draw conclusions; GS-
13: Yes; GS-14: Yes.
Competency: Ability to delegate; GS-13: Yes; GS-14: Yes.
Competency: Ability to recognize and establish evidence; GS-13: Yes;
GS-14: No.
Competency: Ability to effectively utilize cooperating sources; GS-13:
Yes; GS-14: No.
Competency: Ability to organize, plan, and prioritize activities; GS-
13: Yes; GS-14: Yes.
Competency: Ability to coordinate and monitor work; GS-13: Yes; GS-14:
[Empty].
Competency: Ability to plan and coordinate enforcement operations; GS-
13: GS-14: Yes.
Competency: Ability to relate effectively with others; GS-13: Yes;
GS-14: Yes.
Competency: Knowledge of DEA manuals, policies, and procedures; GS-13:
Yes; GS-14: Yes.
Source: 2001 SAPP report.
[End of table]
Interim Special Agent in Charge/Office Head Recommendation Process:
The interim recommendation process, which was implemented in January
2000 and was still in place as of December 2002, requires that a
special agent in charge (SAC) or office head, when making promotion
recommendations to the Career Board, provide information about the
personal characteristics, traits, or attributes that make a candidate
better suited to the position under consideration and how a candidate's
past or present experiences or demonstrated success makes him or her a
top candidate. The latter requirement covers seven specific areas:
* directing enforcement and/or investigative-related programs;
* managing, motivating, and mentoring subordinates;
* working in a team environment;
* working individually;
* managing agency resources;
* building and maintaining coalitions; and:
* acquiring or possessing technical knowledge, education, and special
skills, or training peculiar to or required by the position.
Proposed SAC/Office Head Recommendation Process:
Among the changes under a proposed recommendation process are that
applicants for promotions would be asked to provide a summary of their
major accomplishments and how they are best qualified for the position
applied for, including technical knowledge, education, special skills,
or training specified in the vacancy announcement, and provide a
narrative describing their achievements in the following competencies:
* directing enforcement and/or investigative-related programs or other
appropriate managerial experience in a law enforcement setting;
* managing, motivating, mentoring, and/or training personnel;
* working in a team environment of mutual cooperation and assistance;
* building and maintaining coalitions with other personnel and entities
internal and external to the agency; and:
* for applicants for GS-15 positions, managing agency resources.
[End of section]
Appendix IV: Comments from the Drug Enforcement Administration:
U.S. Department of Justice Drug Enforcement Administration:
MAY 02 2003:
Managing Director Victor S. Rezendes Strategic Issues Division:
General Accounting Office 441 G Street, N.W. Washington, D.C. 20548:
Dear Mr. Rezendes:
This is to provide you with the Drug Enforcement Administration's (DEA)
formal response to the General Accounting Office's (GAO) recently
completed draft report, "EQUAL EMPLOYMENT OPPORTUNITY Hiring,
Promotion, and Discipline Processes at the DEA" (GAO-03-413). DEA has
reviewed the draft report and submits the following technical comments
addressing corrections for accuracy on the facts and findings of this
report. Technical comments are followed by DEA's response to the
recommendations of the GAO.
The draft GAO report addressed three major personnel systems at the DEA
concerning that part of its workforce consisting of Special Agents in
the General Schedule (GS) 1811 series. The three major personnel
systems are: (1) the hiring procedures, (2) promotion process, and (3)
discipline process. Concerning overall diversity, the draft GAO report
concluded that,
The diversity of DEA's [S]pecial [A]gent ([C]riminal [I]nvestigator)
workforce was below overall government workforce percentages but
generally comparable with the governmentwide population of criminal
investigators, except for women.
GAO-03-413, page 2. According to Table 1: "Demographic Distribution of
the Federal Workforce and Criminal Investigators (Special Agents) in
DEA, Governmentwide, and the Nonfederal Workforce a/", DEA notes that
the Agency was "generally comparable" with the Governmentwide
population of criminal investigators for Asian/Pacific Islander and
Hispanic, was not as high as the average for Native American and women,
but was higher than the Governmentwide percentage for African-
Americans. DEA also notes the average percentage
of White Special Agents reported in Table 1 was precisely the same for
the Governmentwide population and the non-Federal workforce.
Hiring Procedures:
Concerning the DEA hiring procedures for Special Agents, the draft GAO
report contained conclusions that, for fiscal years 1997 through 2001,
the "proportion of white applicants hired was substantially higher"
than African-American or Hispanic applicants. For this analysis, the
draft GAO report relied upon the "80-percent rule" pursuant to the
Uniform Guidelines on Employee Selection Procedures.':
The draft GAO report did find that the "DEA's hiring procedures are
based on criteria in federal regulations, professional standards, or
standards established by subject matter experts." DEA concurs with this
assessment. The draft report also stated that "the [A]gency had not
studied why its procedures resulted in different selection rates and
whether they could be modified to reduce differences while maintaining
high standards." See GAO-03-413, page 2. As a result of DEA initiative,
studies were begun before the draft GAO report to examine the hiring
process for reasons of increasing efficiency, recruitment, and the
quality of applicants.
Further, there also appear to be fundamental misconceptions in the
draft report concerning the manner in which applicants are extended
offers of employment. Applicants are extended conditional offers of
employment upon meeting minimum eligibility criteria. Applicants are
presented final offers of employment after they have succeeded in
passing all phases of the hiring process. The draft report, however,
critically examined the DEA process of extending final offers of
employment to applicants, by stating,
DEA officials said that many [applicants] dropped out because of the
lengthy hiring process, which, they said, was averaging about two
years. As a result, DEA was left with a limited pool of candidates
meeting its hiring standards for which the agency could hire. Virtually
everyone who made it through all the steps in the hiring process was
offered employment.
GAO-03-413, page 17. This critical assessment is repeated at the end of
the draft report,
Furthermore, because a large number of applicants drop out or do not
meet hiring standards, DEA offers employment to virtually all
applicants it finds suitable, leaving the agency with very little
choice in whom it hires.
GAO-03-413, page 51.
The Agency's Special Agent hiring process is designed to obtain the
best qualified candidates for the position of DEA Special Agent.
Throughout each step of the process, DEA assesses potential applicants
for compatibility with the position description. Those applicants who
successfully complete all phases of the hiring process are considered
to be among the most competitive applicants and are offered employment
based upon that reasoned justification. The applicants who successfully
clear all of the processes are deemed to be highly valued and the top
candidates. As such, language such as "limited pool of candidates" and
"little choice in whom it hires" are inconsistent with an understanding
of the structure of the process.
Misconceptions concerning the hiring process were carried over equally
into the draft report's presentation of the part of the hiring process
that addresses suitability and security examinations of potential
applicants. The draft report stated,
In addition, background investigations are to be initiated earlier in
the process and by field offices, which also are to review the
investigation results, perform necessary follow up, and make a
preliminary suitability recommendation.
GAO-03-413, page 29. This statement is not accurate. The hiring process
contains two processes to assess requirements for the position of DEA
Special Agent - preliminary records checks followed by a background
investigation. The revised hiring process allows for field offices to
conduct criminal history and credit records checks. The preliminary
records checks eliminate the need for initiating costly background
investigations. Background investigations are now initiated by field
offices through the United States Office of Personnel Management (OPM),
and would not be initiated until applicants complete a medical
examination and Physical Task Test (PTT). As such, it cannot be fairly
stated that background investigations are conducted early in the hiring
process.
Promotion System:
The draft GAO report reviewed the DEA promotion system for Special
Agents seeking promotion to the GS 14 and GS 15 levels under standard
statistical techniques.' This current system at DEA consists of (1) the
Special Agent Promotion Program (SAPP); (2) the interim Special Agent
in Charge / Office Head recommendation process; and (3) Career Board
recommendation to the selecting official (Deputy Administrator for
DEA).
As the GAO notes in the draft report, the development of the DEA
promotion system resulted from a history of civil litigation in the
area of equal employment opportunity, and as a result, the Agency
closely monitors promotion rates to ensure adherence to accepted
selection procedures. In reviewing the draft GAO report, however, DEA
is concerned with the description
of the civil litigation history in the opening section entitled
"Litigation History." The draft GAO report stated,
In its [1999] ruling [in SeQar, et al. v. Reno, et al. 41the court did
not address whether there was adverse impact in promotions.
GAO-03-413, page 11. The Court, however, did address whether there was
adverse impact in promotions in the 1999 SeQar decision. In that
decision, the United States District Court for the District of Columbia
examined each stage of the promotion process as members of the class
action in Segar (hereinafter "Plaintiff Class Members") presented their
challenges to the Court for adjudication. The Court found that the
selections which had been recommended by the Career Board resulted in
no "bottom-line" "disparate impact." DEA considers this to be a
significant finding.
Because the Agency relied upon the SAC / Office Head recommendations in
a segment of the larger promotion process, the Court found that the
recommendation process could be independently analyzed to assess
disparate impact. Nothing in the SAC / Office Head recommendation
process, which was the subject of the 1999 decision, however, negated
the Court's finding that Plaintiff Class Members could not establish
disparate impact in the resulting selections for promotions.
With this historical backdrop, the draft GAO report found that,
Our analysis showed no statistically significant differences in
promotion rates among various racial, ethnic, and gender groups.
This conclusion is consistent with the Agency's vigilant analysis and
monitoring of the promotion process. The draft GAO report also noted
that, as it concerned that part of the process regarding reliance upon
a validated SAC /Office Head recommendation process, DEA is
involved in pending litigation with the Plaintiff Class Members in the
matter of Segar. As such, implementation of a new SAC / Office Head
recommendation process to replace the interim process would be
dependent upon approval by the District Court as either compliant with
the District Court Order issued in 1999, or through a settlement
agreement negotiated with Plaintiff Class Members. The parties are
currently involved in mediation efforts to explore whether a joint
stipulation can be obtained for the development of a validated SAC /
Office Head recommendation process. As with most matters subject to
negotiation, however, the SAC / Office Head recommendation process
currently being considered in earnest by both parties is undergoing
evolutionary changes, which may cause it to appear drastically
different from what the draft GAO report describes. It would be,
therefore, premature for the DEA or any agency to comment upon it or
draw any conclusions related to what is substantially still a pending
process.
Additionally, in the section entitled "Results in Brief," the draft GAO
report stated,
Although DEA has a validated process to assess [S]pecial [A]gents'
promotion potential, the 1999 court decision found that a subsequent
step involving recommendations by office heads of assessed [A]gents for
promotion had resulted in an underrepresentation ofAfrican-American
[A]gents, compared with whites, and that this step had not been
validated. Interim measures modifying the recommendation process had
not eliminated this situation.
GAO-03-413, page 4-5. This statement contains inaccurate information.
The 1999 decision in Segar addressed the step in the SAC / Office Head
recommendation process whereby SAC / Office Heads with the vacancy
assessed candidates for promotion on the Best Qualified Lists (BQLs).
The above referenced statement attributes the recommendation to the
"office head of the assessed [A]gent," which is a reference to the
senior executive in the candidate's chain of supervision.
Additionally, DEA data comparing the number of recommendations under
the interim recommendation procedures by Special Agents making a BQL
that included at least one African American did not indicate a
statistically significant difference between African-American and
White Special Agents. The interim procedures, therefore, remain a
viable alternative for compliance with the 1999 Segar decision.
However, as with any process affecting the entire workforce, DEA
continues to monitor the process. Should a new process be instituted at
the Agency, the oversight plan encompasses an evaluation of all
demographics of the workforce, including, race, national origin (RNO),
and gender.
Additionally, for reasons described above, DEA must clarify the
statement of the draft report, that stated,
At the time of our review, DEA, working with the plaintiff class and
other employees, has developed and validated a recommendation process.
GAO-03-413, page 12. In the development of the current proposal for a
SAC / Office Head recommendation system to replace the interim
procedures currently in place, the EEOMC and DEA worked together with
the Segar Working Group to assess and refine the proposal. In addition
to the EEOMC, DEA convened a representative and diverse panel of DEA
employees to review the proposal. The Segar Working Group provided
conditional approval of the proposal, based upon inclusion of an
oversight and monitoring plan. DEA does not have the authority to
independently "validate" a promotion system. Rather, the members of
Segar Working Group are the parties' resident experts concerning the
selection of a validated process which uses job-related criteria to
make merit based selections. As previously stated, the process is still
the subject of mediation, and neither party currently seeks its
approval with the District Court.
Concerning the oversight and monitoring of the SAC / Office Head
recommendation system, the draft report stated that DEA "had not
initially considered tracking results by gender." GAO-03-413, page 38.
This statement is also not accurate. The oversight and monitoring will
monitor all segments of the workforce.
Furthermore, the draft report references the Career Board
recommendations to the selecting official as selections by majority
vote. By crediting the Career Board with selections, the draft report
contains a fundamental misunderstanding of the DEA selection process.
The Career Board is a body of senior executives that makes
recommendations by majority vote to the Chair, who ultimately has
responsibility and the authority to make the selection decision.
Disciplinary Process:
The draft GAO report reviewed two studies of the discipline process at
DEA,' and found both to be methodologically sound. The reports that the
GAO found to be methodologically sound found the disciplinary process
at DEA to be fair and nondiscriminatory. The draft GAO report, however,
noted that there was a higher rate of sustained discipline for
minorities and women as compared to their representation in the total
workforce during fiscal years 1997-2001.' The GAO used standard
statistical techniques for its analysis.':
These higher rates reflect that African American, Hispanic, and women
[S]pecial [A)gents had a proportionally higher number of allegations of
misconduct lodged against them and that a higher portion of these
allegations were substantiated by investigations and resulted in
disciplinary actions. DEA does not know why these differences exist nor
does any study offer a reason for them.
GAO-03-413, page 5.
For the integrity of the process, the disciplinary process at DEA does
not restrict or otherwise control the reporting of allegations against
members of its workforce. The DEA Office of Professional Responsibility
(OPR) intakes allegations of misconduct from all sources, both internal
and external to the Agency. Among the sources from which DEA OPR may
receive allegations are DEA employees, contractors, prosecuting
attorneys, other law enforcement
organizations, or private citizens. Additionally, the intake process
does not include assignment of RNO or gender information to the
allegations, or processing based on such data. As a Federal law
enforcement agency, DEA ensures that all allegations are processed
without regard to RNO or gender, as all allegations are processed.
Additionally, every complaint received by DEA OPR is reviewed by the
Office of the Inspector General (OIG), Department of Justice.
DEA notes that the draft report omits the letter of reprimand from the
discussion of potential disciplinary actions. GAO-03-413, page 41. The
Agency's Table of Penalties includes issuance of a letter of reprimand
as a disciplinary action. Unlike a letter of caution, a letter of
reprimand becomes part of an employee's Official Personnel Folder (OPF)
for up to two years.
Additionally, in the description of the disciplinary process, the draft
report did not acknowledge that DEA employees are afforded procedural
due process, including notice, the opportunity to review all evidence
upon which the Board relied, and to make oral and written replies.
In conclusion, DEA endeavors to ensure that there is a diverse
workforce at the Agency. The processes examined in this report will
undergo additional examination based upon the structured
recommendations of the GAO. Specifically, the GAO made the following
recommendations (DEA has provided numbering for easier reference):
"We recommend that the Administrator of the DEA direct that:
1. A process be initiated to monitor the results of decisions at the
various steps in the hiring process to identify differences in
selection rates among groups, and, where substantial differences are
found, determine why they occur and what, if anything, can be done to
reduce the differences while maintaining the high standards necessary
for the job ofspecial agent; ":
DEA Response: Concur. DEA will conduct a study to review each part of
the Special Agent hiring process. The DEA will study the following
steps in the hiring process for Special Agents:
(a) Minimum qualifying education and experience;
(b) Evaluation of a written test to measure the ability to write,
observe, and recall details;
(c) Minimum qualifying Physical Task Test (PTT) criteria;' (d) Criteria
for suitability overall.
The study, which is expected to take at least 18 months, will include
the following:
(a) Description of process used, history of the process, and analysis
of other processes utilized by federal and non-federal law enforcement
agencies in a search for alternative strategies that are equally valid,
administratively feasible in the DEA environment, but that might have
lesser impact on groups noted in the GAO Report;
(b) Summary of research literature on the topic, to include review of
recent job analysis, linkages and analysis of race and national origin
(RNO) and gender data for each process;
(c) Preparation of content validation reports;
(d) Management assessment of recommendations concerning implementation
of any new processes; and:
(e) Implementation of revised processes, if any.
Concurrent with the study and subject to available data, DEA continues
to monitor the results of Agency decisions at the various steps in the
hiring process to identify differences in selection rates among
minority groups. DEA also continues to pursue the Affirmative
Employment Program Plan for overcoming possible barriers within the
hiring process. After the study has been completed and should new
processes be implemented, DEA will adjust the monitoring process, as
necessary, for continuation of appropriate review and assessment.
2. A workforce analysis be done, which takes into account retirement
eligibility, expected retirements, and other attrition, to guide the
development ofDEA's recruiting and hiring plans and strategies;
DEA Response: Concur. To guide the development of the recruiting and
hiring plans and strategies at DEA, the Agency will review the Agency's
personnel data systems to assess that part of the DEA workforce that is
eligible for, or anticipate, retirement, and to identify other
attrition concerns for the Agency. Additionally, DEA understands that,
as of the date of this correspondence, the Human Resources Office of
the United States Department of Justice (DOJ) is commissioning a
workforce analysis for DOJ offices and components. DEA has volunteered
and been accepted to be the pilot agency for the DOJ workforce
analysis, which will take into account retirement eligibility, expected
retirements, and other attrition.
3. Expand the plans to monitor the results of the SAC recommendation
process by race and ethnicity to include monitoring by gender;
DEA Response: Qualified Concurrence. The use of the Special Agent-in-
Charge (SAC) / Office Head recommendations in the Agency's promotion
system for Special Agents at the GS 14 and GS 15 levels was the focus
of civil litigation in Segar, et al. v. Reno, et al,' in 1999.
Implementation of a new SAC / Office Head Recommendation process is
dependent
upon approval by the United States District Court for the District of
Columbia. The parties are currently in mediation concerning development
of a validated process and appropriate monitoring of that process.
Should a SAC / Office Head recommendations process be validated at the
Agency and approved by the District Court, DEA monitoring of the
results of the proposed process includes an oversight plan that
evaluates all demographics of the workforce, including, race, national
origin, and gender.
4. Steps be taken to develop, maintain, and assure the reliability of a
discipline database and that the study of disciplinary actions taken
against African-American and white special agents be expanded to
analyze disciplinary actions against all racial, ethnic, and gender
groups of special agents; and:
DEA Response: Concur. DEA began an effort in mid-November 2002, to
consolidate multiple discipline databases at the Agency. Each
department or office within the DEA that has responsibility for
investigating, adjudicating, or advising on matters concerning
discipline" is currently being assessed to identify functional and
reporting requirements for development of the consolidated database.
DEA expects the assessment to provide the composite for selection of
the appropriate information technology system to accomplish the task
with the requisite amount of file security. The effort, which
encompasses requirement definition, development of information
technology, capital planning, testing and accreditation, and
appropriate notice and comment in the Federal Register, is expected to
take at least 24 months.
Concerning the study of disciplinary actions taken against Special
Agents at DEA, two studies have been commissioned. The first study,
which was obtained by the Segar Working Group, did not find any
discrimination against minorities in the number recommended for
discipline or the severity of the discipline proposed or imposed as it
related to the underlying misconduct. The study, which was issued in
April 1987 for the period September 1982 to June 1986, reported results
by race, national origin, and gender.
The DEA commissioned a second study to assess the disciplinary actions
during the period 1994 through 2000. Again, the study did not support a
finding of discrimination against minorities in the Agency's
administration of the disciplinary system. The study, which was issued
in August 2001, reported results by race and national origin. Analysis
was conducted of discipline of African-American and white Special
Agents. The methodology for analysis of the data obtained in this
recent study, however, was developed for application to any group.
Accordingly, DEA will revisit the August 2001 study to analyze
disciplinary actions taken concerning remaining racial, ethnic, and
gender groups of Special Agents.
Additionally, in October 2002, the DOJ Office of the Inspector General
(OIG) initiated an audit of the "Review of the Drug Enforcement
Administration's (DEA) Discipline Process.":
The purpose of this review is to: "Assess the process by which the DEA
identifies, refers, and investigates employee misconduct, and imposes
and enforces disciplinary actions in response
to substantiated employee misconduct allegations." The review is
pending; however, to date, there have been no indications that the OIG
has found the process to be unfair.
5. Appropriate, aggregate statistical data on the outcomes of the
promotion and discipline processes for all racial, ethnic, and gender
groups are available to its special agent workforce to help special
agents formulate informed views about the fairness and equity of the
agency's promotion and discipline processes.
DEA Response: Concur. To the extent that it is consistent with law,
rule, and regulation, DEA will make available aggregate statistical
data concerning promotion selections, at a minimum, semi-annually to
the general workforce. Concerning disciplinary actions, the Agency will
make available aggregate statistical data concerning the types of
misconduct sustained on at least an annual basis to the general
workforce.[NOTE 11]
In sum, DEA concurs with recommendations, but where noted, qualifies
concurrence on matters dependent upon the outcome of pending
litigation. DEA will follow up with GAO on a course of action to
address the recommendations included in this report. In addition, DEA
has enclosed additional technical corrections to the report language
that should be made to ensure accuracy. The DEA appreciates the
opportunity to provide comment to the GAO in these matters.
Enclosure:
Sincerely,
John B. Brown, III Acting Administrator:
Signed by John B. Brown, III:
NOTES:
[1] In reviewing each process, DEA notes GAO investigators requested
discussions with minority members, which became the basis for
attributing attitudes and sentiments to the entire 1811 workforce. DEA
was not requested to present a representative sampling of the 1811
workforce, which would have included individuals from the remaining 80%
of the 1811 workforce. The Agency remains willing to provide a
representative sampling of the entire 1811 workforce.
[2] The draft report does not contain an explanation of the GAO's
selection of the "80% rule" for hiring analysis, and statistical
significance determinations for analysis of the promotion and
discipline processes.
[3] The draft GAO report does not explain why investigators chose to
analyze hiring actions under the 80-percent rule and the promotion
process under standard statistical techniques.
[4] C.A. No. 77-81 (D.D.C. Sept. 14, 1999).
[5] The DEA implemented the discipline process that currently exists at
DEA as a result of Segar v. Civiletti, 508 F. Supp. 690 (D.D.C. 1981),
affd in relevant part subnom. Segar v. Smith, 738 F.2d 1249 (D.C. Cir.
1984), cert. denied subnom. Meese v. Seaar, 471 U.S. 1115 (1985).
[6] Percentages for African-Americans: 16% of Agents disciplined to
8.3 %
of workforce, Hispanics: 15% of Agents disciplined to 8.9 % of
workforce, and women: 13% of Agents disciplined to 7.8 % of workforce.
GAO-03-413, page 5.
[7] The draft GAO report does not explain why investigators chose to
analyze hiring actions under the 80-percent rule and the discipline
process under standard statistical techniques.
[8] DEA reviewed the applicant Physical Task Test (PTT) program in the
summer of 2002. After this program review, DEA conducted market
research concerning the selection of an outside firm to complete a
validation study of the PTT for DEA. The market research focused upon
firms with experience in the completion of validation studies for law
enforcement agencies and which have the requisite subject matter expert
in the area of fitness program standards. Should the program undergo
any modification as a result of the study, DEA will conduct a training
program for the recruiters and the Physical Task Test Administrators
(PTTAs).
[9] C.A. No. 77-81 (D.D.C. Sept. 14, 1999).
[10] Currently, the DEA Human Resources Employee Relations Office,
Office of Professional Responsibility, Board of Professional Conduct,
Deciding Officials, and Office of Chief Counsel have responsibility in
the discipline process.
[11] Due to the small number of disciplinary cases processed each year, to
report any more frequently would comprise the Agency's responsibilities
in the area of privacy interests.
[End of section]
(450059):
FOOTNOTES
[1] DEA, an agency within the Department of Justice, enforces the
nation's controlled substances laws and regulations in the United
States and worldwide. DEA has 21 domestic field divisions with more
than 200 offices and 79 foreign field offices in 50 countries.
[2] 42 U.S.C. §§ 2000e et seq.
[3] The Age Discrimination in Employment Act of 1967 prohibits
discrimination against individuals who are 40 years of age or older (29
U.S.C. §§ 621 et seq.), the Americans with Disabilities Act of 1990
prohibits employment discrimination against qualified individuals with
disabilities in the private sector and in state and local governments
(42 U.S.C. §§ 12111 et seq.), and the Rehabilitation Act of 1973
prohibits discrimination against qualified individuals with
disabilities by the federal government (29 U.S.C. § 791).
[4] 5 U.S.C. 2302(b)(10).
[5] An employee or applicant may not file a complaint or lawsuit based
on sexual orientation discrimination under title VII because that
statute does not prohibit this form of discrimination. However, an
aggrieved person may seek redress through administrative processes
available to federal employees.
[6] Although proof of disparate treatment requires a showing that an
employer acted with discriminatory motive or intent, discriminatory
motive may be inferred from the mere fact of differences in treatment.
[7] 42 U.S.C. § 2000e-2(k).
[8] 29 C.F.R. Part 1607.
[9] Segar v. Civiletti, 508 F. Supp. 690 (D.D.C. 1981), aff'd in
relevant part subnom. Segar v. Smith, 738 F. 2d 1249 (D.C. Cir. 1984),
cert. denied subnom. Meese v. Segar, 471 U.S. 1115 (1985).
[10] In 1992, DEA settled a class action lawsuit that Hispanic special
agents brought alleging discrimination in promotion and assignment
practices, as well as other terms of employment (Muniz, et al. v.
Barr). Terms of the settlement, which expired in 1996, included adding
an additional SES voting member to DEA's Career Board, DEA's commitment
to the objective of having Hispanic special agents fill this position
in approximate proportion to their representation in the SES workforce,
and putting procedures in place regarding wiretap, undercover, and
temporary assignments. In addition, the settlement recognized that
since 1984 DEA had promoted Hispanic special agents consistent with
their representation in the relevant applicant pool and that DEA was
committed to the objective of promoting Hispanics in rates roughly
equal to the promotion rates of similarly situated and qualified non-
Hispanics.
[11] Segar, et al. v. Reno, et al., C.A. No. 77-81 (D.D.C. Sept. 14,
1999).
[12] DEA has since developed training and career development manuals
for GS-13, GS-14, and GS-15 special agents, which the Working Group and
the Equal Employment Opportunity Monitoring Committee approved for
issuance.
[13] Uniform Guidelines' standards for content validity include (1)
conducting a job analysis that identifies the important work behaviors
required for successful performance of the job in question and their
relative importance, and also identifies the knowledges, skills, and
abilities used in work behaviors and the relationship between each
knowledge, skill, or ability and each work behavior, (2) describing the
selection procedure, (3) providing evidence showing that the content of
the selection procedure is representative of important aspects of
performance on the job for which the candidates are to be evaluated,
and (4) considering alternative procedures.
[14] The knowledge, skills, abilities, and tasks were developed by an
outside contractor that performed a job analysis of the special agent
position.
[15] U.S. General Accounting Office, Federal Employee Retirements:
Expected Increase Over the Next 5 Years Illustrates the Need for
Workforce Planning, GAO-01-509 (Washington, D.C.: Apr. 27, 2001).
[16] U.S. General Accounting Office, A Model of Strategic Human Capital
Management, GAO-02-373SP (Washington, D.C.: Mar. 15, 2002).
[17] OMB Bulletin No. 01-07, May 8, 2001.
[18] Special agents can retire at any age with 25 years of service or
at age 50 with 20 years of service and reach mandatory retirement at
age 57.
[19] Applicants meeting minimum eligibility requirements receive
conditional offers of employment. Applicants passing all phases of the
hiring process receive final offers of employment.
[20] DEA solicits applicants by recruiting at colleges, including
colleges with high minority and women enrollments; placing ads in
publications targeting minority audiences; and reaching out to law
enforcement organizations, professional associations (e.g., Asian
American Police Officers Association, National Organization of Black
Law Enforcement Executives, Hispanic American Police Command Officers
Association, and Women in Federal Law Enforcement), and advocacy groups
(e.g., Blacks in Government). In addition, DEA's special agent vacancy
announcement is posted on USAJOBS, the Web site for federal jobs
(http://www.usajobs.opm.gov/).
[21] DEA also determines whether an applicant meets other eligibility
requirements (e.g., must be a U.S. citizen) and has no disqualifying
criminal or drug use history disclosed on the application form.
[22] In rating applications, DEA had awarded points for education and
experience. The number of points awarded for a bachelor's degree alone
did not enable an applicant to meet minimum requirements. Points
awarded for experience varied based on the type and length of
experience. For example, more points were awarded for law enforcement
narcotics and investigative experience, compared with professional/
administrative experience.
[23] The languages are Spanish, Russian, Hebrew, Arabic, Nigerian,
Chinese, and Japanese, with fluency verified.
[24] BA-98-01 was open from October 15, 1997, through March 7, 2000,
and BA-20-00 opened on May 8, 2000, and remained open during our
review.
[25] The questions are modified periodically to protect the integrity
of the testing process.
[26] The shuttle requires the applicant to start from a resting
position on his/her back and jump up and run 60 yards up and back
around traffic cones set on the floor.
[27] DEA eliminated the trigger pull test based on recommendations from
the DEA Firearms Training Unit.
[28] The Cooper Institute is nationally recognized for aerobics
research and work with fitness programs for law enforcement, public
safety, and the military.
[29] Failure of the initial physical task test is not automatically
disqualifying. Applicants are given 30 days to retake and pass the
test. Data we analyzed reflect the latest physical task test results.
[30] For this analysis, we combined men and women of each race because
of the small number of minority women.
[31] This institute establishes standards for federal agency polygraph
programs and trains all federal polygraph examiners. In addition, the
institute conducts ongoing evaluations of the validity of polygraph
techniques used by federal examiners and inspects federal polygraph
programs to ensure compliance with both those techniques and
procedures. The institute last inspected DEA's polygraph program in
January 2001 and found the program's policies and procedures were in
compliance with the standards for a federal government polygraph
program.
[32] The Minnesota Multiphasic Personality Inventory-2, a test of adult
psychopathology, and the 16 Personality Factor Questionnaire, a
personality assessment instrument.
[33] 5 C.F.R. parts 731, 732, and 736.
[34] 5 C.F.R. 731.202.
[35] According to the criteria, factors that may be considered a basis
in finding an individual unsuitable include misconduct or negligence in
employment; criminal or dishonest conduct; alcohol abuse; and illegal
use of narcotics, drugs, or other controlled substances.
[36] The approving official in the Office of Personnel and the two
permanent members of the 1811-hiring panel have received training in
making suitability determinations, as have some rotating panel members.
In addition, during 2002, field division staff began to receive
suitability determination training. Field divisions make suitability
recommendations to the Office of Personnel.
[37] For this analysis, we combined men and women for each race because
of the small numbers of minority women. We also combined the results
under both announcements because only about 2 percent of the applicants
who underwent a suitability review were applicants under BA-20-00.
[38] To participate in the SAPP, a GS-13 must have 3 years in grade
while a GS-14 is required to have 4 years in grade.
[39] Included in these totals are retest candidates. A special agent is
eligible to take the SAPP again 2 years after his or her last
participation. Of the 1,355 GS-13 SAPP participants, 406 (30 percent)
were retest candidates, while 103 (24 percent) of the 423 GS-14 SAPP
participants were retest candidates.
[40] 2001 DEA Special Agent Promotional Programs (SAPPs) for Grades 14
and 15: Revision and Administration. Prepared for the Drug Enforcement
Administration by Fields Consulting Group, Inc. (McLean, Va.: Sept.
2001).
[41] The same contractor was involved in the administration of the
1998-2002 SAPPs.
[42] The in-basket contains contents similar to those that are found in
the in-basket for the job that is being tested.
[43] Principles for Validation and Use of Personnel Selection
Procedures was adopted by the Society for Industrial and Organizational
Psychology, a division of the American Psychological Association, to
provide guidelines for the evaluation, development, and use of testing
instruments.
[44] An updated job analysis was completed in June 2002 and will be
considered in revising the SAPP for 2003.
[45] Minorities accounted for about 35 percent of assessors in the GS-
14 SAPP, while approximately 26 percent of participants were
minorities. Women were 8.4 percent of GS-14 SAPP assessors, while 7.4
percent of participants were women. For the GS-15 SAPP, minorities
accounted for about 38 percent of assessors versus about 28 percent of
participants, while women were 9.7 percent of assessors versus 8.5
percent of participants.
[46] The scores of Asian/Pacific Islanders and Native Americans are not
analyzed because their small numbers are insufficient for reliable
statistical analysis, according to Working Group members. The
Validation and Analysis Unit Chief and Working Group members said
gender analysis is not performed because early analysis found no
statistically significant differences between women and men. A Working
Group member said, however, that analysis of assessment center results
should include women.
[47] For example, because race/national origin score differences were
attributed to the in-basket exercises of both assessment centers, the
in-basket exercises were revised over the 1997-2001 period for both
assessment centers. Among the revisions were reducing the number of
items in the in-basket, strengthening the relationship of in-basket
items to dimensions measured, and increasing the time allowed for the
exercise.
[48] U.S. Office of Personnel Management, Supervisors in the Federal
Government: A Wake-Up Call (Washington, D.C.: Jan. 2001).
[49] The score bands are designed to help ensure that candidates having
similar levels of knowledge and abilities are not penalized because of
errors of measurement. The use of score bands is based on the rationale
that the measurement of abilities using predictor tests results in some
error with each candidate. The measurement error associated with tests
means that small differences in scores do not allow one to definitively
say that one candidate will do better than another on a job.
[50] In November 2002, the Career Board was increased from 10 to 11
voting members. At the same time, the number of SACs sitting on the
board increased from 4 to 6, each serving time-limited tenures. The
Administrator said that he made these changes to achieve rotation,
greater participation, and transparency.
[51] African Americans were represented on 71.5 percent, Hispanics on
57.4 percent, and women on 58.2 percent of GS-14 best-qualified lists
from which promotions were made during fiscal years 1997 through 2001.
In addition, African Americans were represented on 87.3 percent,
Hispanics on 81.9 percent, and women on 65.2 percent of GS-15 best-
qualified lists from which promotions were made during this period.
[52] The court approved a stipulation between the parties that the
disciplinary system met the court's requirements.
[53] The Department of Justice Inspector General reviews all complaints
OPR receives and can decide to take the investigative lead.
[54] Investigations involving senior executives are forwarded to the
Department of Justice for disposition.
[55] The board also reviews investigations of shooting incidents,
accidents involving official government vehicles, and damage or loss of
government property.
[56] The degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find
that a contested fact is more likely to be true than untrue.
[57] MSPB hears and decides appeals by federal employees of actions
taken against them by their agencies.
[58] Curtis Douglas v. Veterans Administration, 5 MSPR 280, 5 MSPB 313
(1981). The factors include the nature, seriousness, and notoriety of
the offense; the position of the employee; past work and disciplinary
record; effect of an offense on the employee's ability to perform his
or her job; and consistency with the agency's penalty guide.
[59] A letter of caution is nondisciplinary in nature and issued in
situations in which a charge is not sustained but the employee needs to
be warned about the appearance of impropriety or situations in which a
charge is sustained but does not warrant disciplinary action.
[60] A Study of the Drug Enforcement Administration's Current Conduct
and Discipline System, Advanced Research Resources Organization,
Bethesda, Md.: Apr. 1987.
[61] Frank J. Landy, Drug Enforcement Administration Discipline System
Study, SHL Landy Jacobs: Litigation Support Group, Boulder, Colo.: Aug.
8, 2001.
[62] The situation was similar for Hispanic special agents. Although
less than 9 percent of the special agent workforce, Hispanics accounted
for 15.9 percent of the agents disciplined during the study period.
[63] Includes initial appeals and Board reviews of initial decisions
regarding the same individual.
[64] We recognize that the views of the members of the committees may
not necessarily represent the views of their constituents. Also, there
was no group of nonminority special agents to which we could speak. We
recognize that the views of nonminority special agents could be
different from the views of the minority agents.
[65] For a discussion of this and other attributes of high performing
organizations, see U.S. General Accounting Office, A Model of Strategic
Human Capital Management, GAO-02-373SP (Washington, D.C.: Mar. 15,
2002); Human Capital: Practices That Empowered Employees, GAO-01-1070
(Washington, D.C.: Sept. 14, 2001); and Human Capital: Key Principles
from Nine Private Sector Organizations, GAO/GGD-00-28 (Washington,
D.C.: Jan. 31, 2000).
[66] Because the Segar case had remained under court supervision, DEA
provided the Monitoring Committee with the results of promotion
decisions, breaking out the data by African American, white, and other,
though not by gender.
[67] GAO-02-373SP.
[68] For additional information about ombudsmen in the federal
workplace, see U.S. General Accounting Office, Human Capital: The Role
of Ombudsmen in Dispute Resolution, GAO-01-466 (Washington, D.C.: Apr.
13, 2001).
[69] Segar v. Civiletti, 508 F. Supp. 690 (D.D.C. 1981), aff'd in
relevant part subnom. Segar v. Smith, 738 F. 2d 1249 (D.C. Cir. 1984),
cert. denied subnom. Meese v. Segar, 471 U.S. 1115 (1985).
[70] U.S. General Accounting Office, OPM's Central Personnel Data File:
Data Appear Sufficiently Reliable to Meet Most Customer Needs, GAO/GGD-
98-199 (Washington, D.C.: Sept. 30, 1998).
[71] The Uniform Guidelines on Employee Selection Procedures, adopted
in 1978 by the Equal Employment Opportunity Commission, the Civil
Service Commission (the predecessor agency to OPM), and the departments
of Justice and Labor, provide a uniform set of principles governing use
of employee selection procedures and identifying adverse impact (29
C.F.R. Part 1607).
[72] The promotion fiscal year begins October 22 of each year.
[73] Competencies were unchanged during the 1997-2001 period, except
for the 1997 GS-15 SAPP, which included the competency "ability to
allocate resources."
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