TIPS FOR SMALL AGENCIES CONDUCTING BARRIER ANALYSES UNDER MD-715

INTRODUCTION

Equal Employment Opportunity Management Directive 715 (MD-715) became effective October 1, 2003, with annual reports due yearly starting in January 2005. It requires federal agencies systematically and regularly to examine their employment policies and practices to identify and remove barriers to equal employment opportunity (EEO). It also provides agencies with guidance and standards for establishing and maintaining effective programs for equal employment opportunity under Title VII and effective affirmative action programs under the Rehabilitation Act.¹

MD-715 sets forth the six essential elements of a model Title VII and Rehabilitation Act program: (1) Demonstrated Commitment from Agency Leadership; (2) Integration of EEO into the Agency's Strategic Mission; (3) Management and Program Accountability; (4) Proactive Prevention of Unlawful Discrimination; (5) Efficiency; and (6) Responsiveness and Legal Compliance. It applies to more than 130 "covered" federal agencies.² These agencies range in size from large cabinet level departments with over 600,000 employees to small agencies with fewer than 500 employees. In fact, over half the MD-715 covered agencies fall into the latter category. These agencies are required, as are their larger counterparts, to take proactive steps to ensure equal employment opportunity for their employees and applicants for employment and to report on an annual basis their progress towards meeting this objective.

MD-715 requires each covered agency, regardless of size, to conduct an annual self-assessment to monitor progress and identify areas where barriers may operate to exclude or disadvantage any group based on gender, race, ethnicity or disability. Each covered agency is required to submit an MD-715 report that includes a discussion of any problems discovered during the self- assessment, any potential barriers identified as a result of the barrier analysis and an assessment of the agency's overall EEO program. Agencies are also required to provide plans to eliminate any barriers identified during the assessment and an outline of steps that will be taken to address any program deficiencies.

As part of the annual assessment, each agency is required to complete and submit a series of statistical data tables that provide a "snapshot" of the agency's workforce at the end of the preceding fiscal year. These tables provide data on the demographics of the agency's workforce with respect to gender, race, ethnicity and disability. In drafting the guidance and reporting requirements for MD-715, EEOC recognized that broad based statistical data may not lend itself to reliable statistical analyses for small agencies. Therefore, MD-715 does not require agencies with fewer than 500 employees to submit the entire complement of data tables with their MD-715 reports.³

The purpose of this report is to examine some of the challenges faced by small agencies in complying with MD- 715 and to provide recommendations on how small agencies can meet MD-715's overarching objective: Identification and elimination of barriers to equal employment opportunity.

METHODOLOGY

As a first step in understanding some of the challenges small agencies face in complying with MD-715, we looked carefully at the reporting requirements for those agencies, and whether those requirements provide small agencies with adequate tools to perform meaningful barrier analyses. With five years of MD-715 reports at our disposal, we then focused on the information provided in each agency's Annual EEO Status Report (MD-715 report or submission). The reports' Executive Summaries provided information about some of the general challenges small agencies face, e.g., limited hiring, and specific challenges they face in conducting barrier analyses and using the MD-715 statistical framework. We looked at the MD-715 data tables submitted by agencies to see where initial data suggested that a more in-depth analysis might be needed and to identify ways other small agencies had used the data tables to assist them in their barrier analyses. We also examined ways small agencies went beyond the numerical data to identify potential barriers, especially where the agency's workforce was so small that the data analysis may have had limited statistical value. We reviewed EEOC guidance currently available to agencies, such as the MD-715 instructions and "FAQs." ⁴ We also turned to the private sector and reviewed articles discussing best practices⁵ as well as EEOC's Best Practices of Private Sector Employers report.⁶ Lastly, we consulted more recent EEOC guidance, i.e., Applying MD-715 to Improving Participation of Employees with Targeted Disabilities,⁷ the Asian American and Pacific Islander Work Group Report (AAPI Report)⁸ and EEOC's Report on the Hispanic Employment Challenge in the Federal Government (Hispanic Workgroup Report),⁹ to determine if there were recommendations or suggestions identified in those documents that would be of particular use to small agencies.

CHALLENGES

Even with the reduced reporting requirements for small agencies, many of these agencies point to limited resources and the absence of a full-time or dedicated EEO director as major challenges to complying with MD-715. In many small agencies, the function of the EEO Director is collateral duty and the individual has limited time available to perform the type of barrier analysis and self assessment MD-715 requires.

As a result, the rate of compliance for small agencies is lower than that of their larger counterparts. Of the seventy (70) agencies with fewer than 500 employees, only 47% submitted MD-715 reports for FY 2007. The rate of compliance was greatest for the agencies with 100 or more employees. For those agencies with 100 to 500 employees, 67% submitted a report for FY 2007, while only 35% of agencies with fewer than 100 employees submitted reports for FY 2007. In fact, over half of the "micro" agencies (i.e., those with fewer than 100 employees) have never submitted an annual MD-715 report.

Many small agencies point to added challenges such as limited hiring, low turnover, inability to pay relocation expenses, minimal resources for participating in job fairs, highly specialized occupational groups and competition with larger agencies for qualified employees who may view larger agencies as having more advancement potential. Other challenges small agencies cited, such as a low representation of Hispanics in the workforce and a low number of individuals with targeted disabilities, are similar to those faced by larger agencies.¹⁰

The challenge for all federal agencies is how to meet the goal of ensuring that there are no barriers to equal employment opportunity for any group based on gender, race, ethnicity or disability. As will be discussed in detail below, proper and creative use of the tools MD-715 offers are essential to meeting this goal.

CONDUCTING THE SELF-ASSESSMENT AND BARRIER ANALYSIS

MD-715 requires agencies to populate and submit a series of workforce data tables, which agencies are instructed to use as diagnostic tools to help identify possible areas where barriers may exist. MD-715 cautions agencies that statistics are only a starting point and that all data must be evaluated "in the context of the totality of the circumstances." This is especially true when it comes to small agencies, where even the slightest shift in demographics can suggest problems where none exist. Similarly, using broad based statistical data as a benchmark may impede identification of potential barriers. Each agency must conduct its assessment and analyze the corresponding data with its unique circumstances in mind. Each agency has to tailor its program assessment and barrier analysis to the size of its workforce, its organizational structure, the rate of change in the workforce from year to year, the nature of the work performed and, in some instances, the mission of the agency. The assessment and data analysis MD-715 requires is not a "one size fits all" approach.

Following are tips for agencies, particularly small agencies, in conducting barrier analyses, identifying and eliminating potential barriers, and taking proactive steps to ensure equal employment opportunity for all employees and applicants.

Workforce Analysis

• Conduct a separate barrier analysis for each major occupation. Although agencies with fewer than 500 employees are not required to submit the MD-715 major occupation tables,many small agencies have highly specialized workforces and a significant percentage of their employees in one specialized occupational group, e.g., attorneys, nuclear engineers, accountants. If one occupational group accounts for a significant percentage of the agency's total workforce, a barrier analysis that separately examines that occupational group is useful to identify potential barriers.
  It is important to note that the representation of any gender, racial or ethnic group among a particular occupational group may be quite different from their representation in the overall civilian labor force (CLF). By using the relevant CLF for any occupational group that accounts for a relatively large percentage of the workforce, an agency may be able to explain a statistical disparity that appears using only the general CLF or identify potential barriers that may be hidden behind the overall CLF data.
  • Example: One agency with a total workforce of approximately 200 employees notes that attorneys account for half of the employees in its workforce. Because females account for 46.8% of the overall CLF, but only 28.7% of all attorneys, using the overall CLF data for comparison purposes might suggest a disparity where one does not exist.
  • Similarly, one agency reports that 64 of its 100 authorized positions are senior level scientist and nuclear engineers. The census shows an availability of 5.7% for Asian male nuclear engineers, while the overall CLF shows an availability of only 1.9% for Asian males. For a small agency with more than 60% of its workforce employed in a highly specialized field, using the overall CLF data for comparison could mask potential barriers.

Although agencies with fewer than 500 employees are not required to submit the MD-715 major occupation tables, by utilizing the Census 2000 EEO Data Tool, which is available on EEOC's website,¹¹ and completing Table A6, (Participation Rates for Major Occupations), agencies can compare the representation of specialized occupational groups within their workforce by race/, national origin and gender to their respective representation in the CLF.

• Consider other factors that may affect the demographics of the agency's workforce, such as the composition of the local CLF. The demographics of an agency with a centralized workforce in a major metropolitan area may differ greatly from an agency with sites in more rural areas. Similarly, the relevant CLF for any specialized occupational group can vary greatly from one area of the country to another.

  • Example: Asians represent approximately 2.2% of all attorneys nationwide, but 9.2% of attorneys in the San Francisco metropolitan area. Similarly, Blacks represent 3.9% of all attorneys nationwide, but 7.9% of attorneys in the Washington, D.C. metropolitan area.

  Therefore, agencies with a centralized workforce may want to examine the data for the surrounding metropolitan area, and not rely solely on the overall CLF data. However, it may not be appropriate to use the local CLF for all occupational groups in an agency when 70% of the workforce is centralized in a headquarters location in a metropolitan area such as Washington, D.C., but the remaining 30% are spread across the country.

  It is important to consider all factors when determining whether to use local CLF data. For example, it may not make good sense to use local data when a job -- particularly a job in a senior pay level -- is advertised nationally through USAJobs. The local CLF may be the correct comparator, however, if the agency posted a lower paying job only in a particular region and does not pay moving expenses.

  It is important to remember that the MD-715 data table analyses are tools to highlight or identify areas where a more in-depth analysis may be necessary to determine whether there are any barriers to equal employment opportunity for a particular group of employees or applicants. This does not mean that every agency will mirror the national civilian labor force, the local civilian labor force or even the relevant occupational labor force.

• Examine how the agency's mission may affect demographics. Several small agencies report that their mission, in part, drives the demographics of their agency. Although this may lead to greater diversity for some agencies, it complicates the barrier analysis in that the representation of any particular group will rarely correspond to their representation in the CLF.

  • Example: An agency whose mission involves development in Latin America and the Caribbean, or one whose mission is promoting cooperation in managing shared water resources with Mexico, may have a significantly higher representation of Hispanic employees than expected based on the CLF.

  Although small agencies with highly specialized missions that affect their demographics must ensure that there are no barriers to equal employment opportunity for any group, it is important to realize that certain statistical analyses provided for in MD-715 are diagnostic tools and may not be practical for every workforce.

Recruitment

• Do not overlook the importance of collecting, analyzing and using applicant flow data. Although small agencies are not required to provide applicant flow data in their MD-715 reports, the collection and evaluation of applicant flow data is essential to the development of an effective recruitment strategy and to assess its success. The analysis of applicant flow data is also essential to any meaningful assessment of hiring practices.In order to determine whether there are any policies or practices that result in barriers to equal opportunity in hiring, an agency must first determine whether its applicant pool is sufficiently diverse. It is important to know whether individuals are not being hired because they are not represented in the pool of qualified applicants or whether there is some hiring policy or practice that is eliminating qualified candidates from consideration. On May 22, 2009, the Office of Management and Budget (OMB) approved EEOC's Applicant Background Questionnaire,¹² which provides a method by which agencies can track and record gender, race and national origin information on applicants for federal employment.¹³
• Develop a strategic recruitment plan. The development of a strategic recruitment plan is essential for small agencies with limited hiring and limited resources. Small agencies should develop strategic recruitment plans designed to ensure a diverse applicant pool for all vacancies. If recruitment efforts are limited to posting vacancies on USAJobs or similar sites, recruitment may not result in a representative applicant pool.
  • Agencies may need to use different recruitment strategies for different occupations. Advertising in professional journals and associations may result in a wider applicant pool for certain types of positions.
  • One agency reports that it has its staff make contact with the professors at their alma maters and/or use their alumni associations to recruit qualified applicants and to inform students about career opportunities available with the agency. Should those schools themselves lack diversity, this of course could be problematic and perpetuate, rather than reduce, disparities in representation.
  • Many small agencies partner with larger agencies or other small agencies in sponsoring job fairs. Small agencies may also join forces to sponsor career specific job fairs when several agencies are recruiting for the same type of position, e.g., information technology specialist.
  • As recommended in EEOC's Hispanic Workgroup Report, agencies whose mission-critical occupations include science, technology, engineering and/or mathematics may wish to establish a consortium to coordinate recruitment efforts.
  • Some agencies maintain an e-mail group of college placement offices, special interest or advocacy groups, professional organizations and other similar contacts and routinely send vacancy announcements to those groups. For example, many agencies report that they send job announcements to groups such as the National Council of Hispanic Employment Program Managers and National Association of Hispanic Federal Executives.
  • Targeted college recruitment may also be helpful; many agencies widen their applicant pools by sending vacancy announcements to historically black colleges and universities (HBCUs) and Hispanic-serving institutions (HSIs).
  • As recommended in EEOC's Hispanic Workgroup and AAPI reports, making better use of intern and mentoring programs, having full-time special emphasis program managers and using affinity groups as liaisons may be included in strategic recruitment plans.
  • Many small agencies have a very low representation of individuals with targeted disabilities. Therefore, agencies' strategic recruitment plans should include the use of various hiring authorities designed specifically to benefit people with disabilities (including veterans with disabilities). There should be at least one person within an agency's Office of Human Resources (OHR) who is familiar with the various hiring authorities, internships, and employment programs available to expedite the hiring of individuals with disabilities.¹⁴
• Regularly assess and, if necessary, revise recruitment strategies. Agencies must have a means of assessing whether their recruitment strategies are working and must regularly evaluate those strategies. For example, at least one agency reported year after year that it utilized a particular program to recruit individuals with disabilities, but the workforce profile showed no increase in individuals with targeted disabilities over a three year period. The most important thing is regularly to evaluate recruitment strategies. Did the agency achieve its goals? What worked? What didn't work?
  • Both the AAPI and Hispanic Workgroup reports recommended holding managers accountable for effective recruitment by including a diversity element in their performance plans.
  • Many application processes ask applicants how they learned of the vacancy. Gathering and analyzing this information can help determine whether recruitment efforts had any effect on the composition of the applicant pool. If an agency can determine how applicants learned of the vacancy, it can determine whether its recruitment strategies are yielding the desired results.
  • It is important to be able to identify the specific recruitment strategy that increased the diversity of the applicant pool to be able directly to tie recruitment efforts to the increase in applicants from a particular group.
  • Another important use of applicant data is to determine whether applicants are from a specific geographical area. If an agency does not pay relocation expenses for new hires, do applicants tend to come from the commuting area near the work location? Is there a difference based on the grade level of the position? Do applicants for higher graded positions come from a broader geographical area? If so, recruitment strategies may differ based on the type of position and grade level.
  • Many small agencies express concern regarding the costs associated with expanded recruitment efforts. Therefore, a well thought out strategic recruitment plan is important to ensure that limited recruitment funds yield the best possible results.

Hiring Practices and Procedures

• Review and evaluation of hiring policies and practices. Although agencies with fewer than 500 employees are not required to submit the MD-715 new hires data tables, the information that can be gleaned from such data is meaningful for conducting barrier analyses.
  • Many small agencies overlook the importance of analyzing data on new hires because the number of individuals hired in any given year may seem negligible. However, it is important to look at the number of new hires in relation to the size of the workforce. Even when an agency's net workforce remains unchanged or decreases, hiring should be examined.
    • Example: One small agency showed a net decrease in the number of employees in its overall workforce from FY 2006 to FY 2007. Despite the decrease, the agency, which has a total of 360 employees, hired 36 new employees during FY 2007. Therefore, ten percent of its workforce changed during FY 2007.
  • An important first step is determining how and where hiring decisions are made. Is the process centralized or do hiring decisions rest in the hands of lower level managers at various locations?
  • For small agencies, it is also useful to look at hiring trends over several years and to look specifically at the types of positions for which individuals were hired and the qualifications of the successful candidates. Are individuals with advanced degrees routinely hired even though the position does not require an advanced degree? Are these hires successful employees? Are they still with the agency five years later?
  • Agencies should examine information on new hires to see what types of candidates are more successful, i.e., graduates from a particular college or group of colleges, candidates with certain college majors, a particular employment background, federal employees or applicants from the private sector. There may be "unofficial" selection criteria that affect the likelihood of a candidate being hired for a particular position.
    • Example: Some agencies select applicants with degrees from certain colleges or universities at a greater rate than those with similar credentials from other schools. If the college or university does not have a diverse student body, limiting new hires to applicants who graduated from those particular schools may affect the representation of certain racial/ethnic groups in the agency's workforce. It is important to be aware of how "unofficial" selection criterion may operate within an agency.
  • Agencies should consider the actual selection criteria used. Although the vacancy announcement includes information about the minimum or desired qualifications for the position, what criteria were used to select the successful candidate? If the minimum educational qualification is a bachelor's degree, but most successful candidates have advanced degrees, recruitment efforts at the undergraduate level at colleges and universities may not be the best use of resources. It is important to see who actually gets hired and why.
  • It is important to evaluate the selection criteria that tend to screen out a particular group. This is one of the most important steps in a hiring barrier analysis. For example, as noted above, it may be that although a position requires an undergraduate degree, persons with more advanced degrees are in fact the candidates being hired, and that this is screening out other qualified candidates. It is important that agencies eliminate any "requirements" that are not necessary to the job.

Promotions

• Closely examine promotions to help identify potential barriers to equal opportunity and assist in the design and development of effective career enhancement programs.
  • Identify actual feeder pools. Do not assume that individuals in the next lower grade in a particular position are necessarily the appropriate feeder pool.
    • Example: An agency may require only an undergraduate degree for certain management positions, but a review of the qualifications of those promoted into those positions over the past several years shows that all successful candidates had advanced degrees. Therefore, those employees in non-management positions in the same series at a lower grade level may not necessarily be part of the true "feeder pool" for management positions.
  • When looking at management positions, it is important to determine how individuals are selected for those positions. Are most promoted from within the agency, hired from another federal agency or hired from the private sector? Do most managers come from a particular series or job classification?
  • Are there certain jobs or offices that are more likely to lead to management level positions? What experience did the successful management candidates possess as compared to those who applied but were not selected for management positions?
  • Ask decision makers within the agency about senior level positions. What are the most important characteristics of a successful candidate, i.e., level of education, years of experience, type of experience, interpersonal skills, etc?
  • If the agency has a management development program, how are employees chosen to participate in the program?
  • Does the agency use details or temporary promotions to fill management vacancies until a permanent selection is made? If so, how are employees selected for details or temporary promotions? In many cases, employees who are given the opportunity to act in a managerial capacity have an advantage over other candidates.

Affirmative Action Programs for Individuals with Targeted Disabilities¹⁵

Section 501 of the Rehabilitation Act requires each federal agency, regardless of size, to have an affirmative action program plan for individuals with disabilities. Thus, although small agencies with fewer than 1000 employees are not required to establish a special recruitment program with specific goals for the employment and advancement of individuals with targeted disabilities under MD-715, they still are responsible for affirmative action hiring and promotion under the Rehabilitation Act.

• Using special hiring authorities can be an effective and streamlined method of bringing persons with disabilities into the workforce. By using the Schedule A appointing authority,¹⁶ qualified candidates who meet the Schedule A guidelines can be hired non-competitively, without posting and publicizing the vacancy, and without going through the certificate process.¹⁷
• Provide training for managers and supervisors to overcome stereotypes regarding individuals with disabilities. Focus training on helping managers see how, with or without reasonable accommodations, individuals with disabilities can perform the various jobs within the agency. Ensure managers understand their responsibilities with respect to reasonable accommodation, as it is likely that they will be more directly involved in the process.
• Ensure that there is at least one person who has a workable level of knowledge about resources readily available to assist agencies in the provision of reasonable accommodations. For example, if an applicant who is hearing impaired needs an interpreter for the interview, the agency should have a list of resources available to be able to accommodate the individual in a timely manner.
• Issue well written reasonable accommodation procedures. This is important even if there is no individual in the agency's current workforce who needs an accommodation, because the process must be made available to applicants as well as current employees, and because current employees could develop the need for an accommodation at any time during their employment. All such procedures should be submitted to EEOC for approval and made readily available to employees and applicants on the agency's internal and external websites.
• Develop a strategic recruitment plan for individuals with targeted disabilities. Regularly assess whether the plan is working.
  • Some agencies report that they use the Workforce Recruitment Program,¹⁸ a recruitment and referral program that connects federal sector employers with college students and recent graduates with disabilities.
  • Other agencies report regular participation in job fairs that focus on individuals with disabilities such as those sponsored by Gallaudet University and the Career Expo for People with Disabilities.¹⁹
  • Develop working relationships with disability organizations and advocacy groups. Provide vacancy announcements to these organizations as well as to state vocational rehabilitation services.
• Overcome data table challenges. With respect to the MD-715 reporting requirements, small agencies face some unique challenges in completing the required data tables.
  • Tables B3 (Occupational Categories – Distribution by Disability) and B-4 (Participation Rates for General Schedule (GS) Grades by Disability) call for the number of individuals with specific targeted disabilities. For small agencies, this could lead to the identification of a specific employee.
    • Example: An agency with only 100 employees has ten employees classified as administrative and support workers. One of those employees has a non-visible targeted disability (e.g., mental illness). Table B-4 reveals that the employee with the targeted disability is employed at the GS-8 level. If there is only one GS-8 administrative support person, other employees easily will be able to identify the individual employee.
  • Similarly, the small size of an agency may make individuals less likely to self-identify non-visible disabilities (e.g., convulsive disorder, mental illness) because of concerns that their disability status will not remain confidential. As such, small agencies may have to provide additional information and assurances as to how the information will be used. In some agencies, employees are able to self-identify as having a disability by entering the data directly into a database, rather than submitting a completed form to OHR. This affords the employee a greater level of privacy.
  • If the agency-wide numbers are so small that it is likely an individual employee could be identified from the information in its annual MD-715 report, the agency may consider restricting access to that portion of the report.

CONCLUSION

As stated above, MD-715 provides for the use of statistical data as adiagnostics tool to help agencies identify possible barriers to equal opportunity. The statistics garnered from the data tables are only a starting point for the more in-depth assessment needed to identify areas where barriers may operate to exclude or limit certain groups. Agencies should not focus merely on the completion of the tables or the submission of the annual MD-715 report. The goal of identifying and eliminating barriers is much more important than the creation of a report or the completion of workforce tables.

Small agencies, in particular, must evaluate the data with their distinctive characteristics in mind. They may also have to seek out and use other reliable ways of identifying potential barriers such as exit interviews from employees who are leaving the agency, EEO-related grievances and complaints, surveys of employees on workplace environment issues, and input from agency employees, advocacy groups and union officials. All these sources can provide valuable information to assist in identifying barriers.

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