Statement of John Lee President, National Association Of Asian American Law Enforcement Commanders

The U.S. Equal Employment Opportunity Commission

Meeting of July 22, 2008 - Issues Facing Asian Americans and Pacific Islanders (AAPIs) in the Federal Workplace

Introduction

Good morning, Chairman Earp, Vice Chair, Commissioners, Colleagues, and Friends,

My name is John Lee, and I serve as the President of the National Association of Asian Law Enforcement Commanders (NAAALEC). This association was founded in 2002 as a way for law enforcement commanders to network and to promote qualified Asians into the highest levels of government. Our membership in NAAALEC is comprised of law enforcement personnel from the Sergeant level up to the Chief of Police in the state and local levels, and supervisors up to the Senior Executive Service (SES) level in the Federal sector.

On behalf of NAAALEC, I am honored to be speaking to you today and to have the opportunity to address the lack of Asian Pacific Americans (APA) in the SES. My testimony today reflects my personal views and those of NAAALEC, and do not reflect those of my employer, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).

Background

I am a third generation Chinese American born and raised in San Francisco, California. My father was the first APA to be sworn into the San Francisco Police Department in 1956. My mother also was a civil servant, working for the Internal Revenue Service and later for ATF when it was formed in 1972.

In 1982, I joined the San Francisco Police Department after receiving my Associate of Arts degree from City College of San Francisco. I left after two years to complete my Bachelor of Science degree from San Jose State University in Criminal Justice Administration. In 1987, I joined the Immigration and Naturalization Service (INS) as a Special Agent. After five years with the INS, I transferred to ATF where I have been currently employed for the past 16 years. I have progressed through a number of positions within ATF and have been in supervision for seven years. I am currently a GS-14 assigned to our Liaison Division.

I have followed Asian Pacific American (APA) issues in law enforcement since my father founded the Northern California Oriental Peace Officers Association in 1975, and have been active in APA issues since entering law enforcement in 1982. For almost 20 years, I have served as an officer and as a board member for Northern California Asian Peace Officers, the National Asian Peace Officers Association and NAAALEC before becoming its President.

Issues

Like the private sector, APAs employed in government positions encounter major obstacles in their work environments, such as stereotyping, negative cultural perceptions, overt and covert prejudice, which often results in limited opportunities for promotion. Law enforcement APA agents and officers, especially, have additional barriers they must overcome for hiring, such as fitness for duty and handling sensitive information.

All law enforcement officials go through thorough background investigations. For foreign-born APAs, that includes scrutiny of potential allegiance to their countries of birth. As stated in other reports you have received, APAs are considered "perpetual foreigners" because of the erroneous perception that our allegiance remains with our birth country and for those of us who are American born, that of our parent's national origin. A glaring example of this kind of discrimination was the case of Rita Chang,1 a highly respected FBI Special Agent working counter-intelligence who was accused of spying for the Chinese government. In 2002, she was stripped of her badge and gun and suspended because she was told she failed a polygraph examination. Upon further investigation, Ms. Chang was cleared of any wrongdoing. In fact her immediate Caucasian supervisor was implicated and later convicted as the true spy. Although Ms. Chang was cleared, what happened to her afterwards was a clear example of the "perpetual foreigner" syndrome. Her reputation was ruined and her integrity was questioned. She was denied deserved promotions, choice work assignments, and was told that her computer would be constantly monitored as part of a "risk mitigation" plan. According to her FBI superiors, it was because they believed she harbored deep resentment for the experience she went through. Director Mueller was quoted as saying that it was the failed polygraph, not her ethnicity, which placed her under suspicion. She sued the FBI and after lengthy litigation lost her case, as the government deemed it a matter of "national security" and refused to turn over any evidence.

Some APAs who enter law enforcement have had difficulty with certain physical requirements for entrance into the profession. When I started in San Francisco as a police officer, eyesight requirements were 20/100 uncorrected in each eye. It is a documented fact that most APAs are myopic, or nearsighted, and wear contacts or glasses. Another barrier was the height requirement for law enforcement candidates. At one time, the San Francisco Police Department imposed a height minimum of 5'10" that most of APAs would not have met. Had it not been eliminated, Fred Lau would not have been hired. He, of course, eventually became the Chief of Police of San Francisco and is now the Federal Security Director with the Transportation Security Administration (TSA). While many of the physical barriers have been lifted on the local, state and federal levels, uncorrected eyesight requirements are still in place.

Most law enforcement agencies are modeled after military organizations that encourage leadership with high levels of machismo and bravado. While APAs can and have succeeded in these strong, bureaucratic cultures, many capable and qualified APAs are not viewed by their non-minority supervisors as having the leadership qualities that their non-minority counterparts supposedly possess. Most of us are severely disadvantaged by the all too common stereotype that APAs are meek, unambitious, indecisive, inarticulate and subservient.

While blatant racism appears to be rare in today's work environment, subtle and hidden discrimination is still common practice. Whether it is racism or ignorance, APAs face unique challenges compared to other minority groups. APAs are often passed over for promotion or high profile assignments because we are viewed as quiet, lacking in leadership qualities – physical and mental - or are too young (looking). Because of our physical stature and youthfulness in appearance, we are viewed as needing more training or experience when other groups with similar or lesser backgrounds are considered "prepared" or more qualified.

Non-minority executives often believe that if a career-enhancing opportunity, training, or promotional selection is not made to an APA, the denial will not result in a discrimination or EEO complaint. In many cases, this may be true because there are very few APAs who would risk being "blacklisted" in his or her law enforcement career. In fact, many of the APAs who have attained the GS-15 level or the SES are the most fearful of being blacklisted. Fear of reprisal, realized or not, may result in APA supervisors not standing up to an injustice when it occurs. Only at the policy making level does this fear subside. This does not hold true for other minority groups. The perception by non-minorities is that individuals of African American or Latino descent will likely pursue the complaint process if a decision was viewed as improper.

State of the Justice Department and Other Law Enforcement Agencies

Regrettably, representation in the Senior Executive Service (SES) by APAs in law enforcement has not improved. While no agency in government exceeds the 5.89% for the entire Federal Executive Branch in Fiscal Year 2006, the numbers of law enforcement APAs in the SES are far smaller. The low showing of 3.72% for GS13 through the SES positions (for all federal employees) are well represented compared to those in law enforcement. One of the problems in particular is the lack of readily available information for the law enforcement job series.

The Department of Justice (DOJ) and the Department of Homeland Security are the two largest employers of Special Agents and other uniformed law enforcement officers. In fact, DOJ is one of the worst departments in the federal government in the preparation and promotion of law enforcement SESs of APA descent.2 The total number of SES employees in DOJ is four, one of which is female. That puts all of DOJ (sworn and non-sworn) at .7% through September of 2007. The total number of GS-15s is 3.8% and GS-14s are 3.4% respectively. The ATF has no1811 or Special Agent SESs or candidates and no GS-15 Special Agents among its approximate 2,400 agents. The FBI leads DOJ, with 3 SES APAs and a few GS-15s, but with over 12,500 Special Agents, they too are far below the Civilian Labor Force. The DEA fares no better with no SES Special Agents, no SES candidates and seven GS-15s currently.

The Department of Homeland Security (DHS)fares no better that than DOJ. In September 2007, DHS reports 0.6% APA representation in the SES, 2.4% in the GS-15 series and 3.8 in the GS-14. Again, these numbers are department wide and do not reflect the extremely poor representation of APAs in law enforcement.

Other federal law enforcement agencies fare no better. The Department of State has no law enforcement SESs, no candidates, and no GS-15s who are APAs. The Postal Inspectors have no SESs, no SES candidates, and one GS-15.

One example of success for APAs has been the Federal Security Director positions within TSA. After September 11, 2001, the TSA was quickly formed. It was a monumental task with great potential for creating a workforce that truly reflects the diversity of the United States. During the early days of TSA, NAAALEC and the National Asian Peace Officers Association (NAPOA) learned from the highest levels of TSA management that it did not get any qualified Asian American applicants for leadership positions within the organization. At the same time, TSA made many announcements about hiring non-minority former Chiefs of Police, U.S. Army Generals, and Special Agents in Charge from several federal agencies. NAAALEC and NAPOA knew of approximately 20 viable and qualified APA candidates who applied for leadership positions. These individuals included a Chief of Police of a major metropolitan area, a Deputy Chief of a major metropolitan area, an FAA Area Director, Special Agents in Charge and ASACs from many federal agencies. These individuals applied through the normal channels and did not even get a phone call or an acknowledgement letter from TSA. This oversight highlighted a distinct problem with the recruitment and hiring practices of TSA. In response to this issue, NAAALEC and NAPOA compiled the 20 candidate resumes and presented them in mass to TSA. Reportedly, 15 of the 20 candidates were interviewed and 12 were selected to be Federal Security Directors, Deputy Federal Security Directors, or Assistant Federal Security Directors.

To date, there are four SES APAs in TSA, with none on their executive staff, and the Federal Air Marshal Service has one APA SES. What is also conspicuous is that there are few if any APAs providing insight to upper management with the exception of Airport Federal Security Directors.

The lone exception to a policy level maker has been the Internal Revenue Service (IRS). They have the highest-ranking APA in federal law enforcement who holds a Deputy Administrator position within the IRS's Criminal Investigation Division. Sadly, the IRS has only one other APA, at the GS-15 level, with no other SES candidates.

As for APA women in federal law enforcement, they fare even worse. In our research, we found that there are only three SES APA female Special Agents in the United States, with no other SES candidates and no other GS-15s nation-wide.

Remedies

We at NAAALEC are in agreement with many of the recommendations put forth by the AAPI diversity study group, one of which includes tying in outstanding performance ratings and awards to effective diversity initiatives undertaken during the review period. We believe in holding executives responsible and accountable for the lack of diversity and recommend that the EEO office or other authority conduct some measure of independent oversight or audit to substantiate actions taken to increase diversity.

Mentoring is especially instrumental for law enforcement in developing future leaders. Mentors provide guidance on developing knowledge, skills and abilities (KSAs) and competencies sought by agencies. They also lend their expertise in training and provide access to executives. Formal mentoring programs within the law enforcement community are seldom utilized. However, an informal system of mentoring has been active for many years, such as a supervisor taking a personal interest in furthering a subordinate's career. Due to the lack of SESs and low numbers of GS-15 APAs, this system of informal mentoring appears to exclude or be limited for APAs.

Agencies need to create or define the career paths of its employees by clearly stating the minimum requirements for advancement. Agencies must ensure that these established requirements are attainable and accessible to all employees. These programs should include professional development programs designed to fulfill KSAs or competencies for each agency.

Directors and administrators of agencies must be held accountable for the action or inaction of their agencies. Secretaries and commissioners of departments within the federal government must equally be held accountable. Many agencies, including those within the Department of Justice, recognize that a problem exists but are seldom if ever held accountable for the lack of diversity. The proposed Senior Executive Service Diversity Assurance Act would bring much needed congressional and OPM oversight that would force leaders of government finally to take affirmative steps to assure APA diversity within the SES.

The EEOC needs to report law enforcement SESs, SES candidates, and other GS-15 employees separate from all other employees within an agency. It is known that the EEOC receives data from all agencies regarding the number of APAs in the grade Series 1811 or more commonly referred to as Special Agents, but does not issue a separate report of findings. The importance for reporting law enforcement SES positions separately is that an SES in a non-enforcement job series such as an IT department head will never affect policy for law enforcement officers. Enforcement, strategic planning, national and international crime fighting strategies, disaster response, complex conspiracy investigations, and other important day-to-day operations are conducted by sworn law enforcement. As an example, ATF has roughly 60-65% of its executives from the Series 1811.

APAs are severely underrepresented as a group in law enforcement and as such, need to be counted and categorized differently from other diversity groups (with the exception of the Native Americans). To elaborate, in EEOC reports, red flag triggers are identified on what the EEOC considers to be severely underrepresented groups based upon percentages in comparison to the Civilian Labor Force, or CLF. In law enforcement positions, APAs often have zero or one SES incumbent but as a group do not trigger a red flag as the percentages are within a certain range compared to the CLF. Our recommendation is that when an agency has zero or one APA SES or SES candidate, an automatic red flag should be triggered, forcing the agency and department to implement strategies for improvement. Currently, certain DOJ components with zero representation in the SES ranks do not trigger a red flag.

Summary

Law enforcement APAs face many hurdles in the quest for upward career mobility. Racial stereotyping, physical requirements, perpetual foreigner syndrome and the lack of role models are many of the roadblocks to the promotion and success of APAs.

As demonstrated by a recent GAO report, APA representation in the SES and SES candidate positions are far below fair representation. Law enforcement as a subgroup falls further below the reported numbers.

We support remedies such as tying performance ratings to work in diversity, establishing or formalizing mentoring programs, and the reporting of law enforcement as a separate sub group. We also support the SES Diversity Assurance Act to bring accountability to the selection process.

The serious lack of APA representation in the SES ranks will become more acute as a number of the current APA SESs are slated for retirement within the next five years. Federal law enforcement agencies need a committed, strategic plan to recruit and retain APAs into the SES program to address this issue of diversity and to truly reflect the communities in which they serve.

I would again like to thank you for this opportunity to testify and present this point of view on behalf of APAs in the law enforcement community.

Footnotes

1 Los Angeles Times, writer H.G. Reza, “Web of Suspicion: An Agent’s Career Ruined”

2 GAO 08-609T, Page 32, Appendix I, Table 20.

This page was last modified on July 22, 2008.