Foreign Relations of the United States, 1977–1980, Volume XXVIII, Organization and Management of Foreign Policy

216. Memorandum From the Deputy Assistant Secretary of State for Personnel (Gershenson) to the Under Secretary of State for Management (Read)¹

Washington, January 9, 1979

SUBJECT

• Women’s Class Action Litigation

Attached is a copy of plaintiffs’ proposals on the issue of promotions, which will be discussed at your meeting with plaintiffs’ lawyers on Wednesday, January 10, at 4:30.²

The proposed remedies basically entail: (1) equalizing the percentage of promotions for women and men FSOs by cone and by grade—a de facto quota system of promotions; (2) accelerated promotions for women FSOs in classes O–4 and above to achieve percentage “parity” with their male counterparts by 12/31/81; and (3) the establishment of a separate “Hearing Panel” mechanism to review individual complaints of discrimination arising from the proposed settlement which might occur over the next five years.

Based on our preliminary review of plaintiffs’ proposals, we do not feel that we can accept any of their proposals as presented, nor do we believe that we can negotiate meaningfully on most of these issues. Our conclusions are based on several factors:

—implicit in the acceptance of plaintiffs’ plan would be our acknowledgement that we had systematically discriminated against women FSOs, a finding based principally on statistics. If we accept the validity of this line of argumentation, it could pave the way for future litigation by other groups of “statistically disadvantaged” employees.

—the attempt to achieve percentage “balance” between men and women FSOs by grade and cone through the establishment of a “quota” system of promotions will have a significant adverse impact on non-female FSOs currently in the system. We are attempting to analyze the numerical goals presented by plaintiffs to determine their impact on the promotion system if implemented. In this regard, you may wish to ask plaintiffs’ lawyers about the source and rationale for their percentage goals, since we are unable to correlate their figures with our own data.

—we cannot accept plaintiffs contention of a presumption of discrimination if a female FSO remains in class nine months longer than the average time-in-class of her male counterpart. Such a rationale, if accepted, would undermine the Department’s promotion system.

—while we may wish to pursue further the concept of a separate “Hearing Panel” as presented in plaintiffs’ proposal, we would not wish to accept the rigid criteria and administrative guidelines that they have outlined.

Attachment

Paper Prepared in the Bureau of Personnel³

Washington, undated

PLAINTIFFS’ PROPOSED “PROMOTIONS” SECTION OF SETTLEMENT AGREEMENT IN PALMER v. VANCE AND KING v. VANCE

Affirmative Action Goals For Women’s Promotions

With respect to each round of promotions, the percentage of women FSOs from each grade⁴ who are promoted shall at least equal the percentage of men from such grade who are promoted. This requirement shall apply both to the FSO corps as a whole and within each cone. However, with respect to the grades of Career Ambassador, Career Minister and FSO–1 through FSO–4, women shall be promoted at the rate necessary to achieve the goals set forth in the following table:⁵

Grade	1977 Percentage of male FSOs who are in grade	1977 Percentage of female FSOs who are in grade	Percent of women in each grade
			12/31/79 goal	12/31/80 goal	12/31/81 goal
CA	0	0	[to be equal to male percentage]
CM	1.0%	0	.2%	.6%	1.0%
FSO–1	10.5%	2.4%	4.4%	8.4%	10.5%
FSO–2	9.5%	2.4%	4.4%	7.4%	9.5%
FSO–3	19.4%	11.6%	13.6%	17.5%	19.4%
FSO–4	23.6%	15.1%	17.2%	21.4%	23.6%

Promotions resulting from any of the following procedures shall apply against the affirmative action goals:

(a) Standard Department of State promotion processes (taking into account that women and men are to be promoted in like percentages);

(b) Conversion to FSO status in these ranks of women of officer-level rank who have been employed by the Department for at least 3 years; and

(c) Remedial retroactive promotions resulting from the procedures, described below, for “Individual Relief.”

Individual Relief: Promotions

1. Any individual class member (including those who left the FSO corps after August 3, 1976), who believes that she has been discriminated against because of her sex, may submit to the Administrator⁶ a sworn claim within 180 days of having been informed by the Department of the Agreement. An additional 90 days shall be provided to persons overseas so that they will have adequate time fully to present their claims. The Department shall inform class members within 15 days of the date of the Court’s approval of this Agreement. The Administrator shall have 30 days from the filing of the claim to attempt to conciliate the claim. If agreement is reached, the parties will file with the Court a stipulation of dismissal.

2. If, after the period for concilation, no resolution is reached under paragraph 1 of this section, the Administrator shall forward the claim file to a Hearing Panel which will be appointed by the Court. The panel shall consist of: a representative chosen by the Department; a representative chosen by plaintiff’s counsel; and a third party chosen by the Court. The Agency and plaintiffs shall submit the names of their representatives to the Court for its approval within 30 days of the date of the Court’s approval of this Agreement.

3. If the Hearing Panel finds the claim has been substantiated, the claimant shall be awarded appropriate relief, which may include, inter alia, immediate and retroactive promotion and back pay, step increases and other appropriate benefits, back-dating of personnel actions, and extension of time in class equal to the time covered by the back-dating.

4. If the claimant shows that she was in class one-third longer or nine months longer (whichever is less) (for lateral entrants the time in class shall include service at an equivalent grade of a previous pay plan) than the average time-in-grade for all male employees then eligible for promotion at the same rank, the Department shall have the burden of showing by clear and convincing evidence a legitimate, nondiscriminatory reason why the individual, when compared with those men who were promoted, was not promoted. In order to verify the comparison, claimant and her counsel shall be permitted to review 10% of the files of male promotees from her grade (or 10 files, whichever is greater) after such files have been redacted to conceal the identity of such promotees. Such files shall be selected by claimant on a random basis. The Department shall have the opportunity to object to production of individual files only on the ground that such files cannot be redacted adequately to conceal the identity of the promotee. In the event the Department so objects, a member of the selection board which reviewed the file, who shall be acceptable to claimant, shall consider the validity of the objection and decide whether or not the redacted file shall be furnished. In the event the selection board member determines that the file should not be furnished, another file, selected at random, shall be substituted. In the event that the Department objects to the production of that file for the same reason, the selection board member shall make a determination as to the new file. Such selection and review shall continue until claimant or her counsel has access to the required percentage or number of files.

5. Any individual filing a claim pursuant to paragraphs 1–4 above shall do so in the form of a sworn written statement setting forth with particularity any facts which she believes support her claim of sex discrimination.

6. Each claimant shall be entitled to be assisted or represented by plaintiffs’ counsel in preparation of her claim and in any proceedings before the Administrator and/or the Hearing Panel. The Administrator and/or the Hearing Panel shall award reasonable attorney’s fees for services performed and costs and expenses incurred to successful claimants and may award such fees and expenses in other cases where it is appropriate.

7. These provisions for providing individual relief shall remain available until five years from the date of the annual promotion list next appearing after the date of this Agreement for the purpose of providing a remedy to women who suffer sex discrimination in the field of promotions during the period between the approval of this Agreement and that date.

Promotion Boards and Standards

1. The Department shall assign equal numbers of men and women officers of the Foreign Service to serve as members of all promotion panels and boards, including “threshold” panels and the Board appointing Career Ministers, and ensure that equal numbers of men and women officers of the Foreign Service chair such panels and boards.

2. The Department shall apply the same standards for promotion to both men and women FSOs and make written records of the Promotion Boards’ deliberations to document the reasons for the boards’ decisions.

Relation to Assignments and Training⁷

1. The Department shall ensure that women FSOs are given assignments and training which provide them with the experience and background necessary for them to receive promotions on an equal basis with men.

2. To ensure that women FSOs are fully utilized and fairly considered for promotion, any woman who is eligible for promotion and has not been promoted by the time she reaches the average time-in-grade for all male officers eligible for promotion may ask to have her file reviewed by the Administrator, within 180 days of reaching that average time-in-grade, to ensure that she received the assignments and/or training required under this agreement. The Administrator shall make a determination whether the requirements of this agreement have been met and shall report his or her conclusions to the employee and to plaintiffs. The Administrator shall advise the employee of her rights under this agreement and applicable laws and regulations concerning discrimination in employment.

3. If for any year for which reports are required by this agreement, the average time-in-grade of all women FSOs who are eligible for promotion in each grade exceeds by three months the average time in grade for all male FSOs eligible for promotion in the same grades, the Administrator shall review the records of all women eligible for promotion who have been in grade one-third or nine months (whichever is less) longer than the male average to ensure that the employees received the assignments and/or training required under this agreement. The Administrator shall report his or her conclusions concerning whether the requirements of this agreement have been met to plaintiffs. Upon request by plaintiffs, the Administrator shall conduct such a review and make such a report.

Monitoring

1. The Department shall, at regular intervals of 180 days for the next 5 years from the date hereof, or for such longer or shorter period as the Administrator determines is appropriate, provide reports to the Administrator setting forth the following information concerning the promotion process in the Department:

(a) The number of promotion boards, panels or other entities involved in promotion considerations and recommendations convened for each FSO grade level and the number of times each was convened;

(b) The number of men and the number of women FSOs assigned as members to each such board, panel or entity involved in FSO promotional decisions;

(c) The percentage of those considered for promotion by each such board, panel, or other entity involved in FSO promotional decisions, who are (1) men and (2) women, for each grade level and cone;

(d) The percentages of those grouped or rank-ordered for whatever reason and by whatever category by each such board, panel or other entity involved in FSO promotional decisions, who are (1) men and (2) women;

(e) The number and percentage of those FSOs actually promoted at each grade level who are (1) men and (2) women for each grade level and cone.

2. Copies of the Department’s reports to the Administrator shall be mailed to plaintiffs.

1. Source: National Archives, RG 59, Records of the Under Secretary for Management (M), 1978–1979, Box 5, Chron January 6–10, 1979. No classification marking. Drafted by Kang Huang (DGP/PC).
2. No minutes of the meeting were found.
3. No classification marking.
4. This includes junior officers (grades 6, 7, and 8) because at the time the suit was filed such officers were foreign service officers. [Footnote is in the original.]
5. Brackets in the table are in the original.
6. An Administrator for the settlement shall be appointed by the Department who is acceptable to plaintiffs. This subject would be covered in another section of the settlement agreement. [Footnote is in the original.]
7. Plaintiffs anticipate that a final settlement agreement will contain additional provisions concerning assignments and training. [Footnote is in the original.]