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.
—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:
[Page 904]
(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, nondiscrimina[Page 905]tory 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.
[Page 906]
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:
[Page 907]
(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.
