IRS: Affirmative Action on Hold

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A reverse discrimination case at the IRS has prompted the agency to suspend sections of managers' performance appraisals calling for the advancement of minorities and women. A broader standard calling for decisionmaking "without regard to sex, race, color, national origin, religion, age, disability, sexual orientation or prior participation in the EEO process" has replaced the earlier sections at least temporarily, IRS officials told a congressional oversight committee Tuesday.

Charles Fowler, national director for equal employment opportunity and diversity at the IRS, testified before the House Government Reform and Oversight Subcommittee on the Civil Service that a federal district court decision involving four white male employees forced the service to review its affirmative action policies. In the April 1997 decision, Byrd vs. Rubin [Civil Action Number 95-1280, 5/9/97], the U.S. District Court for the Southwestern District of Louisiana ruled that an IRS affirmative action policy violated the Fifth Amendment equal protection clause by encouraging "institutional discrimination against white male employees because its objective was to increase representation of women and minorities in managerial and executive positions through employee development and advancement strategies," Fowler said. The district court "concluded that diversification of the service's workforce was not a compelling governmental interest sufficient to justify the agency's use of race and gender criteria in decision making," he said.

In an August 19 memorandum, acting IRS Commissioner Michael Dolan suspended the sections of the managerial performance appraisals that the court deemed unconstitutional. The first suspended standard called on managers and executives to "coach and develop employees to achieve parity at all grade levels which is reflective of the civilian labor force by eliminating barriers in recruiting, hiring, training and promoting minorities, women and persons with disabilities." The second suspended standard dealt with minority and female contractors.

In a Sept. 22 memorandum, James O'Malley, national personnel director for IRS, informed managers that a new equal employment opportunity standard had been added to their performance appraisals, instructing managers to prohibit discrimination against all employees, not just minorities and women.

The IRS is continuing to review its affirmative action policies with help from the Treasury Department and the Justice Department, Fowler said.

Rep. John Mica, R-Fla., chairman of the subcommittee, said he was concerned that other agencies may be open to similar lawsuits because each agency sets its own performance appraisal standards. He said the Office of Personnel Management should "make sure we are all singing off the same page in the hymnal."

"If one agency's policies are found to be unconstitutional, it is incumbent on the administration to make certain that all other federal agencies are not repeating those errors," Mica said.

According to an OPM official, OPM reviews agencies' overall performance appraisal systems, but does not issue guidance on specific standards like the ones at IRS that the court deemed unconstitutional.

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