The Gender Trap

Since the beginning of the Clinton administration, federal agencies have been engaged in the relentless pursuit of a more diverse workforce, but when does the quest for diversity morph into discrimination or managerial misconduct? A case handed down in April by the Equal Employment Opportunity Commission's Office of Federal Operations illustrates how striving for diversity, admirable in the abstract, can go awry.

Paul Straughn had worked in the Commerce Department's Office of Export Enforcement in Dallas as a criminal investigator since 1987 and, by early 2000, had become a GS-13. In February 2000, the export office put out a vacancy announcement for four supervisory positions at the GS-14 level with promotion potential to GS-15. Straughn applied for the position in the Chicago area.

The agency's selection panel referred nine applicants, including one woman, to the selecting official, Export Enforcement Director Mark Menefee. His superior, Assistant Secretary for Export Enforcement Amanda DeBusk, however, asked him whether "the diversity of the applicant pool could be improved" by referring 15 applicants instead of nine. Menefee told her the process took diversity into account and there was no need to revisit the issue. Josephine Fontana, selection panel chairwoman, agreed, saying in the official EEOC interview that adding candidates would be "scraping the bottom of the barrel." But Menefee changed his mind and told the panel to refer additional candidates, including another woman, Wendy Hauser, who was named to the Chicago position.

Straughn filed a complaint with the EEOC after he was passed over and the two women were selected, saying he was a victim of discrimination. Following an investigation, Commerce admitted that Hauser would not have been selected if gender were not a factor.

In his statement to the EEO investigator working on Straughn's case, Menefee revealed the extent of his boss' quest for female candidates, saying she "wanted at least one female selectee" and that she did not want to select a "group of white males from within the office." In fact, when Menefee took the selection panel's list of finalists to DeBusk, she was dissatisfied that only one woman's name appeared. She ordered the panel to reconvene, saying she wanted additional referrals to "include diversity," and that she specifically wanted Julie Salcido, one of the original nine applicants, to be selected for a position. Menefee said he told DeBusk that Salcido was unqualified, but she was selected for the post in San Jose, Calif., anyway.

Also, Menefee said he did not know why the panel referred Hauser other than to appease DeBusk. (She eventually replaced him with a more tractable selecting official.) John Sopko, deputy assistant secretary for export enforcement, agreed, testifying he had no doubt that DeBusk wanted two women selectees. Sopko noted she had said that it was "personally and politically important" for her to make "diversity" appointments. DeBusk refused to cooperate in the investigation and, the EEO report said, "assiduously avoided any discussion of her role in the selection process."

Although the Commerce Department admitted to discrimination in the case, justice was denied all around, thanks in part to the glacial pace of the proceedings. The decision was issued almost four years after the events. DeBusk was found guilty of discrimination and was recommended for disciplinary action and remedial training. She was, however, a political appointee and left government shortly after the 2000 election. Two men who were set to be selected had DeBusk not intervened were denied the promotions they should have received. The EEOC found that Straughn was less qualified than the two who would have been selected and thus he was not promoted, though he was awarded attorney fees and costs. In addition, Commerce was required by the EEOC to post a notice that it had "discriminated against an employee based on sex when gender was impermissibly allowed to play a role in a competitive promotion decision."

This unfortunate incident is not unique. Here, the honesty and courage of selection officials Fontana, Menefee and Sopko brought the truth to light, but in many cases, people would be too afraid of incurring an assistant secretary's wrath. Many culprits thus are never caught. In fact, Fontana has filed a discrimination complaint of her own, charging that she was "frozen out" of subsequent managerial activities by DeBusk's supporters. In addition, victims often are dissuaded from filing complaints by the draining and costly investigation and appeals process. Others are thwarted by the tight 45-day deadline for filing the complaint with their agency's EEO office.

The Straughn case delivers one clear message. When the quest to achieve a more diverse workforce spills over into the nitty-gritty of a selection process, discrimination can be a dangerous consequence.