The Glass Ceiling Initiative Report - a Closer Look

"It should be pointed out that none of the nine companies in the pilot study has been cited for discrimination at the upper-levels of their workforces. That's the good news."

Thus the Department of Labor introduces the "Findings" section of their Report on the Glass Ceiling Initiative. The Initiative, primarily compliance reviews of a sample of nine federal contractors, was begun under former-Secretary Elizabeth Dole. Completed months earlier this year, it has finally been released, at least to a degree, by Secretary Lynn Martin. We have enclosed a copy of the Report for our subscribers (a Labor Department spokeswoman told us they had been "overwhelmed" by requests for this Report and are currently out of copies.)

We think everyone concerned about the glass ceiling should read the Labor Department's Report -- very carefully.

Nine pages after the cheery introduction, the Report counters its "good news" with the sobering admission that "The OFCCP* (Office of Federal Compliance Programs) initially anticipated concentrating on the executive suite and the highest levels of management. As the pilot project progressed, however, the reviewing team discovered that much of the investigative questioning and many areas of prospective analysis became irrelevant because there were no minorities and women at these levels. To put it plainly, the glass ceiling existed at a much lower level than first thought ... All of the companies reviewed had a level beyond which few minorities and women had either advanced or been recruited, and minorities tended to be found at lower levels of management than women."

When we asked investigators who had actually participated in these specially-designed compliance reviews whether they had not found any overt discrimination, or simply not cited it, as the Report carefully states, we encountered a peculiar and consistent coyness. We were instructed in the difference between a finding of failure to comply with good faith affirmative action efforts (which the Report emphasizes) and citation for overt discrimination, which is a much more serious matter, and can result in denial of a federal contract. We asked again: did you simply not find any overt discrimination, or just not cite it? We received several lengthy descriptions of how terribly complicated the legal definition of discrimination is. We asked again; we heard repeatedly: "The Secretary did not cite any of the nine companies for discrimination at upper-levels of employment."

We grew curious about the reaction to our question. One investigator expressed extreme indignation at our persistent questioning and the "implication that we would turn our backs on discrimination." We tried to explain that we meant no offense, but that all of our advisors and sources who had read the Report seemed doubtful that such pervasive problems as described by the investigators could co-exist with a finding of "no discrimination". Also, we were perplexed why the question didn't have a simple "yes" or "no" answer.

We think we finally got our answer: the operative word in the "good news" statement is "upper-levels". Jude Sotherland, a former Public Affairs Staffer in the Reagan White House who is currently Executive Assistant to the Secretary of Labor, emphatically told us, after six repetitions of the question, "All the Report says is the investigators did not find any overt discrimination at upper-levels" (Emphasis on "upper").

Now that we have re-read the document a few times, we're not surprised: to quote the Report again "there were no minorities and women at these levels." We are concerned, however, that the Report does not include discussion of overt discrimination found at lower and middle management levels, since this is where the Report demonstrates that the glass ceiling begins.

In addition to the basic finding that the glass ceiling exists, and at lower levels than previously thought, the investigators also reported:

• Minorities have plateaued at lower-levels of the workforce than women.
• Monitoring for equal access and opportunity, especially as managers move up the corporate ladder to senior management levels where important decisions are made, was almost never considered a corporate responsibility ...
• Appraisal and total compensation systems ... were not monitored.
• Placement patterns were consistent with research data [showing no or few women and minorities in upper-levels of management].
• There was a general lack of adequate records.

Some readers of the Report have been startled by this admission that there "was an inadequate assembly of records [by most pilot study companies] regarding EEOAA responsibilities concerning recruitment, employment and development activities for management-type positions." The report devotes exactly two paragraphs to this, and nothing is suggested anywhere to remedy this situation.

Perhaps the Report gives short shrift to "inadequate recordkeeping" because it is actually the Department's own rules that create the problem. Robert Davis, Solicitor of Labor under Secretary Dole, stated the problem succinctly in a speech he gave to the American Bar Association last year: "Currently, the regulations do not impose a general requirement to retain relevant records ... [Department rules] do not require employers to create any particular records, but if they do create records, they must preserve those records for a period of six months or until the final disposition of a pending charge or proceeding." Davis went on to say that the department was reconsidering the "Title VII formulation that an employer must preserve the records it makes, but that it need not make any particular records". He also questioned whether employers "have an adequate incentive to retain records."

Given the findings of the Glass Ceiling Initiative Report, it seems safe to conclude that companies do not have adequate incentive, even with the extreme attention the Department paid to guaranteeing the pilot companies anonymity and complete confidentiality. At least one reader of the report, Attorney James Guziak of Orange, California, has told DataLine that he intends to file a Freedom of Information Act Request for all of the Department' research, based on his concern that the report may have inadequately detailed the actual findings of the investigators and could provide important data for "glass ceiling" sex or race discrimination cases.

Even without the Department's extra promises of confidentiality, however, Federal contracts are well-protected according to Robert Davis, by the Department's FOIA guidelines, which "provide contractors with a number of procedural safeguards against unwarranted disclosure. "This finding pairs with an "artificial barrier" also identified by the investigators: that "EEO Directors ... are not generally included in the recruitment process for mid- and upper-level positions. Often, they do not even know who was being considered for these positions until after they have been filled."

The report does not say whether the failure to ensure that middle and upper-level managers understand and implement EEO requirements was a violation of any OFCCP regulations. They do say that "all deficiencies, whether glass ceiling or otherwise, found at the corporations were identified and remedied" and further, that "departmental staff has worked with these pilot companies to ensure that equal employment and access issues are ... integrated throughout the workplace in all aspects of employment ..." Jude Sotherland, Executive Assistant to Secretary Martin, told us that the OFCCP is currently revising its guidelines for compliance reviews to incorporate the pilot investigators' processes and findings; these guidelines will be available not only to Federal contractors but also to any employer or other interested parties. We look forward to seeing how the issues of EEO Director involvement, and corporate ownership of EEO principles, are addressed.

According to the Report, "Almost all of the companies had few, if any, minorities and women at the highest levels of management. When they were present, they were almost always in staff functions. Moreover, the preponderance of minorities and women in the feeder positions for mid- and upper-level management positions also were in staff functions." Although the report claims to have gained "insights into the causes of the glass ceiling", no explanation is offered for the very pervasive "ghettoizing" of women and minorities into staff functions, especially Human Resources and Corporate Communications/PR. The report mentions only "one theory often cited" -- that women do not possess leadership qualities -- and then supposedly refutes this with a study by an executive search firm.

The report also says that companies "were asked to audit their placement patterns to ensure that they were non- discriminatory," but never says what the results of these audits were. Given the frequency with which women and minorities complain that they are shunted into these ghettoes, and the regularity with which the complaint is part of race and sex discrimination lawsuits, we regret the Department placed so little emphasis on this particular "finding" - or at least, reported so little about it.

The Report refers to evidence by other researchers that "raters evaluate job performance of blacks less favorably than the job performance of whites", but fails to mention the Department's own extensive research that shows the pay gap that exists between men and women at all levels actually increases as management level increases. Robert Davis referred to data that showed that although women earn 70 cents for each dollar that men earn overall, "women in executive, administrative, and managerial occupations were earning only 60 per cent of the salaries earned by men in similar occupations". Davis implied that these statistics were critical to the decision to begin the Glass Ceiling Initiative.

According to the Report, "all companies were aware that they had to monitor salary data for EEO to ensure non- discrimination". The Report also tells us that "companies were cited for lack of oversight of other forms of reward and compensation, and were required to ensure that all forms of compensation were being distributed in a non-discriminatory fashion". With this, the discussion of the "finding" is closed, and the reader is left hanging. Does this mean that even though no company "reviewed" their total compensation packages, nonetheless, no overt discrimination was found? Or, does it mean that these nine companies, despite their oversights, somehow escape the striking salary differentials found between white men and women or minorities in countless other studies? Were deficiencies in monitoring, reviewing, and distributing salary and other compensation found? If so, how bad were they? How were they remedied? Remember, the Report tells us that "All deficiencies...were identified and remedied". (See page 12 of the Report.)

In addition to the basic findings discussed above, the Report also describes "artificial barriers" that "can individually hinder the advancement of qualified women and minorities." These barriers include various recruitment practices and the failure to include women and minorities in "corporate developmental exercise" such as key rotational assignments, mentoring, and training.

DataLine was particularly interested in what the investigators had to say about the pilot companies' use of search firms, because of our personal knowledge of this area, and also because last year, this was one of the areas identified by Robert Davis that would present "significant legal issues". Davis's words generated a strong reaction:

Clearly, we would seek to hold any contractor liable ... who gave discriminatory instructions to a head hunter. Even short of issuing discriminatory instructions, and thus running afoul of the prohibitions against discrimination, however, a contractor will not be meeting its affirmative action requirements if it uses a head hunter who routinely refers only white males to the contractor. There may also be instances in which OFCCP would seek to hold the search firm, itself, liable for acts of discrimination ...

The Report states that the companies not only failed to make their search firms aware of Federal contractors' EEO requirements, but also, "in those instances where the search firm sent forward a slate with an absence of minorities and women, the contractors did not demonstrate any good faith efforts to broaden the pool of candidates."

We asked Department spokespeople and several of the actual investigators whether they had gone beyond the findings reported to look at the search firms' underlying data; for example, when a search firm presented an all-white-men slate of candidates to a company, did the investigators seek to determine what the sample looked like from which the slate was chosen? We're not completely sure, but we think the answer was "no".

Given the reliance of the Report on "studies" by large search firms (four out of nine studies cited in the Report were provided by search firms), we were also curious about whether search firms had participated during the "blueprinting" stage of the Glass Ceiling Initiative, when investigators met with a variety of business leaders to help the Department understand all of the issues that might affect the investigation. We did not get an answer to this question. Jude Sotherland did speak at length about the investigators' awareness of the problems that may exist regarding Federal contractors' use of search firms, and then ended by saying that all of her previous statements were off the record. She did, however, give explicit permission to quote the following: "In the course of creating the blueprint for the pilot study, we heard anecdotally from women that they could advance to a certain level and beyond that, search firms were brought in, and then white males came in, and the women stopped advancing." Ms. Sotherland also told us that her "hesitancy with regard to search firms is what the legal nexus would be, what our legal standing would be."

Another senior investigator told us that they examined the role of search firms during the internal education ("Blueprinting") process, but not in the pilot study compliance reviews themselves. We asked whether the investigators had become aware of overt discrimination by search firms on behalf of Federal contractors; the answer was an emphatic "No comment."

Another Department spokesperson told us that OFFCP regulations are clear: Federal contractors are responsible for the EEO compliance of their recruiting firms, whether or not the recruiting firms are Federal subcontractors. This, plus what the investigators did know -- or should have known -- about how search firms contribute to the glass ceiling, makes this part of the Report so untrustworthy that it undermines the integrity of the entire Report. Everyone concerned about the glass ceiling should insist that Secretary Martin disclose the findings of the "blueprinting" process and include search firms in OFCCP compliance reviews.