Government as Employer

The Federal Government is the Nation's largest employer. Almost 10percent of the country's work force, about 6 million persons, are on theFederal payroll: 2.3 million civilian employees; * 2.48 million full-timemembers of the Armed Forces; 2 and 1.08 million part-time membersof the Armed Forces, serving in the Active Reserves or in the NationalGuard. 3 The total annual payroll exceeds $24 billion, including over$13.5 billion for civilian employment, 4 and almost $11 billion for themilitary. 6 Obviously the Federal Government's impact on the nationaleconomy and overall employment is enormous. By adopting and enforcing a policy of equal employment opportunity, it may open up employment and training opportunities for minority group members. In sodoing and by setting an example for the rest of the Nation, it may alsoaffect employment opportunities throughout the country.

1. FEDERAL CIVILIAN EMPLOYMENT

   As mentioned in chapter 2, attempts of the Federal Government toeliminate discrimination in Federal employment originated with theCivil Service Act of 1883° and culminated in the proscription of discrimination based on race, creed, or color in the Ramspeck Act of 19407Administrative machinery to implement this policy had its inception inthe first FEPG (1941), which was concerned not only with equalityof opportunity in Government employment but with effectuating thenational policy of equal employment opportunity. The demise of thesecond FEPC in 1946, following enactment of the Russell Amendment, 8

   saw the end, at least temporarily, of this overall, uniform administrative

   approach. From that date until March 6, 1961, when PresidentKennedy established the Committee on Equal Employment Opportunity, 9 separate machinery was created to effectuate the Federal policyin Government employment.

   No discussion of the problems involved in the implementation of thispolicy can be complete without a consideration of section 213 of the

   Independent Offices Appropriation Act, I945, 10 commonly known asthe Russell Amendment. This provided that no funds could be usedto pay the expenses of any agency, including those established byExecutive order, after it had been in existence for more than i yearunless Congress had specifically appropriated funds for it. Moreover,any such agency was to be considered as having been in existence duringthe existence of any other agency established by a prior Executive order"if the principal functions of both of such agencies. . . . [were] substantially the same or similar." n

   These provisions were aimed directly at the FEPC, which had been

   operating with funds drawn from the President's emergency fund, thusobviating the necessity of congressional approval. 12 Thereafter, withoutspecific congressional appropriations, the Committee could not continueto function. 13 In the following year, however, in order to clarify theeffect of the Russell Amendment on interdepartmental committees, 14

   section 214 of the Independent Offices Appropriation Act, IQ46, 15 was

   passed:

   Hereafter appropriations of the executive departments and independent establishments of the Government shall be available forthe expenses of committees, boards, or other interagency groupsengaged in authorized activities of common interest to such departments and establishments and composed in whole or in part ofrepresentatives thereof who receive no additional compensation by virtue of such membership: Provided, That employees of suchdepartments and establishments rendering service for such committees, boards, or other groups, other than as representatives, shall receive no additional compensation by virtue of such service.

   This is the framework within which all new machinery to implementa national equal-job-opportunity policy has been established. In viewof the inability of successive administrations to obtain statutory authority 16 or specific appropriations 17 for machinery to implement this policy,all such instrumentalities since 194.6 have been created by Executiveorder and2014to avoid the barrier of the Russell Amendment2014all but onehave been established as interagency committees. Apparently there hasbeen some concern about limiting the functions of these agencies to makethem narrower than2014and therefore not "substantially the same or similar" to2014the functions performed by the FEPC. It would appear, however, that if interagency committees perform functions of common interest to all the agencies represented, if these activities are "authorized inthe basic law, or in the appropriation act," 18 and if no additional fundsare required, they are outside the scope of the Russell Amendment. 19

   The fact that they perform functions "substantially the same or similar"

   to those of the former FEPC would therefore appear to be irrelevant.

   20

   The only machinery established since 1946 which was not created asan "interagency committee" was President Truman's Fair EmploymentBoard, created by Executive Order 9980 in 1948 as part of the CivilService Commission. Since it could and did use funds and personnelof the Commission, it did not require any separate appropriation.President Eisenhower's Committee on Government Employment Policy,which replaced the Fair Employment Board in 1955, was established asan independent, interdepartmental committee within the meaning ofsection 214, quoted above. No additional funds were required for theCommittee, as its entire budget (never more than $40,000 a year), itspersonnel, 20 and its office space were furnished by the Civil ServiceCommission.

   COMMITTEE ON GOVERNMENTALEMPLOYMENT POLICY

   In studying and evaluating Federal machinery established to provideequality of opportunity in Federal civilian employment, this Commissionhas concerned itself primarily with the functions and operations of President Eisenhower's Committee on Government Employment Policy andto a limited extent with its successor agency, the Committee on EqualEmployment Opportunity. The latter, created by President Kennedy'sExecutive Order 10925, effective April 6, 1961, has not been in operation long enough to permit any adequate evaluation of its effectiveness.

   Executive Order 10590, issued by President Eisenhower on January18, 1955, declared it to be the policy of the U.S. Government "that equalopportunity be afforded all qualified persons consistent with law, foremployment in the Federal Government; and . . . this policy necessarily excludes and prohibits discrimination against any employee orapplicant for employment in the Federal Government because of race,color, religion, or national origin. . . ." 21 To implement this policy, theorder, as later amended, 22 made two main provisions: it placed directresponsibility for the nondiscrimination program, including final responsibility for settling complaints of discrimination, in the head of eachexecutive department or agency; and it created the Committee on Government Employment Policy, a seven-member group composed of representatives of Government and the public, to advise and assist the executive agencies in meeting their responsibilities under the order. In short,the Committee was created to provide "leadership, advice, guidance, andrecommendations." 23 More specifically, it was required to 24 2014

   (a) Report to the President periodically concerning the progress of the nondiscrimination program, and make necessary or

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   desirable recommendations for assuring uniformity in personnelpractices.

   (b) Consult with and advise departments and agencies concerning their procedures and responsibilities under the order.

   (c) Consult -with and advise the Civil Service Commission withrespect to civil-service regulations relating to nondiscriminationpractices.

   (d) Review cases of alleged discrimination referred to it underthe order, and render advisory opinions on the disposition of suchcases to the heads of the departments and agencies concerned.

   (0) Make such inquiries and investigations as may be necessaryto discharge its responsibilities.

   As "the first Committee created at White House level to assist theFederal Establishment in putting its own house in order," 2B the Committee, responsible only to the President, enjoyed considerable prestige.Although its staff was small2014only three persons2014it had available theresources of all the executive agencies of the Federal Government. Earlyin its existence, the Committee decided to concentrate on two majorobjectives: x

   1i) To provide simple and readily accessible channels for investigation and adjudication of any complaint of discrimination onaccount of race, color, religion, or national origin made by anyGovernment employee, or applicant for Government employment.

   (2) To inaugurate a long-range program of education and persuasion designed to eliminate practices of discrimination and toinvoke policies of equal treatment throughout the Government.

   Complaints of discrimination

   In addition to cases filed with the Committee for full review and advisory opinion, either upon the request of the complainant or on thepart of the agency concerned, the Committee (pursuant to its regulations) received and examined reports of all cases after they had beenclosed. It was therefore able to assist executive agencies not only byrendering advisory opinions but by advising as to the manner in whichinvestigative methods and complaint procedures might be improved.

   To make the complaint process as effective as possible, the Committee developed filing and processing procedures 2T and, by requiringthe posting of agency and Committee regulations and procedures, undertook a campaign to inform all employees and applicants for employment of the nondiscrimination policy and of the procedures for filingcomplaints. 28

   The Executive order required the head of each department and

   agency to "designate an ... Employment Policy Officer, and . . .

   22

   such Deputy Employment Policy Officers as may be necessary .. . toeffectively carry out the policy of this order." 29 These...