United States General Accounting Office

GAO Report to the Honorable Eddie Bernice

Johnson, House of Representatives

June 2003
EQUAL
EMPLOYMENT
OPPORTUNITY
Hiring, Promotion, and
Discipline Processes
at DEA

GAO-03-413
a
 June 2003

EQUAL EMPLOYMENT OPPORTUNITY

Hiring, Promotion, and Discipline

Highlights of GAO-03-413, a report to the Processes at DEA
Honorable Eddie Bernice Johnson, House
of Representatives

A 1981 U.S. District Court decision During the October 1997 through March 2002 period, African American,
found that the Drug Enforcement Hispanic, and white applicants to be special agents passed DEA’s medical
Administration (DEA) had requirements and interview process at about the same rates. However,
discriminated against African African American and Hispanic applicants had lower passing rates on (1) the
American special agents in a test of an applicant’s ability to recall and write about a video of a drug-
number of personnel practices.
related enforcement action and (2) suitability requirements measured
Over the years, the plaintiffs and
DEA had agreed to remedies in through a background investigation and other tests. DEA’s hiring
many of these areas. However, procedures are based on criteria in federal regulations, professional
minority representatives continued standards, and standards established by subject matter experts. However,
to raise issues in three areas— DEA had not studied its hiring requirements to see why its procedures
hiring, promotion, and discipline. resulted in different selection rates and whether they could be modified to
GAO was asked to examine DEA’s reduce differences while maintaining the high standards necessary for
current processes for hiring, special agents.
promoting, and disciplining special
agents, and provide information There were no statistically significant differences in promotion rates among
about racial, ethnicity, and gender the various racial, ethnic, and gender groups during fiscal years 1997 through
differences in these three areas. 2001. DEA has a rigorous and validated competency-based process that uses
job simulations to assess capabilities at the target grade level. However, the
job-relatedness of a key step involving recommending special agents for
GAO recommendations to DEA promotion had not been established and our analysis showed that African
include American and Hispanic special agents were recommended for promotion at
• initiating a process to monitor significantly lower rates. Despite differences in recommendation rates,
hiring results to identify DEA’s promotion decisions mirrored the race, ethnic, and gender makeup of
differences in selection rates the agency’s special agent workforce. Additionally, the agency, working
among groups, determine why with a diverse panel of special agents, subsequently developed a revised
they occur, and what, if recommendation process. At the time of GAO’s review, DEA and the African
anything, can be done to American representatives were involved in mediation to reach final
reduce the differences while agreement.
maintaining high standards
and
• expanding the study of
Disciplinary data for fiscal years 1997 to 2001 showed that the proportion of
disciplinary actions taken African American, Hispanic, and women special agents disciplined for
against African American misconduct was significantly higher than their representation in the DEA
versus white special agents to special agent workforce. These higher rates reflect that African Americans,
determine whether discipline Hispanics, and women had a significantly higher percentage of allegations of
is administered fairly to all misconduct lodged against them and that a significantly higher percentage of
racial, ethnic, and gender these allegations were substantiated by investigations and resulted in
groups of special agents. disciplinary action. A recent study by an outside contractor found DEA’s
In commenting on this report, the disciplinary process to be fair and nondiscriminatory, but that study only
Acting Administrator of DEA considered African Americans and whites and not women or other minority
agreed with our recommendations groups.
and listed a number of actions
being taken to implement them.
www.gao.gov/cgi-bin/getrpt?GAO-03-413.

To view the full report, including the scope

and methodology, click on the link above.
For more information, contact Victor S.
Rezendes at (202) 512-6808.
Contents

Letter 1
Results in Brief 2
Background 5
The Diversity of DEA’s Special Agent Workforce 10
A Higher Proportion of Minority Applicants Did Not Meet Hiring
Requirements 15
No Statistically Significant Differences in Promotion Rates 25
DEA’s Discipline Process Has Been Found to Be
Nondiscriminatory 34
Employee Views on Promotion and Discipline 40
Conclusions 42
Recommendations for Executive Action 44
Agency Comments and Our Evaluation 44

Appendixes
Appendix I: Objectives, Scope, and Methodology 47
DEA Special Agent Workforce Diversity 47
DEA’s Hiring, Promotion, and Discipline Processes 48
Appendix II: Physical Task Test Minimum Requirements 51
Appendix III: Competencies in Assessing GS-13 and GS-14 Special Agents
for Promotion 52
Performance Rating Competencies for
GS-13 and GS-14 Special Agents 52
Competencies Measured by Assessment Center Job Simulations 52
Interim Special Agent in Charge/Office Head Recommendation
Process 53
Proposed SAC/Office Head Recommendation Process 54
Appendix IV: Comments from the Drug Enforcement Administration 55

Tables Table 1: Demographic Distribution of the Federal Workforce and

Criminal Investigators (Special Agents) in DEA,
Governmentwide, and the Nonfederal Workforce 11
Table 2: Demographics of DEA’s Special Agent Workforce,
1980-2002 12
Table 3: Distribution of DEA Special Agents in Nonsupervisory,
Supervisory, and SES Positions by EEO Group, September
2002 13

Page i GAO-03-413 EEO Issues at DEA

Contents

Table 4: Demographic Profile of Applicants under BA-98-01 and

BA-20-00, October 15, 1997, to March 31, 2002 16
Table 5: Percentage of Applicants Meeting Minimum Requirements
under BA-98-01 and BA-20-00, October 15, 1997, to
March 31, 2002 17
Table 6: Percentage of Applicants Passing Written Assessment
under BA-98-01 and BA-20-00, October 15, 1997, to
March 31, 2002 18
Table 7: Applicant Interview Passing Rates under BA-98-01 and
BA-20-00, October 15, 1997, to March 31, 2002 19
Table 8: Applicant Medical Examination Passing Rates under
BA-98-01 and BA-20-00, October 15, 1997, to
March 31, 2002 19
Table 9: Percentage of Applicants Passing the Physical Task Test
under BA-98-01 and BA-20-00, October 15, 1997, to
March 31, 2002 20
Table 10: Percentage of Applicants Found Suitable under BA-98-01
and BA-20-00, October 15, 1997, to March 31, 2002 22
Table 11: Percentage of Applicants Found Suitable by the 1811
Hiring Panel, September 29, 2000, to May 7, 2002 23
Table 12: Overall Selection Rates for Applicants for Whom DEA
Made Hiring Eligibility Determinations under BA-98-01 and
BA-20-00, by EEO Group, October 15, 1997, to
March 31, 2002 24
Table 13: Demographic Profile of Applicants Who Met Minimum
Requirements and Applicants Hired under BA-98-01 and
BA-20-00, October 15, 1997, to March 31, 2002 24
Table 14: Special Agents Participating in the SAPP, 1997-2001 26
Table 15: Average SAPP Scores, 1997-2001 30
Table 16: Frequency of Applicants Appearing on Best-Qualified Lists
Being Recommended by SACs, 2000-01 32
Table 17: Individuals on at Least One Best-Qualified List from Which
Promotions Were Made and Individuals Selected for
Promotion, by EEO Group, Fiscal Years 1997-2001 34
Table 18: Special Agents Disciplined Compared with Special Agent
Population, by EEO Group, Fiscal Years 1997-2001 36
Table 19: Distribution of Cases of Alleged Misconduct Involving
Special Agents, by EEO Group, Compared with Workforce
Representation, Fiscal Years 1997-2001 37
Table 20: Cases of Alleged Misconduct Involving Special Agents That
Resulted in Disciplinary Action, by EEO Group, Fiscal
Years 1997-2001 37

Page ii GAO-03-413 EEO Issues at DEA

Contents

Table 21: DEA Physical Task Test Minimum Performance

Requirements 51
Table 22: Performance Rating Competencies for GS-13 and GS-14
Special Agents 52
Table 23: Competencies Measured by Assessment Center Job
Simulations in 2001 53

Abbreviations

ARTS Agent Recruiting and Tracking System

EEO equal employment opportunity
EEOC Equal Employment Opportunity Commission
GS General Schedule
DEA Drug Enforcement Administration
MSPB Merit Systems Protection Board
OPM Office of Personnel Management
OPR Office of Professional Responsibility
SAC Special Agent in Charge
SAPP Special Agent Promotion Program
SES senior executive service

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Page iii GAO-03-413 EEO Issues at DEA

A
United States General Accounting Office
Washington, D.C. 20548

June 10, 2003 Lert

The Honorable Eddie Bernice Johnson

House of Representatives

Dear Ms. Johnson:

In 1981, ruling on a class action racial discrimination lawsuit brought by

African American special agents, a U.S. district court found that the Drug
Enforcement Administration (DEA)1 had discriminated against the agents
in a variety of personnel practices. Some 20 years have passed since the
initial decision, and not all areas covered by the court’s orders have been
finalized, particularly in regard to promotions. In your role as Chair of the
Congressional Black Caucus, minority representatives of DEA’s special
agents continued to raise issues with you about some of the personnel
practices at DEA. Based on discussions with your office, we agreed to
(1) develop information on the diversity of DEA’s special agent workforce
and (2) examine the processes DEA has put in place to provide for fair and
nondiscriminatory hiring, promoting, and disciplining of special agents and
provide information about racial, ethnic, and gender differences in those
three areas.

With regard to the diversity of DEA’s special agent workforce, we

developed information by race, ethnicity, and gender for each pay grade
level. To examine DEA’s processes for hiring, promoting, and disciplining
special agents, we reviewed policies and procedures and discussed them
with knowledgeable officials and representatives of groups representing
minority special agents. To identify the results that have been achieved, we
analyzed data by race, ethnicity, and gender generally for fiscal years 1997
through 2001, the 5 most recent fiscal years for which data were available,
with regard to how applicants fared at each step of DEA’s hiring process,
promotions of special agents to the General Schedule (GS) grade 14 and 15
levels, and disciplinary actions taken. Our analyses were not designed to
prove or disprove discrimination; rather, they were designed to provide
information about race, ethnicity, and gender differences in personnel
actions. In analyzing hiring actions, we used the 80 percent rule set out in
the federal government’s Uniform Guidelines on Employee Selection

1
DEA, an agency within the Department of Justice, enforces the nation’s controlled
substances laws and regulations in the United States and worldwide. DEA has 21 domestic
field divisions with more than 200 offices and 79 foreign field offices in 50 countries.

Page 1 GAO-03-413 EEO Issues at DEA

 Procedures. Under the 80 percent rule, a selection rate for a racial, ethnic,
or gender group that is less than 80 percent of the selection rate for the
group with the highest rate is considered a substantially different rate of
selection that usually requires an employer to study the job relatedness of
selection procedures. To analyze differences in promotion and disciplinary
actions, we used standard statistical techniques. We did our work from
September 2001 through February 2003 in accordance with generally
accepted government auditing standards. Further details about our
methodology are discussed in appendix I.

Results in Brief The diversity of DEA’s special agent (criminal investigator) workforce was
below overall government workforce percentages but generally
comparable with the governmentwide population of criminal investigators,
except for women. In September 2002, whites made up 80.3 percent,
African Americans 8.2 percent, Hispanics 8.8 percent, Asian/Pacific
Islanders 2.2 percent, and Native Americans 0.5 percent of DEA’s special
agents. These percentages compared with governmentwide criminal
investigator levels of 80.3 percent white, 7.1 percent African American, 8.9
percent Hispanic, 2.7 percent Asian/Pacific Islanders, and 1 percent Native
American. Women were 8.3 percent of special agents in DEA but 16.4
percent of criminal investigators governmentwide. Minority representation
in DEA’s special agent workforce resembles an inverted pyramid, with
proportional representation of minority special agents in senior executive
service (SES) and supervisory special agent positions higher than in
nonsupervisory positions. In September 2002, minorities represented 36.7
percent of SES special agents, 23.2 percent of supervisory special agents,
and 18.4 percent of the nonsupervisory agents. Women, on the other hand,
were 8.8 percent of the nonsupervisory special agents, which was more
than their representation among supervisory special agents (6.6 percent)
but less than their representation among SES special agents (10.2 percent).
Because of the relatively low representation of minorities and women in
the lower ranks of special agents, DEA could face problems in enhancing,
or even maintaining, diversity in the upper ranks in the near future as
attrition occurs, especially if DEA experiences a high level of retirements
like that expected governmentwide. However, DEA does not have a clear
picture of future workforce trends because the agency has not prepared a
workforce analysis that takes into account the demographics of the
workforce, including age, grade, retirement eligibility, and expected
retirements over the next 5-year or longer period.

Page 2 GAO-03-413 EEO Issues at DEA

Our analysis of DEA’s hiring decisions showed that a higher proportion of
minority applicants did not meet the requirements to become a special
agent at some steps in the hiring process. We found that in applying the 80
percent rule, African American men, Hispanic men, and Hispanic women
had substantially lower passing rates on the written test intended to
measure the ability to observe and recall details and write. In addition,
African Americans (men and women) had substantially lower rates of being
found suitable for hiring as a special agent, based on the results of
background investigations, psychological evaluations, and polygraph tests.
Overall, DEA hired 13.7 percent of African American applicants, 15.8
percent of Hispanic applicants, and 22.9 percent of white applicants. The
proportion of white applicants hired was substantially higher than that of
the two minority groups. The Uniform Guidelines require employers to
study the job-relatedness of selection procedures when there are
substantial differences in the selection rate for any race, ethnic, and gender
group. Although DEA’s hiring procedures are based on criteria in federal
regulations, professional standards, or standards established by subject
matter experts, the agency had not studied why its procedures resulted in
different selection rates and whether they could be modified to reduce
differences while maintaining high standards.

Our analysis showed no statistically significant differences in promotion

rates among the various racial, ethnic, and gender groups. However, issues
regarding promotions of African Americans to GS-14 and GS-15 special
agent positions remain in litigation because the court found in 1999 that
DEA’s promotion process did not fully comply with title VII of the Civil
Rights Act. Although DEA has a validated process to assess special agents’
promotion potential, the 1999 court decision found that a subsequent step
involving recommendations to the selecting authority by the office heads
with vacancies of specific special agents on the best-qualified lists had
resulted in an underrepresentation of African American special agents
compared with whites, and that this step had not been validated. Interim
measures modifying the recommendation process had not eliminated this
situation. Although DEA’s monitoring and reporting of promotion process
results gave particular attention to African American special agents, our
analysis also showed that Hispanics were recommended at statistically
significant lower rates than white special agents, particularly applicants for
GS-14 positions. Although DEA has developed a recommendation process,
the agency and the plaintiffs need to resolve issues about implementation
and procedures for monitoring the results before the proposed process can
be put in place. In addition, the court must approve the process.

Page 3 GAO-03-413 EEO Issues at DEA

Our analysis of disciplinary data for fiscal years 1997 through 2001 showed
that the proportion of African American, Hispanic, and women special
agents disciplined for misconduct was substantially higher than their
representation in the DEA special agent workforce and that this difference
was statistically significant. During fiscal years 1997 through 2001, African
Americans made up 8.3 percent of the special agent workforce but
accounted for about 16 percent of the agents disciplined. Similarly,
Hispanics, while making up 8.9 percent of the special agent workforce
during the same time period, accounted for about 15 percent of agents
disciplined. Women, who made up 7.8 percent of special agents during
fiscal years 1997 through 2001, accounted for about 13 percent of agents
disciplined. These higher rates reflect that African American, Hispanic, and
women special agents had a proportionately higher number of allegations
of misconduct lodged against them and that a higher proportion of these
allegations were substantiated by investigations and resulted in
disciplinary actions. DEA does not know why these differences exist nor
does any study offer a reason for them. However, the results of two studies
by outside contractors, approved by an oversight group and which we
found methodologically sound, found DEA’s disciplinary process to be fair
and nondiscriminatory. The most recent of these studies, however,
compared only disciplinary actions of African American and white special
agents. Disciplinary actions related to other minorities and women have
not been studied since 1986.

Although there were no statistically significant differences in the

promotion rates among the racial, ethnic, and gender groups and studies
found DEA’s disciplinary process to be fair and nondiscriminatory, minority
and women special agents perceived that these processes were not fair and
had a disparate effect on minorities. The perceptions may have been driven
in part by a lack of data and other information because DEA did not widely
share analyses of its promotion and discipline processes with the special
agent workforce. Sharing such data could help special agents formulate
informed views about the fairness and equity of the promotion and
discipline processes.

We recommend that DEA (1) prepare a workforce analysis that takes into
account expected attrition to guide DEA’s recruiting and hiring, (2) initiate
a process to monitor hiring process results, (3) monitor promotion
recommendation rates among the racial, ethnic, and gender groups,
(4) expand the study of disciplinary actions to include all racial, ethnic, and
gender groups, and (5) share information about promotion and discipline
processes with its special agent workforce.

Page 4 GAO-03-413 EEO Issues at DEA

 In commenting on this report, the Acting Administrator of DEA agreed with
our recommendations and listed a number of actions DEA was taking to
implement them.

Background Under title VII of the Civil Rights Act of 1964, as amended,2 it is unlawful for
employers to discriminate against employees or job applicants on the basis
of race, color, religion, sex, or national origin. Other civil rights statutes
prohibit discrimination based on age or disability.3 Under these laws, it is
illegal to discriminate in any aspect of the terms and conditions of
employment, including hiring, firing, disciplinary actions, promotion, pay
assignments, and training. In addition, for federal civilian employees,
Executive Order 13087 prohibits discrimination based on sexual
orientation and the Office of Personnel Management (OPM) has interpreted
the Civil Service Reform Act of 19784 to prohibit sexual orientation
discrimination in the federal workplace.5

Intentionally treating people differently on account of their race, color,

religion, sex, national origin, age, or disability is called “disparate
treatment.”6 Title VII prohibits not only intentional discrimination, but also
practices that have the effect of discriminating against individuals because
of their race, color, national origin, religion, or sex. Personnel policies that
are neutral on their face but have a substantially different though
unintended affect on a group are said to have a “disparate impact” or

2
42 U.S.C. §§ 2000e et seq.
3
The Age Discrimination in Employment Act of 1967 prohibits discrimination against
individuals who are 40 years of age or older (29 U.S.C. §§ 621 et seq.), the Americans with
Disabilities Act of 1990 prohibits employment discrimination against qualified individuals
with disabilities in the private sector and in state and local governments (42 U.S.C. §§ 12111
et seq.), and the Rehabilitation Act of 1973 prohibits discrimination against qualified
individuals with disabilities by the federal government (29 U.S.C. § 791).
4
5 U.S.C. 2302(b)(10).
5
An employee or applicant may not file a complaint or lawsuit based on sexual orientation
discrimination under title VII because that statute does not prohibit this form of
discrimination. However, an aggrieved person may seek redress through administrative
processes available to federal employees.
6
Although proof of disparate treatment requires a showing that an employer acted with
discriminatory motive or intent, discriminatory motive may be inferred from the mere fact
of differences in treatment.

Page 5 GAO-03-413 EEO Issues at DEA

 “adverse impact.” In general, the use of any procedure that has an adverse
impact on the hiring, promotion, or other employment actions of members
of any race, gender, or ethnic group is considered to be discriminatory
unless the procedure is shown to be job related and consistent with
business necessity.7

Uniform Guidelines on The Uniform Guidelines on Employee Selection Procedures,8 adopted in

Employee Selection 1978 by the Equal Employment Opportunity Commission (EEOC), the Civil
Service Commission (the predecessor agency to OPM), and the
Procedures departments of Justice and Labor, provide a uniform set of principles
governing use of employee selection procedures and identifying adverse
impact. The guidelines apply to tests and other selection procedures that
are used to make employment decisions, including hiring, promotion, and
discipline.

Under the guidelines, adverse impact is a substantially different rate of

selection in hiring, promotion, or other employment decisions that works
to the disadvantage of a race, ethnic, or gender group. Specifically, a
selection rate for any group that is less than 80 percent of the selection rate
for the group with the highest rate is generally regarded as evidence of
adverse impact. This is not a legal definition of discrimination; rather, it is a
rule of thumb or guideline that is a practical means of keeping an agency’s
attention on different selection rates in personnel actions and on the
procedures they use. Tests of statistical significance may be used in lieu of
the 80 percent rule. The guidelines call for adverse impact determinations
to be made for each racial, ethnic, or gender group.

When adverse impact is identified, the Uniform Guidelines generally

require employers to conduct validity studies to determine the job-
relatedness of a procedure or its business necessity. The guidelines also
call for an employer to make a reasonable effort to become aware of
suitable alternative selection procedures and methods that have as little
adverse impact as possible and to investigate those that are suitable. The
guidelines recognize validation strategies of the American Psychological
Association, and the validation provisions of the guidelines are designed to
be consistent with the generally accepted standards of the psychological

7
42 U.S.C. § 2000e-2(k).
8
29 C.F.R. Part 1607.

Page 6 GAO-03-413 EEO Issues at DEA

 profession. One approach is “content validity,” which determines whether
the selection tests and measures used are representative of the knowledge,
skills, and abilities necessary for a job.

Litigation History In February 1981, the U.S. District Court for the District of Columbia ruled
on a class action lawsuit, commonly known as the Segar case,9 finding that
DEA had discriminated against African American special agents.10 The
court found that DEA’s personnel practices had an adverse impact on
African American special agents in terms of salary, grade at entry,
supervisory evaluations, discipline, and promotions. In addition, the court
found evidence of disparate treatment in work assignments because of the
way in which DEA used African American special agents for undercover
operations. The court found no discrimination in the type of appointments
or in training of special agents, and found that allegations of harassment
and reprisal were unsubstantiated. The court did not rule on issues relating
to hiring that DEA and the plaintiff class had already settled.

The court ordered DEA to change its procedures and conduct validity
studies on those changes in order to provide for effective,
nondiscriminatory supervisory evaluation, discipline, and promotion
systems. To oversee the implementation of its orders, two groups were
established. One is called the “Working Group.” Its mission is to help
ensure that the orders of the court requiring DEA to develop and validate
nondiscriminatory personnel practices are carried out. The Working Group
is made up of three industrial psychologists—two from OPM and one
representing the plaintiff class members. The other group is called the
“Equal Employment Opportunity Monitoring Committee” or Monitoring

9
Segar v. Civiletti, 508 F. Supp. 690 (D.D.C. 1981), aff’d in relevant part subnom. Segar v.
Smith, 738 F. 2d 1249 (D.C. Cir. 1984), cert. denied subnom. Meese v. Segar, 471 U.S. 1115
(1985).
10
In 1992, DEA settled a class action lawsuit that Hispanic special agents brought alleging
discrimination in promotion and assignment practices, as well as other terms of
employment (Muniz, et al. v. Barr). Terms of the settlement, which expired in 1996,
included adding an additional SES voting member to DEA’s Career Board, DEA’s
commitment to the objective of having Hispanic special agents fill this position in
approximate proportion to their representation in the SES workforce, and putting
procedures in place regarding wiretap, undercover, and temporary assignments. In addition,
the settlement recognized that since 1984 DEA had promoted Hispanic special agents
consistent with their representation in the relevant applicant pool and that DEA was
committed to the objective of promoting Hispanics in rates roughly equal to the promotion
rates of similarly situated and qualified non-Hispanics.

Page 7 GAO-03-413 EEO Issues at DEA

Committee. Made up of eight African American special agents representing
plaintiff class members, this committee monitors DEA’s compliance with
the court’s orders. The committee also is to help facilitate informal
resolutions of disputes.

Over the years, all issues raised in the court’s findings, except with regard
to the process for promoting special agents to the GS-14 and GS-15 levels
and creating a career development program, have been resolved through
court-approved agreements between the plaintiff class and DEA. In
September 1999, the district court ruled on a motion for compliance
brought by the plaintiff class that claimed adverse impact in promotions of
African American special agents to managerial GS-14 and GS-15 positions.11
The plaintiffs argued that there were disparities in two steps of the
multistep promotion process. They alleged that one step in the process,
called the Special Agent Promotion Program (SAPP), which involves
assessing candidates’ job-related knowledge and skills through job
simulations, had an adverse impact on African Americans, thereby
decreasing their opportunities to be placed on best-qualified lists for
promotion. The plaintiffs further argued that they were adversely impacted
by another step in the process, whereby DEA senior executives—special
agents in charge (SAC) and other office heads—for the offices advertising
promotion opportunities, recommended a select few from a best qualified
candidate list to DEA’s Career Board, the head of which ultimately makes
promotion decisions. However, the plaintiffs did not claim that there was
adverse impact in the ultimate number of promotions. According to the
court decision, the plaintiffs stated that “some of the expected effect of
denying African American agents spots on the [SAC/office head lists] is not
visible in the ultimate number of promotions because the Career Board
tends to ‘overselect’ African American agents when they appear on
[SAC/office head lists], and also when the Career Board bypasses the
[SAC/office head list].”

In its ruling, the court noted that the use of the SAPP caused an adverse
impact despite its having been validated. Although the court did not
conclude that the use of the SAPP violated title VII, it ordered DEA to
implement a career development program to reduce the acknowledged

11
Segar, et al. v. Reno, et al., C.A. No. 77-81 (D.D.C. Sept. 14, 1999).

Page 8 GAO-03-413 EEO Issues at DEA

disparate impact of the SAPP.12 The court found that the process for
recommendations made by SACs and office heads did have an adverse
impact on African American special agents. In its analysis, the court said
that “the fact that some of the discriminatory effect of the use of
[SAC/office head recommendations] may not appear in ultimate hiring
decisions, because the Career Board appears to be more likely to select
African Americans when they do appear, does not excuse the use of a
discriminatory device earlier in the process.” The court concluded that the
SAC/office head recommendation process violated title VII, and enjoined
DEA from using such recommendations in making promotion decisions
until their use had been validated as job related. As a result, DEA
suspended promotions to GS-14 and GS-15 special agent positions. DEA
and the plaintiffs subsequently entered into a court-approved agreement in
January 2000 allowing DEA to temporarily use SAC/office head
recommendations for promotion decisions in accordance with certain
terms and conditions, until DEA created a permanent, validated process for
using SAC/office head recommendations.

At the time of our review, DEA, working with the plaintiff class and other
employees, had developed a recommendation process. The Working Group
approved this process, which met the requirements of content validity as
described in the Uniform Guidelines on Employee Selection Procedures.13
A diverse six-person panel of senior managers appointed by the DEA
Administrator and under the direction of an industrial psychologist
accomplished validation. In terms of job-relatedness, panel members first
individually reviewed descriptions of each competency to be assessed in
the SAC/office head recommendation process and the weight each
competency would receive. The panel then analyzed the knowledge, skills,
and abilities required for GS-14 and GS-15 special agent positions; rated
their importance to these positions; and individually linked the knowledge,

12
DEA has since developed training and career development manuals for GS-13, GS-14, and
GS-15 special agents, which the Working Group and the Equal Employment Opportunity
Monitoring Committee approved for issuance.
13
Uniform Guidelines’ standards for content validity include (1) conducting a job analysis
that identifies the important work behaviors required for successful performance of the job
in question and their relative importance, and also identifies the knowledges, skills, and
abilities used in work behaviors and the relationship between each knowledge, skill, or
ability and each work behavior, (2) describing the selection procedure, (3) providing
evidence showing that the content of the selection procedure is representative of important
aspects of performance on the job for which the candidates are to be evaluated, and
(4) considering alternative procedures.

Page 9 GAO-03-413 EEO Issues at DEA

 skills, and abilities to the competencies.14 The panel members followed the
same process for tasks required of GS-14 and GS-15 special agents. Final
agreement between the plaintiffs and DEA, particularly with regard to
procedures for monitoring the implementation of the recommendation
process, and approval by the court remained to be accomplished as of
March 2003.

The Diversity of DEA’s In September 2002, 4,481 (about 51 percent) of DEA’s 8,726 employees were
criminal investigators (in the 1811 occupational series), better known as
Special Agent special agents. Special agents conduct investigations, perform surveillance,
Workforce infiltrate drug trafficking organizations, confiscate illegal drugs, arrest
violators, collect and prepare evidence, and testify in criminal court cases.

Data from DEA showed that in September 2002, whites made up 80.3
percent, African Americans 8.2 percent, Hispanics 8.8 percent,
Asian/Pacific Islanders 2.2 percent, and Native Americans 0.5 percent of
the agency’s special agents. Women made up 8.3 percent of DEA’s special
agents. The diversity of DEA’s special agent workforce was below overall
government workforce percentages but generally comparable with the
governmentwide population of criminal investigators, except for women
whose representation was about half that of criminal investigators
governmentwide. (See table 1.)

14
The knowledge, skills, abilities, and tasks were developed by an outside contractor that
performed a job analysis of the special agent position.

Page 10 GAO-03-413 EEO Issues at DEA

Table 1: Demographic Distribution of the Federal Workforce and Criminal Investigators (Special Agents) in DEA,
Governmentwide, and the Nonfederal Workforce

Asian/Pacific African Native

Islander American Hispanic American White Women
Overall federal workforce (September 2002) 4.5% 17.6% 6.9% 2.0% 69.0% 44.0%
Criminal Investigators
DEA (September 2002) 2.2% 8.2% 8.8% 0.5% 80.3% 8.3%
Governmentwide (September 2002) 2.7% 7.1% 8.9% 1.0% 80.3% 16.4%
Nonfederal (1990 census)a 1.0% 11.4% 6.5% 0.8% 80.3% 12.0%
Source: OPM and DEA.

Note: Racial and ethnic categories include men and women; the women category includes women of
all races and ethnicities.
a
Includes accident investigators, police officers, traffic officers, police department chauffers, private
investigators, detectives, criminal investigators, and narcotics investigators.

Table 1 is not a measure of the appropriateness of DEA’s diversity but

rather a comparison of it with other law enforcement groups. The table
includes another common measure of diversity—the nonfederal law
enforcement labor force—that is derived from the decennial census and
includes individuals working in nonfederal law enforcement and security-
related occupations that OPM, EEOC, and the Department of Labor
consider comparable to the 1811 occupational series. In addition to the
governmentwide criminal investigator workforce, DEA compares its
special agent workforce to the nonfederal law enforcement labor force.
The overall minority representation in DEA’s special agent workforce is
comparable to the nonfederal law enforcement labor force, although there
is some variation in the representation of the various minority groups. DEA
has a lower representation of Native Americans and African Americans
while having a higher representation of Asian/Pacific Islanders and
Hispanics. Representation of DEA’s women special agents is lower,
compared with the nonfederal law enforcement labor force. However,
there are several limitations to these data. First, these figures are dated in
that they are based on the 1990 census. Figures based on the 2000 census
will not be available until the fall of 2003, according to an official with
OPM’s Office of Diversity. Additionally, the data are based on a wide variety
of police, detective, and public service occupations that include traffic
officers and police department chauffeurs as well as criminal investigators
and narcotics officers. A further problem with the nonfederal law
enforcement labor force data is that they do not distinguish educational
attainment of those working in comparable 1811 occupations—DEA
requires a 4-year college degree.

Page 11 GAO-03-413 EEO Issues at DEA

Workforce Trends—1980- Over the last two decades, the overall representation of minorities in DEA
2002 special agent positions hardly changed, increasing from 19.1 percent in
1980 to 19.7 percent in 2002, while the representation of women increased,
from 2.3 percent in 1980 to 8.3 percent in 2002. While minority
representation in DEA’s special agent workforce showed increases during
the 1980s, it decreased after 1990. Only Asian/Pacific Islanders continued to
increase throughout the 1980-2002 time frame. (See table 2.)

Table 2: Demographics of DEA’s Special Agent Workforce, 1980-2002

Asian/Pacific African Native Total

Yeara Islander American Hispanic American minorities White Women
1980 1.1% 7.9% 9.5% 0.6% 19.1% 80.9% 2.3%
1985 1.2% 9.2% 9.9% 0.8% 21.1% 78.9% 7.2%
1990 1.4% 10.0% 10.0% 0.8% 22.2% 77.8% 7.1%
1995 1.9% 9.5% 9.7% 0.6% 21.7% 78.3% 7.6%
2000 2.1% 8.2% 8.9% 0.6% 19.8% 80.2% 8.0%
2002 2.2% 8.2% 8.8% 0.5% 19.7% 80.3% 8.3%
Source: Fiscal years 1980-2000, OPM. Fiscal year 2002, DEA.

Note: Racial and ethnic categories include men and women; the women category includes women of
all races and ethnicities.
a
As of September for each year indicated.

When looked at from a grade standpoint, minority representation in DEA’s

special agent workforce resembles an inverted pyramid. Representation of
minority special agents in Senior Executive Service (SES) and supervisory
special agent (GS-14 and GS-15) positions is higher than in nonsupervisory
(GS-7 to GS-13) ranks. (See table 3.) In September 2002, 36.7 percent of
DEA’s SES special agents, 23.2 percent of supervisors, and 18.4 percent of
nonsupervisory special agents were members of minority groups. This was
particularly noticeable for African American and Hispanic special agents.
African Americans were 12.2 percent of SES special agents, 10.4 percent of
supervisors, and 7.5 percent of nonsupervisory special agents, while
Hispanics were 22.4 percent of SES special agents, 10 percent of
supervisors, and 8.2 percent of nonsupervisory special agents. For women,
the situation was similar in that women made up 10.2 percent of SES
special agents, which was higher than their representation in the
nonsupervisory and supervisory ranks. However, their representation in
the nonsupervisory ranks (8.8 percent) was higher than their
representation among supervisors (6.6 percent). Table 3 shows the

Page 12 GAO-03-413 EEO Issues at DEA

 distribution of DEA special agents in nonsupervisory, supervisory, and SES
positions by equal employment opportunity (EEO) group in September
2002.

Table 3: Distribution of DEA Special Agents in Nonsupervisory, Supervisory, and SES Positions by EEO Group, September 2002

Asian/Pacific African Native Total

Positions Total Islander American Hispanic American minorities White Women
SES
Number 49 0 6 11 1 18 31 5
Percentage 100% 0.0% 12.2% 22.4% 2.0% 36.7% 63.3% 10.2%
Supervisory--GS-14 and 15
Number 1,009 19 105 101 9 234 775 67
Percentage 100% 1.9% 10.4% 10.0% 0.9% 23.2% 76.8% 6.6%
Nonsupervisory--GS-7 to 13
Number 3,423 78 256 282 13 629 2794 301
Percentage 100% 2.3% 7.5% 8.2% 0.4% 18.4% 81.6% 8.8%
Source: GAO analysis of DEA data.

Note: Racial and ethnic categories include men and women; the women category includes women of
all races and ethnicities.

The implication of the inverted pyramid is that DEA could face problems in
enhancing, or even maintaining, diversity in the agency’s upper ranks in the
near future as supervisory and SES special agents retire or otherwise leave
DEA. The extent of future attrition in DEA’s upper ranks (and at all levels)
is unclear because DEA has not performed a sufficient workforce analysis.
However, if governmentwide estimates are any indication, DEA could be
facing high levels of attrition. According to our estimates, 27 percent of
federal criminal investigators on board in fiscal year 1998 were expected to
retire from fiscal year 1999 through fiscal year 2006.15

Our work in the human capital area, as discussed in A Model of Strategic

Human Capital Management, found that high-performing organizations
identify their current and future human capital needs and then create

15
U.S. General Accounting Office, Federal Employee Retirements: Expected Increase Over
the Next 5 Years Illustrates the Need for Workforce Planning, GAO-01-509 (Washington,
D.C.: Apr. 27, 2001).

Page 13 GAO-03-413 EEO Issues at DEA

strategies for filling these needs.16 In May 2001, the Office of Management
and Budget instructed each federal agency to provide information on the
demographics of its workforce, including age, grade, retirement eligibility,
and expected retirements over the next 5 years, and attrition, including
trends in recent retirements over the past 5 years. 17 Such an analysis could
guide the development of DEA’s recruiting and hiring plans and strategies
for a diverse special agent workforce. However, DEA’s workforce analysis
is limited to examining attrition data for the previous 24 months to estimate
the coming year’s hiring needs. The agency has not developed estimates on
the number of its special agents who are or will become eligible for
retirement or reach mandatory retirement age18 over the next 5 years or
longer and how this could affect the diversity of the special agent
workforce at the supervisory and SES levels and future recruiting needs.
DEA has faced challenges in meeting its special agent workforce needs. As
we will discuss later in this report, in addition to the high percentage of
applicants failing to meet DEA’s hiring standards during the 1997-2002 time
frame covered by our review, a large number of applicants dropped out of
the hiring process. DEA officials said that many of them dropped out
because of the lengthy hiring process, which, the officials said, was
averaging about 2 years. As a result, DEA was left with a relatively small
pool of candidates meeting its hiring standards from which the agency
could hire. In fact, virtually everyone who made it through all the steps in
the hiring process was offered employment. DEA officials said that it
would be preferable to have a larger pool of suitable candidates from which
the agency could select. Because the agency is concerned about having lost
quality candidates that could have enhanced the agency’s skills base and
diversity due to the long hiring process and not having a larger pool of
suitable candidates from which to choose, DEA implemented hiring
process changes in December 2002 in an attempt to reduce the time to hire
a special agent. In February 2003, the coordinator of the hiring project said
it was too early to tell the extent to which time efficiencies were being
realized.

16
U.S. General Accounting Office, A Model of Strategic Human Capital Management, GAO-
02-373SP (Washington, D.C.: Mar. 15, 2002).
17
OMB Bulletin No. 01-07, May 8, 2001.
18
Special agents can retire at any age with 25 years of service or at age 50 with 20 years of
service and reach mandatory retirement at age 57.

Page 14 GAO-03-413 EEO Issues at DEA

A Higher Proportion of DEA’s multistep recruitment and hiring process is intended to assess
whether an applicant demonstrates the competencies, physical and
Minority Applicants psychological fitness, and personal integrity and character required of a
Did Not Meet Hiring DEA special agent. Following an initial qualifications review for basic
requirements like education and citizenship, an applicant must pass a
Requirements written assessment, interview, medical examination, and physical task test.
An applicant is also subject to psychological testing, a polygraph
examination, and a background examination, which are used to make a
suitability determination.19 Using the 80 percent rule, we found that a
higher proportion of minorities, particularly African Americans and
Hispanics, did not meet the requirements to become a special agent in all
the steps in DEA’s hiring process except for the interview and medical
examination steps. Overall, minority special agent applicants were selected
at lower rates, compared with white applicants. The Uniform Guidelines
require an employer to study the job-relatedness of selection procedures
when there are substantial differences in the selection rate for any race,
ethnic, or gender group. DEA’s hiring procedures appear job related and
consistent with the Uniform Guidelines on Employee Selection
Procedures in that they are based on criteria in regulations, professional
standards, or standards established by subject matter experts. However,
the agency had not studied the effects of these procedures on minorities
and women and whether the procedures could be modified to lessen the
differences without compromising the high standards necessary to perform
the job successfully.

Qualifications Review As the first step in the special agent hiring process, DEA reviews and rates
applications20 to determine whether an applicant meets minimum
requirements for the special agent position—a bachelor’s degree and

19
Applicants meeting minimum eligibility requirements receive conditional offers of
employment. Applicants passing all phases of the hiring process receive final offers of
employment.
20
DEA solicits applicants by recruiting at colleges, including colleges with high minority and
women enrollments; placing ads in publications targeting minority audiences; and reaching
out to law enforcement organizations, professional associations (e.g., Asian American
Police Officers Association, National Organization of Black Law Enforcement Executives,
Hispanic American Police Command Officers Association, and Women in Federal Law
Enforcement), and advocacy groups (e.g., Blacks in Government). In addition, DEA’s special
agent vacancy announcement is posted on USAJOBS, the Web site for federal jobs
(http://www.usajobs.opm.gov/).

Page 15 GAO-03-413 EEO Issues at DEA

 specialized skills or substantive experience, especially in law
enforcement.21 DEA officials said that the experience requirement was a
barrier to recruiting minority and women college graduates with diversified
skills.22 As a result, in May 2000, DEA changed its policy so that applicants
with bachelor’s degrees in special skills areas—economics, accounting,
computer science/information systems, certain foreign languages,23
finance, mechanical/electrical/telecommunications engineering, or
criminal justice—would meet minimum requirements without having
additional experience.

We reviewed DEA's actions on applications received under the two most

recent vacancy announcements—BA-98-01 and BA-20-00.24 The proportion
of minority applicants increased from 27 percent for BA-98-01 to 31 percent
for BA-20-00. Similarly, the proportion of women applicants increased,
from 12.7 percent under BA-98-01 to 16.4 percent under BA-20-00. Table 4
shows the demographic distribution of applicants reviewed and rated
under both vacancy announcements. We show the results separately for
BA-98-01 and BA-20-00 because of the revised qualifications under
BA-20-00.

Table 4: Demographic Profile of Applicants under BA-98-01 and BA-20-00, October 15, 1997, to March 31, 2002

Asian/Pacific Islander African American Hispanic Native American White Total

Women Men Women Men Women Men Women Men Women Men Women Men
BA-98-01 0.4% 3.2% 2.4% 10.7% 1.3% 8.2% 0.1% 0.7% 8.5% 64.5% 12.7% 87.3%
BA-20-00 0.6% 3.6% 3.6% 11.0% 2.6% 8.4% 0.1% 0.8% 9.5% 59.8% 16.4% 83.6%
Source: GAO analysis of DEA data.

21
DEA also determines whether an applicant meets other eligibility requirements (e.g., must
be a U.S. citizen) and has no disqualifying criminal or drug use history disclosed on the
application form.
22
In rating applications, DEA had awarded points for education and experience. The number
of points awarded for a bachelor’s degree alone did not enable an applicant to meet
minimum requirements. Points awarded for experience varied based on the type and length
of experience. For example, more points were awarded for law enforcement narcotics and
investigative experience, compared with professional/administrative experience.
23
The languages are Spanish, Russian, Hebrew, Arabic, Nigerian, Chinese, and Japanese,
with fluency verified.
24
BA-98-01 was open from October 15, 1997, through March 7, 2000, and BA-20-00 opened on
May 8, 2000, and remained open during our review.

Page 16 GAO-03-413 EEO Issues at DEA

 The extent to which DEA found that applicants met its minimum
requirements was uneven. Applications from African American women, in
particular, were much less likely to meet DEA’s minimum education and
experience requirements, even after BA-20-00 changed the criteria for
awarding credit for special skills. We show the results separately for BA-98-
01 and BA-20-00 in table 5 below because of the revised qualifications
under BA-20-00.

Table 5: Percentage of Applicants Meeting Minimum Requirements under BA-98-01 and BA-20-00, October 15, 1997, to March 31,
2002

Asian/Pacific Islander African American Hispanic Native American White Total

Women Men Women Men Women Men Women Men Women Men Women Men
BA-98-01 62.5% 82.7% 56.6% 73.6% 79.1% 86.9% 70.0% 77.6% 66.9% 75.6% 66.1% 76.7%
BA-20-00 75.8% 85.0% 56.0% 65.3% 74.7% 79.8% 75.0% 72.1% 72.7% 78.4% 69.4% 77.0%
Source: GAO analysis of DEA data.

Written Assessment Applicants who meet DEA’s minimum qualifications requirements must
then pass a written assessment of their ability to (1) observe and recall
details, (2) organize the details in a writing sample, and (3) write in a
grammatically correct manner. The assessment, which consists of showing
applicants a videotape of a simulated “drug bust” and asking them to write
a narrative describing what was observed, was developed by subject matter
experts and tested to help ensure job-relatedness. The written assessment
is administered, and applicants’ narratives are first reviewed and rated, in a
field division. Later, headquarters staff review the narratives, in order to
help assure DEA-wide consistency with established rating standards.

Because of concerns about low passing rates of African American and

Hispanic applicants, based on the recommendation of an advisory panel of
subject matter experts, DEA changed scoring criteria under BA-20-00 by
reducing the number of details from the videotape that applicants were
expected to recall and identify. At the same time, however, responding to
senior special agents’ concerns that newer special agents lacked the
writing skills necessary for preparing investigation reports and other
documents, DEA required that applicants pass all three parts of the written
assessment, not two, as had been the policy under BA-98-01. These changes
resulted in lower passing rates for all applicant groups. However, the
passing rates for African American men, Hispanic men, and Hispanic

Page 17 GAO-03-413 EEO Issues at DEA

 women under BA-20-00 were substantially lower compared with white
women, who had the highest passing rate. In table 6 below, we show the
passing rates separately for BA-98-01 and BA-20-00 because of the changes
to the written assessment under BA-20-00.

Table 6: Percentage of Applicants Passing Written Assessment under BA-98-01 and BA-20-00, October 15, 1997, to March 31,
2002

Asian/Pacific Islander African American Hispanic Native American White Total

Women Men Women Men Women Men Women Men Women Men Women Men
a a a
BA-98-01 89.0% 93.5% 84.6% 87.5% 80.3% 94.5% 91.9% 93.7% 89.5%
a a a
BA-20-00 76.4% 78.9% 71.3% 64.5% 63.4% 91.8% 82.9% 84.2% 79.2%
Source: GAO analysis of DEA data.
a
Small number of applicants precluded meaningful application of the 80 percent rule.

DEA officials had not studied the effects of the changes to the written
assessment and were unaware of the lower pass rates. However, they said
the lower pass rates might be an unintended result of requiring applicants
to pass all three parts.

Interview A panel of three special agents at a field division office interviews

applicants who pass the written assessment. The interview follows a
structured format of 21 questions to elicit responses to evaluate an
applicant’s abilities in (1) structuring work activities, (2) demonstrating
interpersonal skills, (3) tolerating stress, (4) evaluating information, and
(5) communicating orally. Special agents and Office of Personnel staff
involved in recruiting developed the interview questions and pilot tested
them to help assure their job-relatedness.25 The interview panel rates
applicants in accordance with established standards and the Special Agent
Recruitment Unit staff in headquarters later reviews ratings to check that
panelists adequately documented their assessment and adhered to the
rating standards.

As table 7 shows, interview-passing rates showed relatively little variation,

with about 90 percent of all applicants passing.

25
The questions are modified periodically to protect the integrity of the testing process.

Page 18 GAO-03-413 EEO Issues at DEA

Table 7: Applicant Interview Passing Rates under BA-98-01 and BA-20-00, October 15, 1997, to March 31, 2002

Asian/Pacific Islander African American Hispanic Native American White Total

Women Men Women Men Women Men Women Men Women Men Women Men
a a a a a
BA-98-01 87.7% 92.5% 89.9% 90.8% 91.6% 90.6% 91.3%
a a a a
BA-20-00 91.4% 85.7% 89.0% 82.6% 90.1% 90.1% 88.9% 89.3%
Source: GAO analysis of DEA data.
a
Small number of applicants precluded meaningful application of the 80 percent rule.

Medical Examination Applicants who pass the written assessment and interview are scheduled
for a medical examination and, if they pass, are scheduled for the physical
task test. According to DEA’s Chief Medical Officer, the medical
examination follows standards developed by the Federal Law Enforcement
Medical Program Division of the Public Health Service, based on a 1999
survey of the physical demands of a special agent’s job. Prior to 1999, DEA
followed OPM-prescribed medical standards. About 95 percent of
applicants passed the medical exam and there was little difference in the
pass rates among the applicant groups, as table 8 shows.

Table 8: Applicant Medical Examination Passing Rates under BA-98-01 and BA-20-00, October 15, 1997, to March 31, 2002

Asian/Pacific Islander African American Hispanic Native American White Total

Women Men Women Men Women Men Women Men Women Men Women Men
a a a a a
BA-98-01 92.2% 96.0% 97.0% 96.1% 93.6% 96.1% 94.2%
a a a a
BA-20-00 97.8% 96.8% 98.0% 96.4% 99.0% 96.4% 98.1% 96.5%
Source: GAO analysis of DEA data.
a
Small number of applicants precluded meaningful application of the 80 percent rule.

Physical Task Test The physical task test is the next step for applicants who have passed the
interview and medical examination. This test, intended to measure an
applicant’s ability to participate in physical activity during Basic Agent
Training, consists of six tasks—pull-ups, sit-ups, push-ups, shuttle run,26

26
The shuttle requires the applicant to start from a resting position on his/her back and jump
up and run 60 yards up and back around traffic cones set on the floor.

Page 19 GAO-03-413 EEO Issues at DEA

 2-mile run, and, until March 2003, the handgun trigger pull.27 (See app. II for
physical task test minimum requirements.) According to the Chief of DEA’s
Health Services Unit and the unit’s Health Fitness Specialist, the physical
task test format (except for the trigger pull test) is based on standards
developed by the Cooper Institute,28 which reports that the fitness tests it
recommends for law enforcement have been validated through scientific
research to be job related. With regard to the handgun trigger pull, a DEA
official formerly with DEA’s Firearms Training Unit said that the unit
developed the trigger pull standard based on tests of Basic Agent Training
students.

Overall, men had a higher passing rate on the physical task test than
women.29 African American applicants passed the physical task test at rates
lower than other groups. In fact, African American applicants had a
significantly lower passing rate under BA-20-00, as table 9 shows.30

Table 9: Percentage of Applicants Passing the Physical Task Test under BA-98-01 and BA-20-00, October 15, 1997, to March 31,
2002

Asian/Pacific African Native

Islander American Hispanic American White Women Men
a
BA-98-01 73.9% 66.9% 77.7% 81.9% 73.2% 79.8%
a
BA-20-00 78.3% 64.6% 70.9% 81.2% 64.2% 80.5%
Source: GAO analysis of DEA data.
a
Small number of applicants precluded meaningful application of the 80 percent rule.

DEA officials had not studied physical task test trends and did not know
which test tasks accounted for lower pass rates. The Chief of DEA’s Health
Services Unit and the unit’s Health Fitness Specialist said that they would

27
DEA eliminated the trigger pull test based on recommendations from the DEA Firearms
Training Unit.
28
The Cooper Institute is nationally recognized for aerobics research and work with fitness
programs for law enforcement, public safety, and the military.
29
Failure of the initial physical task test is not automatically disqualifying. Applicants are
given 30 days to retake and pass the test. Data we analyzed reflect the latest physical task
test results.
30
For this analysis, we combined men and women of each race because of the small number
of minority women.

Page 20 GAO-03-413 EEO Issues at DEA

 examine test results for the physical task test components as they look into
updating the physical task test to be consistent with contemporary
standards.

Suitability Applicants passing the physical task test are scheduled for polygraph and
psychological tests and a background investigation to assess their
character and conduct. DEA special agents trained as polygraphists
administer the polygraph test in accordance with standardized techniques
and procedures for conducting polygraph examinations established by the
Department of Defense Polygraph Institute.31 For quality assurance, senior
polygraphists in DEA headquarters review test results, including the
audiotape made during each polygraph session. For the psychological
assessment, a licensed psychologist under contract with DEA reviews two
validated written psychological tests32 and DEA’s Life Experiences
Inventory completed by the applicant, interviews the applicant, and
prepares an overall assessment, which a DEA psychologist reviews. DEA
contracts with OPM to do full-field background investigations on special
agent applicants in accordance with federal regulations.33 The investigation
develops information through interviews with coworkers, employers,
friends, educators, neighbors, and other individuals; a personal interview
with the applicant; and records checks of investigative files and other
records held by federal agencies, and state and local law enforcement and
court records. In addition, an applicant is subject to a financial review,
including a credit bureau check.

The results of the polygraph and psychological tests and the background
investigation are considered together for a suitability determination.
Suitability determinations are made in accordance with federal

31
This institute establishes standards for federal agency polygraph programs and trains all
federal polygraph examiners. In addition, the institute conducts ongoing evaluations of the
validity of polygraph techniques used by federal examiners and inspects federal polygraph
programs to ensure compliance with both those techniques and procedures. The institute
last inspected DEA’s polygraph program in January 2001 and found the program’s policies
and procedures were in compliance with the standards for a federal government polygraph
program.
32
The Minnesota Multiphasic Personality Inventory-2, a test of adult psychopathology, and
the 16 Personality Factor Questionnaire, a personality assessment instrument.
33
5 C.F.R. parts 731, 732, and 736.

Page 21 GAO-03-413 EEO Issues at DEA

 regulations34 by the approving official in the Office of Personnel or, where
there is a question about an applicant’s suitability,35 by a three-person panel
called the “1811-hiring panel.”36 DEA officials said that the panel approach
helps to assure consistency in applying criteria in cases in which there is
some question about an applicant’s suitability. To come to a determination
about an applicant’s suitability, the three panel members must be in
agreement. If the approving official or the panel approves an applicant, he
or she is offered employment.

Our analysis of suitability determinations showed that, overall, DEA found

67 percent of applicants, for whom a suitability determination was made,
suitable to be special agents, with women found suitable at higher rates
than men. However, the approval rate for African Americans—55.2
percent—was substantially lower. (See table 10.)37

Table 10: Percentage of Applicants Found Suitable under BA-98-01 and BA-20-00, October 15, 1997, to March 31, 2002

Asian/Pacific African Native

Islander American Hispanic American White Women Men Total
a
73.9% 55.2% 66.4% 68.6% 74.8% 66.2% 67.0%
Source: GAO analysis of DEA data.
a
Small number of applicants precluded meaningful application of the 80 percent rule.

The approving official and current and former 1811 panel members said
that they had not examined the results of their decisions and could not

34
5 C.F.R. 731.202.
35
According to the criteria, factors that may be considered a basis in finding an individual
unsuitable include misconduct or negligence in employment; criminal or dishonest conduct;
alcohol abuse; and illegal use of narcotics, drugs, or other controlled substances.
36
The approving official in the Office of Personnel and the two permanent members of the
1811-hiring panel have received training in making suitability determinations, as have some
rotating panel members. In addition, during 2002, field division staff began to receive
suitability determination training. Field divisions make suitability recommendations to the
Office of Personnel.
37
For this analysis, we combined men and women for each race because of the small
numbers of minority women. We also combined the results under both announcements
because only about 2 percent of the applicants who underwent a suitability review were
applicants under BA-20-00.

Page 22 GAO-03-413 EEO Issues at DEA

 explain why African Americans fared worse than other applicants or
whether specific disqualifying factors predominate among one group. They
also said that, generally, they were not aware of an applicant’s race when
making their determinations. Since the panel was established in 1997, at
least one and sometimes two of the three panel members have been
minorities.

Because the 1811 hiring panel makes about 80 percent of the suitability
determinations, we developed information about the panel’s decisions. Our
analysis of the panel’s data found that the panel approved about 49 percent
of applicants it reviewed, while finding about 36 percent of African
Americans suitable. (See table 11.)

Table 11: Percentage of Applicants Found Suitable by the 1811 Hiring Panel, September 29, 2000, to May 7, 2002

Asian/Pacific African Native

Islander American Hispanic American White Women Men Total
a
50.0% 36.2% 55.3% 50.9% 57.8% 48.1% 49.1%
Source: GAO analysis of DEA data.
a
Small number of applicants precluded meaningful application of the 80 percent rule.

Data showed that most (82.7 percent) of the applicants whose suitability
was adjudicated by the panel presented multiple issues for adjudication.
The most frequently identified issues related to an applicant’s
psychological assessment (60.6 percent of referred files), polygraph
examination (36.4 percent), driving record (27 percent), not being
recommended by a SAC (26.5 percent), admissions such as drug use on the
Life Experiences Inventory (22.4 percent), and credit issues (17 percent).
Among African American applicants, the most frequently identified reasons
related to the psychological assessment (69.6 percent), not being
recommended by a SAC (34.8 percent), driving record (30.4 percent), credit
issues (21.7 percent), and admissions on the Life Experiences Inventory
(17.4 percent). The panel’s database did not show the basis for its
decisions.

Final Hiring Results As of March 31, 2002, from the 10,748 applications found to meet its
minimum requirements under announcements BA-98-01 and BA-20-00, DEA
hired 793 applicants, while rejecting 3,038 applicants who did not pass the
written assessment, interview, medical or physical task test, or were found

Page 23 GAO-03-413 EEO Issues at DEA

 unsuitable. The remaining 6,917 applicants had opted out or were still in
process. Overall, we found that about 20 percent of applicants on whom
DEA made a final eligibility determination met the special agent hiring
standards and were selected for training. However, we found that
minorities met DEA’s hiring standards at lower rates than white applicants,
with African American and Hispanic applicants meeting the standards and
being selected at substantially lower rates. (See table 12.)

Table 12: Overall Selection Rates for Applicants for Whom DEA Made Hiring Eligibility Determinations under BA-98-01 and BA-
20-00, by EEO Group, October 15, 1997, to March 31, 2002

Asian/Pacific African Native

Islander American Hispanic American White Women Men Total
a
18.7% 13.7% 15.8% 22.9% 20.0% 20.3% 20.3%
Source: GAO analysis of DEA data.
a
Small number of applicants precluded meaningful application of the 80 percent rule.

DEA’s hiring decisions were somewhat less diverse, compared with the
pool of applicants that met DEA’s minimum education, skills, and
experience requirements. As table 13 shows, African Americans, Hispanics,
and women represented a smaller proportion of the special agents hired
under BA-98-01 and BA-20-00, compared with applicants who initially met
minimum requirements, while the proportion of whites increased.

Table 13: Demographic Profile of Applicants Who Met Minimum Requirements and Applicants Hired under BA-98-01 and BA-20-
00, October 15, 1997, to March 31, 2002

Asian/Pacific Islander African American Hispanic Native American White Total

Women Men Women Men Women Men Women Men Women Men Women Men
Meeting minimum requirements
Number 45 405 232 1,080 200 992 13 76 876 6,829 1,366 9,382
Percent 0.4% 3.8% 2.2% 10.0% 1.9% 9.2% 0.1% 0.7% 8.2% 63.5% 12.7% 87.3%
Hired
Number 3 31 7 72 12 71 2 1 62 532 86 707
Percent 0.4% 3.9% 0.9% 9.1% 1.5% 9.0% 0.3% 0.1% 7.8% 67.1% 10.8% 89.2%
Source: GAO analysis of DEA data.

Page 24 GAO-03-413 EEO Issues at DEA

 DEA offers employment to virtually all applicants who make it all the way
through its hiring process. Because the agency is concerned about having
lost quality candidates that could have enhanced the agency’s skills base
and diversity due to the long hiring process (which had been averaging
about 2 years) and not having a larger pool of suitable candidates from
which to choose, DEA made reforms to its recruiting and hiring process
that had been implemented agencywide by December 2002. The reforms
include giving the field more responsibility for managing the hiring process
and avoiding time-consuming back-and-forth actions between the field and
headquarters. For example, field recruiters are to conduct criminal history
and credit records checks to identify unqualified applicants before, rather
than after, an application package is forwarded to headquarters, in order to
reduce the number of application packages reviewed. These preliminary
records checks will also help eliminate the need for costly background
investigations when an applicant is identified as unqualified, according to
DEA. In addition, background investigations are to be initiated earlier in
the process and by field offices, which also are to review the investigation
results, perform necessary follow-up, and make preliminary suitability
recommendations. Previously, background investigations had been
managed by headquarters, which referred follow-up questions to the field.
In addition, suitability determinations will be made before security
clearance reviews are conducted. This will help reduce the security
clearance backlog, which had been a major contributor to delays in the
hiring process, and reduce the need to update stale applicant information
when suitability determinations are made.

No Statistically DEA’s process for promoting special agents to GS-14 and GS-15 positions
has been in place since 1992. The first step is the Special Agent Promotion
Significant Differences Program (SAPP), which uses a supervisor’s performance rating and job
in Promotion Rates simulation exercises at an assessment center to measure the candidate’s
knowledge and abilities to perform at the next grade level and determine
which applicants for promotion are placed on a best-qualified list. The SAC
or head of an office with a vacancy is asked to review the qualifications of
best-qualified applicants and recommend his or her top choices to DEA’s
Career Board, the head of which ultimately makes promotion decisions.
Our analysis showed that although African American and Hispanic special
agents received promotion recommendations at lower rates than white
agents, particularly for promotions to GS-14, there were no statistically
significant differences in promotion rates among the various race, ethnic,
and gender groups.

Page 25 GAO-03-413 EEO Issues at DEA

Special Agent Promotion The SAPP establishes which GS-13 and GS-14 special agents can compete
Program for promotions. The SAPP is an annual process that was developed by an
outside consultant in response to the 1981 Segar decision. The Working
Group reviewed and approved its development. From 1997 to 2001, 1,355
GS-13 and 423 GS-14 special agents participated in the SAPP. 38 Of the GS-
13s participating in the SAPP, 25.5 percent were minorities—mostly African
American and Hispanic—and 7.4 percent were women. Among the GS-14s,
28.4 percent were minorities—mostly African American and Hispanic—and
8.5 percent were women. Table 14 shows the demographics of the GS-13
and GS-14 special agent SAPP participants for 1997 through 2001.39 In our
analysis of promotion-related results, we combine men and women for
each race because of the small number of minority women.

Table 14: Special Agents Participating in the SAPP, 1997-2001

Asian/
Pacific African Native
Islander American Hispanic American White Total Women Men
GS-13
Participants 24 152 161 9 999 1,355 100 1,255
Percentage of total 1.8% 11.2 11.9 0.7 73.7 100.0 7.4 92.6
participants
GS-14
Participants 10 56 51 3 303 423 36 387
Percentage of total 2.4% 13.2 12.1 0.7 71.6 100.0 8.5 91.5
participants
Source: SAPP reports for 1997 through 2001.

The SAPP has two components: the performance rating on the

competencies needed at the next higher grade level and testing at an
assessment center in which job simulations are used to measure a special
agent’s knowledge and abilities needed at the next level.

38
To participate in the SAPP, a GS-13 must have 3 years in grade while a GS-14 is required to
have 4 years in grade.
39
Included in these totals are retest candidates. A special agent is eligible to take the SAPP
again 2 years after his or her last participation. Of the 1,355 GS-13 SAPP participants, 406 (30
percent) were retest candidates, while 103 (24 percent) of the 423 GS-14 SAPP participants
were retest candidates.

Page 26 GAO-03-413 EEO Issues at DEA

In the performance rating, special agents are evaluated on job-related
competencies (see app. III) on a scale from 1 (unacceptable) to 5
(exceptional). An agent’s most recent supervisor prepares the rating, which
is reviewed by a SAC or office head to help ensure that performance
standards are uniformly applied. Data for 1997 through 2001 show that
average performance rating scale scores for SAPP participants were nearly
uniformly exceptional—almost a perfect 5—for all groups, with no
statistically significant differences in the scores among the various groups.
In this regard, the 2001 SAPP report40 found that the rating scores did not
differentiate between highly effective and less effective performers and
showed little if any correlation to assessment center tests of similar
competencies. Because performance rating scores for those who
participate in the assessment center are uniformly high and do little to
differentiate among candidates, a candidate’s assessment center score is
the primary determinant of promotion competitiveness.

The assessment center replicates a day in the life of a special agent through
exercises simulating the job at the next higher level. DEA conducts two
assessment centers each year, one for GS-13s aspiring to GS-14 level
positions and another for GS-14s aspiring to become GS-15s, which are
administered under a contract DEA awards annually.41 The assessment
centers consist of role-play, in-basket,42 and, for GS-14s, oral presentation
exercises simulating the job at the next higher level to measure a
candidate’s performance in a variety of competencies. In 2001, GS-13
special agents were evaluated on 12 competencies in assessment center
simulations while GS-14 special agents were evaluated on 9 competencies.
(See app. III.) The original job simulations were developed following a
content-oriented validation strategy consistent with the Uniform
Guidelines on Employee Selection Procedures and the Principles for
Validation and Use of Personnel Selection Procedures.43 This was done by

40
2001 DEA Special Agent Promotional Programs (SAPPs) for Grades 14 and 15: Revision
and Administration. Prepared for the Drug Enforcement Administration by Fields
Consulting Group, Inc. (McLean, Va.: Sept. 2001).
41
The same contractor was involved in the administration of the 1998-2002 SAPPs.
42
The in-basket contains contents similar to those that are found in the in-basket for the job
that is being tested.
43
Principles for Validation and Use of Personnel Selection Procedures was adopted by the
Society for Industrial and Organizational Psychology, a division of the American
Psychological Association, to provide guidelines for the evaluation, development, and use of
testing instruments.

Page 27 GAO-03-413 EEO Issues at DEA

detailing special agents’ job tasks and the knowledge and abilities required
to perform those tasks, establishing linkages between job tasks and the
knowledge and abilities required, and demonstrating linkages between the
required knowledge and abilities and selection procedures.44 The 2001
SAPP report noted that there is extensive literature documenting the
validity of job simulations for predicting supervisory and managerial
performance and that simulation measures are viewed as having a
potentially high degree of content validity, thereby reducing the possibility
of discrimination.

DEA special agents trained by the contractor serve as assessors. To

minimize the degree of candidate/assessor familiarity and partiality when
assigning candidates to assessors, the assessment centers director collects
familiarity and partiality ratings from assessors to determine the extent to
which assessors know a promotion candidate and how impartially the
assessors believe they could evaluate the candidate. Another way of
fostering fairness is through the representation of minorities and women
among the assessors. Overall, during the 1997-2001 period, the proportion
of minority and women assessors for both the GS-14 and GS-15 assessment
centers exceeded the proportion of minorities and women participating in
the GS-14 and GS-15 SAPPs.45 As a check on how assessors carry out
exercises and developed scores, the assessment centers director reviews
videotapes of exercises, evaluates assessors’ notes, and independently
scores candidates’ performances. In addition, the director surveys
candidates and prepares a report on the results of each assessment center.
The report analyzes overall scores for each assessment center and scores
by competency and exercise, comparing the scores of African Americans
and whites and, to a lesser extent, Hispanics and whites,46 to identify

44
An updated job analysis was completed in June 2002 and will be considered in revising the
SAPP for 2003.
45
Minorities accounted for about 35 percent of assessors in the GS-14 SAPP, while
approximately 26 percent of participants were minorities. Women were 8.4 percent of GS-14
SAPP assessors, while 7.4 percent of participants were women. For the GS-15 SAPP,
minorities accounted for about 38 percent of assessors versus about 28 percent of
participants, while women were 9.7 percent of assessors versus 8.5 percent of participants.
46
The scores of Asian/Pacific Islanders and Native Americans are not analyzed because their
small numbers are insufficient for reliable statistical analysis, according to Working Group
members. The Validation and Analysis Unit Chief and Working Group members said gender
analysis is not performed because early analysis found no statistically significant
differences between women and men. A Working Group member said, however, that
analysis of assessment center results should include women.

Page 28 GAO-03-413 EEO Issues at DEA

competencies in which larger and smaller race/national origin effects were
observed and suggest possible areas for concentrating test improvement,
training, and developmental efforts. In this regard, the contractor made a
number of revisions each year from 1997 through 2001 to the assessment
centers exercises in an attempt to reduce differences.47

The Working Group plays an integral role in the assessment centers.

Working Group members said that they oversee the development of the
exercises, approve the design of the annual assessment centers, monitor
the proceedings, and review and approve the overall results. As part of
their oversight, they said that they meet with participants to get their
feedback and review videotapes of the role-play exercises to determine if
they were conducted fairly and properly. They described the assessment
centers as first-class operations that meet standards for fair treatment and
valid procedures. They also said that differences in scores among groups
have not been statistically significant and that differences in scores among
the candidates are due to factors other than the testing procedures. The
Working Group members said that the strengths of the assessment centers
are that the exercises appropriately reflect results of job analysis, the
assessors are well trained, the assessors’ ratings and the rating measures
are reliable, and the process is checked for adverse impact using statistical
tests. Overall, they said that the assessment center process is a valid way of
selecting a supervisor because it asks candidates to perform supervisory
tasks. Moreover, OPM has described the SAPP as a “success story” in its
use of leadership competencies in making supervisory selections.48

The performance rating and assessment center scores each account for
half in developing an overall SAPP score for each candidate. As table 15
shows, white participants generally had somewhat higher SAPP scores,
although the differences from the other groups were not statistically
significant, according to the Working Group. Men tended to have higher
scores in the GS-14 assessment center, but women tended to have higher
scores in the GS-15 assessment center.

47
For example, because race/national origin score differences were attributed to the in-
basket exercises of both assessment centers, the in-basket exercises were revised over the
1997-2001 period for both assessment centers. Among the revisions were reducing the
number of items in the in-basket, strengthening the relationship of in-basket items to
dimensions measured, and increasing the time allowed for the exercise.
48
U.S. Office of Personnel Management, Supervisors in the Federal Government: A Wake-
Up Call (Washington, D.C.: Jan. 2001).

Page 29 GAO-03-413 EEO Issues at DEA

Table 15: Average SAPP Scores, 1997-2001

Asian/
Pacific African Native
Year Islander American Hispanic American White Women Men
GS-14 assessment center
1997 87.33 83.92 80.57 87.50 86.20 86.18 85.12
1998 81.67 82.88 83.74 91.00 86.14 84.11 85.36
1999 85.67 82.85 85.51 83.00 85.36 84.44 85.17
2000 85.71 82.85 81.83 81.00 85.96 84.13 85.35
a
2001 82.20 83.53 82.75 86.13 85.06 85.28
GS-15 assessment center
a a
1997 81.08 85.32 86.57 86.88 85.32
a
1998 84.50 81.75 84.80 86.63 88.00 84.81
1999 82.50 80.45 84.50 93.00 86.29 81.75 85.41
a
2000 92.00 83.90 82.75 85.63 87.50 84.82
2001 81.40 84.87 80.09 86.00 85.99 87.20 85.14
Source: DEA.
a
No member of group participated.

The SAPP scores are used to establish score bands that determine which
special agents make the best-qualified list for GS-14 and GS-15 vacancies.49
Under the SAPP, the size of the score band for GS-14 positions is 10 points,
while the score band for GS-15 positions is 11 points. The actual score band
for a particular vacancy is determined by the applicant with the highest
SAPP score. For GS-14 positions, for example, if the highest-scoring
applicant has a SAPP score of 95, the score band for that vacancy is 86 to
95; and applicants with scores of at least 86 would be placed on the best-
qualified list. Similarly, if the highest-scoring applicant for a GS-15 vacancy
has a SAPP score of 95, the score band for that vacancy is 85 to 95, and
applicants with scores of at least 85 would be placed on the best-qualified
list.

49
The score bands are designed to help ensure that candidates having similar levels of
knowledge and abilities are not penalized because of errors of measurement. The use of
score bands is based on the rationale that the measurement of abilities using predictor tests
results in some error with each candidate. The measurement error associated with tests
means that small differences in scores do not allow one to definitively say that one
candidate will do better than another on a job.

Page 30 GAO-03-413 EEO Issues at DEA

SAC/Office Head Once a best-qualified list is assembled for a particular vacancy, it is sent to
Recommendations the office with the vacancy to obtain the SAC’s (or office head’s)
recommendations for promotion. The SAC’s recommendation is solicited
because DEA believes that he or she is more familiar with the requirements
of the position to be filled and is in a better position to assess candidates’
qualifications from their biographical and other information. A SAC
typically recommends three individuals. The SAC/office head
recommendation process was at the heart of the September 1999 district
court decision that found that the process had not been validated and
resulted in African American applicants receiving recommendations at
statistically significant lower rates that whites. In addition to not having
been validated, there was no format in place at the time of the 1999
decision to assure that SACs evaluated candidates using knowledge, skills,
and abilities relevant to the vacant job. Following the court decision, which
required DEA to either drop the SAC/office head recommendation process
or stop making promotions to GS-14 and GS-15 special agent positions until
the use of the recommendations could be validated as job related, DEA and
the plaintiffs reached a court-approved agreement allowing SAC/office
head recommendations and promotions under certain terms and
conditions until a permanent, validated process could be implemented. The
interim process, which was implemented in January 2000 and was still in
place as of March 2003, requires that a SAC provide information about why
a candidate is better suited for the position under consideration, including
his or her experience and success in job-related competencies (see app.
III), when making recommendations.

Despite the changes to the process, differences in SAC/office head

recommendation rates for applicants seeking promotion to GS-14 and GS-
15 positions continued. For GS-14 and GS-15 vacancy announcements that
resulted in a promotion during fiscal years 2000 and 2001, we analyzed the
number of times applicants on the best-qualified list received SAC/office
head recommendations, compared with the number of times applicants
appeared on best-qualified lists. (An applicant can apply for multiple
positions and appear on multiple best-qualified lists.) We found that for
promotions to GS-14, African American and Hispanic special agents
received SAC/office head recommendations at statistically significant
lower rates than white special agents. For GS-15 positions, African
American special agents received SAC/office head recommendations at
statistically significant lower rates than whites. Table 16 shows the
frequency of applicants on best-qualified lists being recommended by
SACs, 2000-2001.

Page 31 GAO-03-413 EEO Issues at DEA

Table 16: Frequency of Applicants Appearing on Best-Qualified Lists Being Recommended by SACs, 2000-01

Asian/
Pacific African Native
Recommended for Islander American Hispanic American White Women Men
GS-14 promotions 28.2% 6.0% 6.8% 16.7% 15.2% 11.7% 12.9%
a
GS-15 promotions 33.3% 5.5% 8.2% 10.8% 12.6% 9.6%
Source: GAO analysis of DEA data.
a
Small numbers of applicants do not allow for statistical analysis.

At the time of our review, DEA, working with members of the Monitoring
Committee and other special agents, had developed a revised
recommendation process. The Working Group approved the revised
process and said that it met the requirements of content validity as
described in the Uniform Guidelines on Employee Selection Procedures. A
major change under this process requires that a panel of three GS-14, GS-
15, or SES special agents at the location with a vacancy review and rank
applicants on a best-qualified list based on job-related competencies (see
app. III) and any special requirements of the position. The SAC would make
his or her promotion recommendations from this list, providing a
comprehensive justification in recommending an individual not ranked
among the top three applicants. As part of its review and evaluation of the
proposed process, DEA’s plan for oversight of the SAC/office head
recommendation process included tracking the race of each person
(1) appearing on a best qualified list, (2) recommended by a SAC, and
(3) selected for promotion, and report these results periodically to the
Segar plaintiffs’ counsel. However, the plan did not specifically include
tracking results by gender. At the end of our fieldwork, the plaintiffs and
DEA were involved in mediation efforts in order to reach final agreement
on the recommendation process, particularly with regard to procedures for
monitoring the implementation of the process. Approval by the court is
required to complete settlement on this issue.

Career Board Selections Promotion decisions for GS-14 and GS-15 special agent positions are made
following deliberations by DEA’s Career Board. The Career Board’s 11
voting members, who are DEA senior executives, make promotion
recommendations by majority vote to the Career Board Chair, who

Page 32 GAO-03-413 EEO Issues at DEA

ultimately has responsibility and authority to make the selection decision.50
DEA makes promotion decisions on a position-by-position basis when
vacancies become available, with a best-qualified list assembled for each
vacancy based on applicants’ SAPP scores. However, minorities and
women do not appear on a substantial portion of best-qualified lists
because they do not apply for particular vacancies or because their SAPP
scores are not high enough to place them among the best qualified.51

We analyzed the results of 641 promotions to GS-14 positions and 204

promotions to GS-15 during fiscal years 1997 through 2001 and found that,
despite differences in SAC/office head recommendation rates, there were
no statistically significant differences in the rates at which the Career
Board selected minorities and women for promotion. Our analysis showed
only small differences in the rates at which African American, Hispanic,
and white special agents were selected for promotion to GS-14 and GS-15
positions. The numbers of Asian/Pacific Islanders and Native Americans
eligible for promotion were too small for statistical analysis. Although
women were somewhat less likely than men to be selected for promotion,
this difference was not statistically significant. Table 17 shows the number
of individuals on best qualified lists from which promotions were made and
the number selected for promotion by EEO group for fiscal years
1997-2001.

50
In November 2002, the Career Board was increased from 10 to 11 voting members. At the
same time, the number of SACs sitting on the board increased from 4 to 6, each serving time-
limited tenures. The Administrator said that he made these changes to achieve rotation,
greater participation, and transparency.
51
African Americans were represented on 71.5 percent, Hispanics on 57.4 percent, and
women on 58.2 percent of GS-14 best-qualified lists from which promotions were made
during fiscal years 1997 through 2001. In addition, African Americans were represented on
87.3 percent, Hispanics on 81.9 percent, and women on 65.2 percent of GS-15 best-qualified
lists from which promotions were made during this period.

Page 33 GAO-03-413 EEO Issues at DEA

Table 17: Individuals on at Least One Best-Qualified List from Which Promotions Were Made and Individuals Selected for
Promotion, by EEO Group, Fiscal Years 1997-2001

Asian/
Pacific African Native
Islander American Hispanic American White Women Men
Promotions to GS-14
Individuals on best-qualified lists 20 98 95 10 740 73 890
Number selected 14 64 65 7 491 44 597
Percentage selected 70.0% 65.3% 68.4% 70.0% 66.4% 60.3% 67.1%
Promotions to GS-15
Individuals on best-qualified lists 4 33 41 2 241 25 296
Number selected 1 20 26 1 156 14 190
Percentage selected 25.0% 60.6% 63.4% 50.0% 64.7% 56.0% 64.2%
Source: GAO analysis of DEA data.

DEA’s Discipline DEA’s centralized disciplinary system was put in place in 1984 and, in 1988,
was found to meet the court’s requirements for being effective and
Process Has Been nondiscriminatory.52 The three-tiered system separates the responsibilities
Found to Be for investigating an allegation, proposing disposition, and making a final
agency decision. Our analysis of disciplinary data for fiscal years 1997
Nondiscriminatory through 2001 showed that the proportion of African American, Hispanic,
and women special agents disciplined was substantially higher than their
representation in the DEA special agent workforce. This situation reflects
that African American, Hispanic, and women special agents had a
proportionately higher number of allegations of misconduct lodged against
them and that a higher proportion of these allegations were substantiated
by investigations and resulted in disciplinary action. Nonetheless, the
results of two studies by outside contractors, approved by the Working
Group, found DEA’s disciplinary process to be fair and nondiscriminatory.

DEA’s Validated Discipline DEA’s Office of Professional Responsibility (OPR) is responsible for
System investigating all allegations of integrity violations (illegal or improper

52
The court approved a stipulation between the parties that the disciplinary system met the
court’s requirements.

Page 34 GAO-03-413 EEO Issues at DEA

conduct) and the vast majority of allegations of misconduct involving
violations of DEA’s Standards of Conduct.53 OPR investigations are findings
of fact and do not contain conclusions or recommendations.

The Board of Professional Conduct reviews investigation files in order to

propose a disposition for a matter.54 In each case,55 two board members
independently review the investigation report, the employee’s official
personnel record, and how similar cases have been handled, and propose a
disposition using the preponderance of the evidence standard.56 Board
members are also to consider mitigating and aggravating factors known as
the Douglas factors—derived from a Merit Systems Protection Board
(MSPB) 57 decision—in determining the appropriateness of a disciplinary
action.58 The board’s chairman reviews their recommendations and the
investigative file and issues the board’s proposed disposition. The board
can propose that a special agent be cleared of alleged charges, receive a
letter of caution,59 or be disciplined (receive a letter of reprimand, or be
suspended, demoted, or removed).

The final agency decision is made by one of two deciding officials in

headquarters using the preponderance of the evidence standard, after
independently reviewing the proposed action and the investigation file and

53
The Department of Justice Inspector General reviews all complaints OPR receives and can
decide to take the investigative lead.
54
Investigations involving senior executives are forwarded to the Department of Justice for
disposition.
55
The board also reviews investigations of shooting incidents, accidents involving official
government vehicles, and damage or loss of government property.
56
The degree of relevant evidence that a reasonable person, considering the record as a
whole, would accept as sufficient to find that a contested fact is more likely to be true than
untrue.
57
MSPB hears and decides appeals by federal employees of actions taken against them by
their agencies.
58
Curtis Douglas v. Veterans Administration, 5 MSPR 280, 5 MSPB 313 (1981). The factors
include the nature, seriousness, and notoriety of the offense; the position of the employee;
past work and disciplinary record; effect of an offense on the employee’s ability to perform
his or her job; and consistency with the agency’s penalty guide.
59
A letter of caution is nondisciplinary in nature and issued in situations in which a charge is
not sustained but the employee needs to be warned about the appearance of impropriety or
situations in which a charge is sustained but does not warrant disciplinary action.

Page 35 GAO-03-413 EEO Issues at DEA

 consulting with employee relations specialists and the DEA Chief Counsel’s
office. The deciding officials also apply the Douglas factors and other legal
precedents. As part of the final decision process, an employee is provided
the opportunity to review all evidence and make written and/or oral
responses to the disciplinary charges.

Higher Proportion of Our analysis of disciplinary data for fiscal years 1997 to 2001 showed that
African American, Hispanic, the proportion of African American, Hispanic, and women special agents
disciplined was substantially higher than their representation in the DEA
and Women Special Agents special agent workforce and that this difference was statistically
Disciplined significant. During this period, African American special agents accounted
for 16.2 percent of the agents disciplined, while making up 8.3 percent of
the special agent workforce; Hispanics were 15.2 percent of agents
disciplined, while making up 8.9 percent of the special agent workforce;
and women were 12.7 percent of special agents disciplined but 7.8 percent
of the special agent workforce. Table 18 shows special agents disciplined,
compared with special agent population, by EEO group for fiscal years
1997-2001.

Table 18: Special Agents Disciplined Compared with Special Agent Population, by EEO Group, Fiscal Years 1997-2001

Asian/
Pacific African Native
Islander American Hispanic American White Women Men Total
Total disciplined 9 66 62 0 271 52 356 408
Percentage of total 2.2% 16.2% 15.2% 0.0% 66.4% 12.7% 87.3% 100.0%
disciplined
Representation in special 2.0% 8.3% 8.9% 0.6% 80.3% 7.8% 92.2% 100.0%
agent workforce
Source: GAO analysis of DEA data.

We identified two factors that help explain why a higher proportion of

African American, Hispanic, and women special agents were disciplined.
One factor is that a proportionately higher number of allegations of
misconduct were lodged against African American, Hispanic, and women,
compared with their representation in the special agent workforce. These
differences, shown in table 19, were statistically significant.

Page 36 GAO-03-413 EEO Issues at DEA

Table 19: Distribution of Cases of Alleged Misconduct Involving Special Agents, by EEO Group, Compared with Workforce
Representation, Fiscal Years 1997-2001

Asian/
Pacific African
Islander American Hispanic Native American White Women Men
Percentage of allegations 1.5% 12.8% 13.3% 0.1% 72.3% 10.5% 89.5%
Representation in special 2.0% 8.3% 8.9% 0.6% 80.3% 7.8% 92.2%
agent workforce
Source: GAO analysis of DEA data.

The second factor that helps explain why a higher proportion of African
American, Hispanic, and women special agents are disciplined is that a
higher proportion of allegations levied against them are found after
investigation to have merit and lead to disciplinary action. These
differences, shown in table 20, were statistically significant.

Table 20: Cases of Alleged Misconduct Involving Special Agents That Resulted in Disciplinary Action, by EEO Group, Fiscal
Years 1997-2001

Asian/
Pacific African Native
Total Islander American Hispanic American White Women Men
Percentage of cases
resulting in discipline 47.0% 64.3%a 59.5% 53.4% b
43.2% 57.1% 45.8%
Source: GAO analysis of DEA data.

Note: Does not include cases administratively closed without a final decision.
a
Although the percentage of cases involving Asian/Pacific Islanders resulting in disciplinary action is
larger than the figures for African Americans, Hispanics, and women, this percentage is not statistically
different from the percentage for whites.
b
Small numbers prevented statistical analysis of allegations and disciplinary actions.

DEA does not know why nor does any study offer a reason why African
American, Hispanic, and women special agents had proportionately higher
numbers of allegations of misconduct lodged against them or why a higher
proportion of these allegations were substantiated by investigations and
resulted in disciplinary actions.

Concerns with DEA’s In performing our analysis, we found discrepancies between the
Disciplinary Data disciplinary data maintained by the DEA Chief Counsel’s office that were

Page 37 GAO-03-413 EEO Issues at DEA

 reported to us and data the DEA Office of Equal Opportunity reported to
the Monitoring Committee. We brought these discrepancies to DEA’s
attention, and significant time was needed to develop corrected data. The
corrected data showed that data reported by the Chief Counsel’s office
were incomplete while data reported by the Office of Equal Opportunity
counted some cases twice. Accurate and reliable data are important to
DEA monitoring its disciplinary process. At the time of our review, DEA
was looking into but had not developed a process to help ensure accurate
and reliable reporting of disciplinary data.

Studies Have Found DEA’s Two studies done by outside contractors, which we found to be
Disciplinary Process to Be methodologically sound, have found DEA’s disciplinary process to be fair
and nondiscriminatory. The first study, done under a contract awarded by
Fair and Nondiscriminatory the Working Group in order for DEA to comply with the court order in the
Segar case, analyzed 318 disciplinary cases for the period September 1982
through June 1986 to determine whether disciplinary action taken was
consistent with the offense or offenses committed and whether special
agents were treated alike regardless of race.60 Of the 318 cases, 239 cases
(75.2 percent) involved white special agents, 32 (10.1 percent) involved
African Americans, 36 (11.3 percent) involved Hispanics, and 11 (3.5
percent) involved other racial/ethnic groups. The percentage of African
American and Hispanic special agents disciplined was higher than their
representation in the special agent workforce. African Americans, who
were 10.1 percent of the agents disciplined, made up about 8.5 percent of
the special agent workforce during the period, and Hispanics, who were
11.3 percent of the agents disciplined, made up 10.2 percent of the special
agent workforce. Women were 3.2 percent of agents disciplined while
making up 7.6 percent of the special agent workforce.

The study’s results, issued in April 1987 and approved by the Working
Group, concluded that, based on statistical analysis, there appeared to be
no discrimination against minorities in general, and African Americans in
particular, with regard to the number of individuals recommended for
discipline, the severity of the proposed punishment, or the severity of the
actual punishment carried out as related to the severity of the offense. The
study also found a strong relationship between the severity of the charge
and the discipline ultimately meted out. The study found that although

60
A Study of the Drug Enforcement Administration’s Current Conduct and Discipline
System, Advanced Research Resources Organization, Bethesda, Md.: Apr. 1987.

Page 38 GAO-03-413 EEO Issues at DEA

African American special agents were charged on average with more
serious offenses than white special agents, there were no statistically
significant differences in the discipline decisions as a function of the
severity of the charges. Although the study did not identify the cause for
African Americans being charged with more serious offenses, it raised but
did not examine whether, race, type of assignment, or small sample size of
the study could have been factors.

The second study, done at the request of the Monitoring Committee and
Working Group, examined whether there were differences in the discipline
administered to white versus African American special agents during
calendar years 1994-2000.61 Of 365 disciplinary cases of special agents
during this period, 237 (64.9 percent) involved whites, 58 (15.9 percent)
involved African Americans, 58 (15.9 percent) involved Hispanics, 6 (1.6
percent) involved Asian/Pacific Islanders, and 3 (0.8 percent) involved
Native Americans. There was no race information in 3 cases. In addition, no
breakout by gender was reported. The study methodology was developed
so that the results could be applied to any protected group, but because the
study was done in the context of the Segar case, only discipline
administered to African American and white special agents was analyzed.

According to the report, issued in August 2001 and approved by the

Working Group, there were no statistically significant differences in the
imposition of discipline between African American and white special
agents for any offense or violation category. The study also concluded that
the data “decisively and unequivocally” showed no differences between
African American and white special agents in terms of the severity of the
punishment administered, which the study said confirmed the integrity of
the discipline process. Although the data reported by the study showed that
the percentage of African American special agents disciplined (15.9 percent
of agents disciplined) was higher than the group’s representation in the
workforce (less than 9 percent), the study did not analyze the relationship
between the number of African Americans disciplined and their
representation in the special agent workforce.62

61
Frank J. Landy, Drug Enforcement Administration Discipline System Study, SHL Landy
Jacobs: Litigation Support Group, Boulder, Colo.: Aug. 8, 2001.
62
The situation was similar for Hispanic special agents. Although less than 9 percent of the
special agent workforce, Hispanics accounted for 15.9 percent of the agents disciplined
during the study period.

Page 39 GAO-03-413 EEO Issues at DEA

 The integrity of DEA’s discipline process from a legal perspective was also
evident in MSPB decisions. Employees can appeal removals, demotions,
and suspensions of more than 14 days to MSPB and, during, fiscal years
1997-2001, MSPB decided the cases of 28 DEA special agents.63 Of the 28
cases, MSPB affirmed DEA’s actions in 24 cases (85.7 percent), affirmed
some or all of the charges and mitigated the penalty in 2 cases (7.1
percent), and reversed DEA’s actions in 2 cases (7.1 percent). In
comparison, governmentwide, MSPB reversed 22 percent of agency
decisions in fiscal year 2001. A Justice Department review of fiscal year
1997 Justice cases before MSPB found that, among department
components, DEA had the highest affirmation rate, which was attributed to
the quality of documentation and evidence supporting charges. The report
said that DEA’s centralized disciplinary system provides for impartiality
and consistency in developing defensible disciplinary actions.

Employee Views on As agreed with your office, during our review, we spoke with minority and
women special agents, including members of the Monitoring Committee as
Promotion and well as members of the Hispanic Advisory and Asian-American Advisory
Discipline Committees, to obtain their views on promotion and discipline issues.64 Our
work has found that high-performing organizations promote a diverse and
inclusive workforce and have workplaces in which perceptions of
unfairness are minimized.65 However, comments of many of the minority
and female special agents with whom we spoke indicated that they
believed trust and fairness were lacking with regard to the promotion and
discipline processes. For example, members of these committees said they
perceived that their groups were underrepresented in promotions to GS-14
and GS-15 and that selection outcomes were frequently based on “who you

63
Includes initial appeals and Board reviews of initial decisions regarding the same
individual.
64
We recognize that the views of the members of the committees may not necessarily
represent the views of their constituents. Also, there was no group of nonminority special
agents to which we could speak. We recognize that the views of nonminority special agents
could be different from the views of the minority agents.
65
For a discussion of this and other attributes of high performing organizations, see U.S.
General Accounting Office, A Model of Strategic Human Capital Management, GAO-02-
373SP (Washington, D.C.: Mar. 15, 2002); Human Capital: Practices That Empowered
Employees, GAO-01-1070 (Washington, D.C.: Sept. 14, 2001); and Human Capital: Key
Principles from Nine Private Sector Organizations, GAO/GGD-00-28 (Washington, D.C.:
Jan. 31, 2000).

Page 40 GAO-03-413 EEO Issues at DEA

know.” These special agents said that candidates, especially in field
divisions, may have been disadvantaged because of a lack of personal
knowledge of an agent among the board members. The November 2002
change to increase the number of SACs serving as rotating members was
made to address this concern. Another concern the minority special agents
expressed was about the board’s racial, ethnic, and gender representation.
However, in January 2003, the Career Board included two African
Americans, two Hispanics, one Native American, and six whites; one of the
members was a woman. During the 1997-2002 time frame, the board had a
similar makeup.

One additional concern of many of the minority special agents with whom
we spoke was the perceived unfairness in the discipline process. These
agents said that they believed that minorities were subject to more scrutiny
and, as a result, were disproportionately investigated for misconduct. A
number of the agents also said that they perceived that there were
inconsistencies in punishment meted out, with minorities receiving harsher
punishment. Our work showed that African American, Hispanic, and
women special agents had a proportionately higher number of allegations
of misconduct lodged against them and that a higher proportion of these
allegations were substantiated by investigations and resulted in
disciplinary actions. However, the results of two studies by outside
contractors, approved by an oversight group and which we found
methodologically sound, found DEA’s disciplinary process to be fair and
nondiscriminatory.

The perceptions minority and women special agents have with regard to
fairness in promotions and discipline may be driven by an absence of data
and other information. For example, DEA had not shared the racial analysis
of its promotion actions or SAC/office head recommendations with its
special agent workforce, except the Monitoring Committee.66 Our analysis
of promotions to GS-14 and GS-15 special agent positions for fiscal years
1997 through 2001 showed no statistically significant differences in the
promotion rates among the racial, ethnic, and gender groups. In addition,
DEA only shared the results of the 2001 discipline study, which found no
statistically significant differences in the imposition of discipline between
African American and white special agents, with the Monitoring

66
Because the Segar case had remained under court supervision, DEA provided the
Monitoring Committee with the results of promotion decisions, breaking out the data by
African American, white, and other, though not by gender.

Page 41 GAO-03-413 EEO Issues at DEA

 Committee. On the other hand, although the study methodology was
developed so that the results could be applied to any protected group, the
study was done in the context of the Segar case and examined only
discipline administered to African American and white special agents.
However, it appears that discipline actions taken against Hispanics were to
have been included in the study, according to a memo from a former DEA
Administrator to the Hispanic Advisory Council. Neither council members
nor DEA officials could explain why this did not occur.

As we discuss in our exposure draft A Model of Strategic Human Capital

Management, our work in the human capital area has shown that leading
organizations promote an inclusive workforce by seeking employee input
and using that input to adjust their human capital approaches.67 DEA has
taken, or plans to take, some steps in this regard. One step was that, as
DEA’s study of a valid SAC/office head recommendation process
progressed, the agency involved minorities, in addition to Monitoring
Committee representatives that had been involved, and women. Also, the
November 2002 changes to the structure of the Career Board were based
on input from the Monitoring Committee and other special agents, and,
according to the Administrator’s memo announcing the change, were
intended to bring transparency and greater participation to the promotion
process. Furthermore, in March 2002, the Administrator established an
ombudsman office68 to address workplace conflicts, facilitate fair and
equitable resolutions to concerns, and serve as an advisor and information
and communications resource. The ombudsperson said that she had
handled a variety of matters, mostly involving special agents, including
issues concerning performance appraisals and Career Board decisions to
reassign agents.

Conclusions At some steps of DEA’s hiring process, a higher percentage of minorities do

not meet the requirements to become a special agent, with African
American and Hispanic applicants hired at substantially lower rates
compared with white applicants. DEA has not analyzed why some groups
of applicants have lower passing rates and whether alternative procedures

67
GAO-02-373SP.
68
For additional information about ombudsmen in the federal workplace, see U.S. General
Accounting Office, Human Capital: The Role of Ombudsmen in Dispute Resolution, GAO-
01-466 (Washington, D.C.: Apr. 13, 2001).

Page 42 GAO-03-413 EEO Issues at DEA

could lessen these differences without compromising the high standards
necessary to perform the job successfully. Furthermore, because a large
number of applicants drop out or do not meet hiring standards, DEA offers
employment to virtually all applicants it finds suitable, leaving the agency
with little choice in whom it hires. DEA has not performed a workforce
analysis that takes into account expected attrition of the special agent
workforce, especially due to retirements, that could help the agency plan
for a sufficiently large pool of suitable special agent candidates with
diverse cultural and skills backgrounds from which it could selectively
hire.

Promotions of special agents to supervisory GS-14 and GS-15 positions

have not shown statistically significant differences among groups.
However, DEA’s rigorous promotion process has been subject to litigation
surrounding the SAC/office head recommendation process, the step in the
overall promotion process that had not been validated. DEA has since
developed a revised recommendation process and proposed a monitoring
process that the agency and the plaintiffs are discussing to reach
agreement about and which still must be court approved. However, the
proposed monitoring process does not take gender into account.

The proportion of African American, Hispanic, and women special agents

disciplined for misconduct was substantially higher than their
representation in the DEA special agent workforce. However, two studies
have found DEA’s discipline process to be valid and fair, but neither of the
studies addressed differences in the rates at which different groups were
disciplined, and the second study compared only disciplinary actions
involving African American and white special agents. Reliable data would
be necessary to carry out a study covering all race, ethnic, and gender
groups, and our analysis of disciplinary actions was delayed by the lack of
reliable data. Although DEA eventually developed corrected data, the
agency has not developed a process to maintain accurate and reliable
disciplinary data.

Finally, minority and female special agents with whom we spoke generally
perceived that the promotion and discipline processes lacked fairness.
Perceptions of unfairness can be almost as corrosive to the workplace as
actual instances of unfair treatment and can undermine trust. Because DEA
did not widely share analyses of promotion and disciplinary actions with its
special agent workforce, agents were hindered in formulating informed
views about the fairness and equity of the promotion and discipline
processes. This situation would continue under DEA’s proposal for

Page 43 GAO-03-413 EEO Issues at DEA

 monitoring the promotion process because reporting of outcomes would
be limited to the African American special agents plaintiff group.

Recommendations for We recommend that the Administrator of DEA direct that

Executive Action • a process be initiated to monitor the results of decisions at the various
steps in the hiring process to identify differences in selection rates
among groups, and where substantial differences are found, determine
why they occur and what, if anything, can be done to reduce the
differences while maintaining the high standards necessary for the job
of special agent;

• a workforce analysis be done, which takes into account retirement

eligibility, expected retirements, and other attrition, to guide the
development of DEA’s recruiting and hiring plans and strategies;

• the plans to monitor the results of the SAC/office head recommendation

process by race and ethnicity be expanded to include monitoring by
gender;

• steps be taken to develop, maintain, and ensure the reliability of a

discipline database and that the study of disciplinary actions taken
against African American and white special agents be expanded to
analyze disciplinary actions against all racial, ethnic, and gender groups
of special agents; and

• appropriate, aggregate statistical data on the outcomes of the promotion

and discipline processes for all racial, ethnic, and gender groups are
available to its special agent workforce to help special agents formulate
informed views about the fairness and equity of the agency’s promotion
and discipline processes.

Agency Comments and In commenting on a draft of this report, the Acting Administrator of DEA
agreed with our recommendations and said that DEA was acting to
Our Evaluation implement them. (See app. IV for the text of the comments.)

Regarding hiring of special agents, DEA said it will monitor the results of
decisions at the various steps in the hiring process to identify differences in
selection rates. DEA’s response said that it would identify differences

Page 44 GAO-03-413 EEO Issues at DEA

among minority groups but did not specifically mention gender differences.
DEA should examine differences in selection rates among all groups,
including gender groups. DEA also said that it will conduct a study to
review each part of the special agent hiring process. The study will include
analysis of processes used by other law enforcement agencies to identify
alternative strategies that might lessen differences in selection rates.

DEA agreed with our recommendation that a workforce analysis be done to

guide the development of recruiting and hiring plans and strategies. DEA
said that it will analyze its workforce to determine the portion eligible for,
or who anticipates, retirement, and to identify other attrition concerns for
the agency and use the results to guide the development of its recruiting
and hiring plans and strategies.

DEA also agreed with our recommendation to monitor the SAC/office head
recommendation process for all EEO groups, including by gender. DEA
said that, if it is put in place, its monitoring plan will include evaluating
results for all demographics of the workforce, including race, ethnicity, and
gender.

Regarding the reliability of discipline data, DEA said that it agreed with our
recommendation and had begun an effort to consolidate multiple discipline
databases. With regard to our recommendation that DEA expand the study
of disciplinary actions taken against African American and white special
agents to analyze disciplinary actions against all racial, ethnic, and gender
groups of special agents, DEA said that it will do so.

Finally, DEA concurred with our recommendation to make statistical data

on the outcomes of the promotion and discipline processes for all racial,
gender, and ethnic groups available to its special agent workforce. DEA
said that it will make available aggregate statistical data concerning
promotion selections and types of misconduct found.

Overall, the actions DEA describes, when fully implemented, should meet
our recommendations. DEA also provided technical comments, which we
incorporated in the report where appropriate.

As agreed with your office, unless you publicly announce its contents
earlier, we plan no further distribution of this report until 30 days after its
date. We will then send copies of this report to the Attorney General, the
Administrator of DEA, and interested congressional committees. We will

Page 45 GAO-03-413 EEO Issues at DEA

also make copies available to others upon request. In addition, the report
will be available at no charge on GAO’s Web site at http://www.gao.gov. If
you or your staff have questions about this report, please call me at (202)
512-6806 or Thomas Dowdal, Assistant Director, on (202) 512-6588. Key
contributors to this assignment were Anthony Lofaro, Domingo Nieves, and
Gregory Wilmoth.

Sincerely yours,

Victor S. Rezendes
Managing Director, Strategic Issues

Page 46 GAO-03-413 EEO Issues at DEA

Appendix I

Objectives, Scope, and Methodology A

A
ppep
nen
d
xIeis

In her letter of May 25, 2001, Congresswoman Eddie Bernice Johnson

expressed concerns about discrimination in the Drug Enforcement
Administration’s (DEA) hiring, promotion, and discipline processes. Based
on discussions with her office, we agreed to (1) develop information on the
diversity of DEA’s special agent workforce and (2) examine the processes
DEA has put in place to provide for fair and nondiscriminatory hiring,
promotion, and disciplining of special agents and the results that have been
achieved.

DEA Special Agent With regard to the diversity of DEA’s special agent workforce, we
developed information by race, ethnicity, and gender for each pay grade,
Workforce Diversity using data from the Office of Personnel Management’s (OPM) Central
Personnel Data File (CPDF) as of September 1980, 1985, 1990, 1995, and
2000, and data from DEA as of September 2002. We selected these dates to
show changes, if any, that had occurred in DEA’s special agent workforce
from around the initial decision of the U.S. District Court for the District of
Columbia in 1981 with regard to a class action racial discrimination lawsuit
brought against DEA by the agency’s African American special agents1
through the end of fiscal year 2002. To compare the racial, ethnic, and
gender composition of the DEA special agent (criminal investigator job
occupation series 1811) workforce with other criminal investigator
workforces, we used data OPM provided for criminal investigators
governmentwide and the nonfederal law enforcement labor force, a
measure that includes nonfederal law enforcement and security-related
occupations that are considered comparable to the 1811 occupational
series by the OPM, the Equal Employment Opportunity Commission, and
the Department of Labor. In addition, we obtained overall federal
workforce diversity data as of September 2002 from OPM. We determined
based on our past work2 that the CPDF data are sufficiently reliable for the
purpose used in this report.

1
Segar v. Civiletti, 508 F. Supp. 690 (D.D.C. 1981), aff’d in relevant part subnom. Segar v.
Smith, 738 F. 2d 1249 (D.C. Cir. 1984), cert. denied subnom. Meese v. Segar, 471 U.S. 1115
(1985).
2
U.S. General Accounting Office, OPM’s Central Personnel Data File: Data Appear
Sufficiently Reliable to Meet Most Customer Needs, GAO/GGD-98-199 (Washington, D.C.:
Sept. 30, 1998).

Page 47 GAO-03-413 EEO Issues at DEA

 Appendix I
Objectives, Scope, and Methodology

DEA’s Hiring, To determine the DEA processes for hiring, promoting, and disciplining
special agents and the results that have been achieved, we reviewed
Promotion, and relevant DEA policies and procedures and interviewed knowledgeable
Discipline Processes DEA officials. In addition, we spoke with employee representatives,
including members of the Monitoring Committee, a court-established group
of African American special agents representing plaintiff class members;
the Hispanic Advisory Council; and the Asian-American Advisory Counsel.
Further, we spoke with the members of the Working Group that was
established to help ensure that the orders of the court are carried out and
that DEA’s personnel practices are nondiscriminatory. With regard to
developing information about the job-relatedness of DEA’s hiring,
promotion, and discipline processes, we spoke with DEA officials, Working
Group members, and contractors who had studied the processes and
reviewed available studies and other documentation.

In analyzing results, we compared each racial and ethnic group and

compared men of all races/ethnicities with women of all races/ethnicities.
In addition to this level of analysis, where there were a sufficient number of
individuals, we analyzed data for men and women within each race and
ethnic group. In analyzing differences in how racial, ethnic, and gender
groups fared in DEA’s hiring process, we used the 80 percent rule set out in
the Uniform Guidelines on Employee Selection Procedures.3 Under this
rule, a selection rate for any race, ethnic, or gender group that is less than
80 percent of the selection rate for the group with the highest rate is
generally considered a substantially different rate of selection. In analyzing
promotion and disciplinary actions, we applied standard statistical tests to
determine if there were statistically significant differences among the
racial, ethnic, and gender groups. We used statistical techniques in these
analyses to be consistent with how other studies of DEA’s promotion and
discipline process were conducted. Our analyses generally covered fiscal
years 1997-2001, except as noted below, and were not designed to prove or
disprove discrimination. Rather, they were designed to provide information
about race, ethnicity, and gender differences in DEA’s hiring, promotion,
and disciplinary actions.

3
The Uniform Guidelines on Employee Selection Procedures, adopted in 1978 by the Equal
Employment Opportunity Commission, the Civil Service Commission (the predecessor
agency to OPM), and the departments of Justice and Labor, provide a uniform set of
principles governing use of employee selection procedures and identifying adverse impact
(29 C.F.R. Part 1607).

Page 48 GAO-03-413 EEO Issues at DEA

 Appendix I
Objectives, Scope, and Methodology

Hiring Results We analyzed the results of DEA’s screening of special agent applicants at
each step of the hiring process on applications received under two vacancy
announcements—BA-98-01, which was open from October 15, 1997,
through March 7, 2000, and BA-20-00, which opened on May 8, 2000, and
remained open during our review. We selected these two announcements to
facilitate an analysis of (1) the effect of changes to eligibility criteria and
written assessment scoring beginning with BA-20-00 and (2) final hiring
rates. We examined DEA’s screening actions on applicants from October 15,
1997, through March 31, 2002, analyzing the data by race, ethnicity, and
gender. Data we analyzed were provided by DEA from the agency’s Agent
Recruiting and Tracking System (ARTS), which tracks applications
received, the status of applicants, decisions on applicant eligibility at each
step of the hiring process, and final hiring decision. We examined ARTS
data and concluded that the data were reliable for our purposes because
the disposition of applications reconciled with applications processed.

With regard to suitability determinations DEA made on applicants based on

the results of psychological and polygraph examinations and background
investigations, we reviewed two sets of data. First, we reviewed data
recorded in ARTS to provide an overall picture on the outcomes of
suitability determinations. Because about 80 percent of suitability
determinations are made by a three-person panel, we reviewed data
maintained by the panel on its decisions. However, because the panel’s
database had only been initiated for decisions on or after September 29,
2000, we only reviewed panel decisions from September 29, 2000, through
May 7, 2002. To gain an understanding of materials the panel considers in
making its determinations, we reviewed a nongeneralizable sample of
applicant suitability determination case files.

Promotion Results Our analysis of promotions focused on competitive promotions to General

Schedule grade levels 14 and 15 special agent positions. We reviewed three
elements of the promotion process: the Special Agent Promotion Program
(SAPP), which uses performance ratings and job simulation exercises to
measure knowledge and abilities to perform at the next grade level;
promotion recommendations that Special Agents in Charge or other office
heads make to the Career Board, the body that makes final promotion
recommendations and whose chair makes the final selections; and the final
selections. We analyzed data by race, ethnicity, and gender. With regard to
the SAPP, we analyzed data contained in annual reports on the SAPP for
1997 through 2001. SAPP results and the reports had been reviewed and

Page 49 GAO-03-413 EEO Issues at DEA

 Appendix I
Objectives, Scope, and Methodology

approved by the Working Group. For recommendations and selections, we

examined actions related to best-qualified certificates for vacancies from
which promotions were made for fiscal years 1997 through 2001.4 We
obtained data from DEA on the number and demographic profile of
applicants on the best-qualified lists, the number of them who received
recommendations, and the number selected. Because applicants can
appear on multiple best-qualified lists, we also obtained an unduplicated
count of the number of applicants on the best-qualified lists and the
number who received recommendations. To check the reliability of the
data DEA provided to us, we compared the minutes of Career Board
deliberations on promotion decisions to data reported to the Monitoring
Committee.

Discipline Results With regard to disciplinary actions, we analyzed data by race, ethnicity, and
gender for cases resolved during fiscal years 1997 through 2001. For these
cases, we determined the number and demographic profile of special
agents against whom allegations of misconduct were made, the disposition
of their cases, and the nature of disciplinary actions taken. However, in
performing our analysis, we found discrepancies between the data
maintained by DEA’s Chief Counsel’s office that were reported to us and the
data the Office of Equal Opportunity reported to the Monitoring
Committee. We brought these discrepancies to DEA’s attention. After some
delay, DEA provided us with corrected data. We performed a limited
verification of the corrected data and found them to be reliable. In addition
to our analysis of disciplinary data, we reviewed the two studies of DEA’s
disciplinary process performed by contractors as well as a report prepared
by the Justice Department. In addition, we reviewed the disposition of
appeals by special agents to the Merit Systems Protection Board.

We performed our work from September 2001 through February 2003 in

accordance with generally accepted government auditing standards.

4
The promotion fiscal year begins October 22 of each year.

Page 50 GAO-03-413 EEO Issues at DEA

Appendix II

Physical Task Test Minimum Requirements AppenIx

di

The minimum requirements in each of the six tasks that applicants for Drug
Enforcement Administration (DEA) special agent positions must meet to
pass the physical task test are shown in table 21.

Table 21: DEA Physical Task Test Minimum Performance Requirements

Task Women Men

a
Trigger pull 29 pulls of a handgun trigger in same
30 seconds with stronger hand
Pull-ups (number) b 10 2
Sit-ups (number 46 46
within 2 minutes)
Push-ups (number) 14 25
120-yard shuttle run No longer than 29 seconds No longer than 26 seconds
2-mile run No longer than 18:45 minutes No longer than 16:30 minutes
Source: DEA.
a
Eliminated in March 2003.
b
The pull-up test for women is performed using a horizontal bar mounted 3 feet from the floor and 2
feet from the wall. A woman begins the pull-up lying on her back. The pull-up test for men is performed
using a horizontal bar mounted above the floor and out-of-reach of the subject. A man begins the pull-
up hanging from the horizontal bar.

Page 51 GAO-03-413 EEO Issues at DEA

Appendix III

Competencies in Assessing GS-13 and GS-14

Special Agents for Promotion Appen
Ix
di

Performance Rating In the Special Agent Promotion Program (SAPP) performance rating,
General Schedule (GS) grade 13 special agents are evaluated on seven
Competencies for competencies and GS-14 special agents are evaluated on eight
GS-13 and GS-14 competencies, as table 22 shows.
Special Agents
Table 22: Performance Rating Competencies for GS-13 and GS-14 Special Agents

Competencies rated
Competency GS-13 GS-14
Written communication X
Acting as a model X X
Gathering information and making judgments/decisions X X
Interacting with others X X
Monitoring and guiding X X
Oral communication X X
Planning and coordinating X X
Mentoring, developing, and evaluating others X
Persuading X
Source: DEA Promotion Ratings Scales Booklets for GS-13 and GS-14 special agents.

Competencies In 2001, GS-13 special agents were evaluated on 12 competencies in SAPP

assessment center simulations, while GS-14 special agents were evaluated
Measured by on 9 competencies, as table 23 shows.1
Assessment Center Job
Simulations

1
Competencies were unchanged during the 1997-2001 period, except for the 1997 GS-15
SAPP, which included the competency “ability to allocate resources.”

Page 52 GAO-03-413 EEO Issues at DEA

 Appendix III
Competencies in Assessing GS-13 and GS-14
Special Agents for Promotion

Table 23: Competencies Measured by Assessment Center Job Simulations in 2001

Competency GS-13 GS-14

Ability to communicate in writing X X
Ability to communicate orally X X
Ability to expand case to fullest potential X
Ability to evaluate and develop subordinates X X
Ability to integrate information and draw conclusions X X
Ability to delegate X X
Ability to recognize and establish evidence X
Ability to effectively utilize cooperating sources X
Ability to organize, plan, and prioritize activities X X
Ability to coordinate and monitor work X
Ability to plan and coordinate enforcement operations X
Ability to relate effectively with others X X
Knowledge of DEA manuals, policies, and procedures X X
Source: 2001 SAPP report.

Interim Special Agent The interim recommendation process, which was implemented in January
2000 and was still in place as of December 2002, requires that a special
in Charge/Office Head agent in charge (SAC) or office head, when making promotion
Recommendation recommendations to the Career Board, provide information about the
personal characteristics, traits, or attributes that make a candidate better
Process suited to the position under consideration and how a candidate’s past or
present experiences or demonstrated success makes him or her a top
candidate. The latter requirement covers seven specific areas:

• directing enforcement and/or investigative-related programs;

• managing, motivating, and mentoring subordinates;

• working in a team environment;

• working individually;

• managing agency resources;

• building and maintaining coalitions; and

Page 53 GAO-03-413 EEO Issues at DEA

 Appendix III
Competencies in Assessing GS-13 and GS-14
Special Agents for Promotion

• acquiring or possessing technical knowledge, education, and special

skills, or training peculiar to or required by the position.

Proposed SAC/Office Among the changes under a proposed recommendation process are that
applicants for promotions would be asked to provide a summary of their
Head Recommendation major accomplishments and how they are best qualified for the position
Process applied for, including technical knowledge, education, special skills, or
training specified in the vacancy announcement, and provide a narrative
describing their achievements in the following competencies:

• directing enforcement and/or investigative-related programs or other

appropriate managerial experience in a law enforcement setting;

• managing, motivating, mentoring, and/or training personnel;

• working in a team environment of mutual cooperation and assistance;

• building and maintaining coalitions with other personnel and entities

internal and external to the agency; and

• for applicants for GS-15 positions, managing agency resources.

Page 54 GAO-03-413 EEO Issues at DEA

Appendix IV

Comments from the Drug Enforcement

Administration Appen
V
Id
xi

Page 55 GAO-03-413 EEO Issues at DEA

Appendix IV
Comments from the Drug Enforcement
Administration

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Appendix IV
Comments from the Drug Enforcement
Administration

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Appendix IV
Comments from the Drug Enforcement
Administration

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Appendix IV
Comments from the Drug Enforcement
Administration

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Appendix IV
Comments from the Drug Enforcement
Administration

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Appendix IV
Comments from the Drug Enforcement
Administration

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Appendix IV
Comments from the Drug Enforcement
Administration

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Appendix IV
Comments from the Drug Enforcement
Administration

Page 63 GAO-03-413 EEO Issues at DEA

 Appendix IV
Comments from the Drug Enforcement
Administration

(450059) Page 64 GAO-03-413 EEO Issues at DEA

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