Sunday, May 17, 2015

Trend Analysis: The State's Record on Civil & Disability Rights



Click here to download a pdf version of this article (tagged for screen readers).

This article reveals seven embarrassing facts about how the state of California treats its civil servants with disabilities, or those who are members of race groups historically targeted for exclusion and discrimination. 

State data was used to calculate yearly within-group percentages for the 10 most recent years (2004 to 2013). (endnote #1) Analysis shows:
  • In all 10 years the rehiring rate was highest for White state workers.
  • In all 10 years the promotion rate was highest for White state workers.
  • In five of the six most recent years the hiring rate was highest for White state workers.
  • In all 10 years the hiring rate was lowest for people with disabilities.
  • Ninety nine (99) state organizations have not used the state's employment program for people with disabilities a single time in the 25  years of its existence.
  • The state's count of workers with disabilities has steadily increased each year in spite of the fact that the hiring of people with disabilities decreased 59% from 2009 to 2013.  This and other evidence suggest the state is reclassifying some current employees, now calling them "disabled", perhaps because they started to wear glasses.
  • The hiring rate for persons with disabilities under age 30 is the lowest of all disabled age groups, decreasing 69% in the last seven years.  
This article also reveals some of the operational mechanics by which race and disability discrimination are carried out.  These were disclosed by whistle-blowers, most of whom hold high ranking positions in state government.  At great personal risk for retaliation, these revelations explain methods of discrimination used by departmental directors, EEO officers, state attorneys, CEO's, and unit managers.

Trend analysis was used to re-examine the most recent 10 years data (2004 to 2013), on the state's employment of people with disabilities, and groups historically subjected to racist exclusion.  Trend analysis is a strong antidote to percentage statistics based interpretive speculation, of the type that can accompany the state's analysis of its own civil and disability right performance.  Use of trend analysis is essential if one is to make full sense out of these data.

An example show why the use of trend analysis is essential.  2005 and 2006 Annual Census data suggests a desirable fact: The rate of promotion of Black people increased.  However, such a claim would be misleading.  See the figure below (click here for the data).
  • Side by side comparison of Disabled, Asian, Black, Hispanic, and White state workers (endnote #2) shows promotion rates for all five groups increased in 2005 and 2006, with Black workers having the lowest rate of increase. 
  • Trend analysis for the period 2004 to 2013 shows the promotion rate for Black state workers was, for seven of these 10 years, the lowest of the five groups.  
 

Three figures below enable side by side trend analysis over the 10 year period 2004 to 2013.

Click here to download the tables used to create the figures seen below (tagged).
  • From 2004 to 2006 the hiring rate was highest for Asian and Hispanic, followed by Black and White. 
  • In 2007 a hiring  freeze reversed the hiring curve, to head downward.
  • From 2008 to 2012 the hiring rate was highest for White, followed by Asian, Black, and Hispanic. 
  • In 2011 hiring resumed, reversing the curve to head upward again.
  • In 2013 the hiring rate was highest for Black, followed by Asian and White, then Hispanic. 
  • The hiring rate for Disabled was the lowest for all groups, substantially so, for the entire 10 year period.


  • For the entire 10 year period, the rehiring rate for White was highest.
  • This was followed by Hispanic, then Black, then Disabled.
  • For the entire 10 year period, the rehiring rate for Asian was lowest.









  • For the entire 10 year period, the promotion rate for White was highest.
  • This was followed by a close mix of Asian, Hispanic, and Disabled.
  • For 7 of the 10 years, the promotion rate for Black was lowest.
If current EEO law was being followed, the trends seen above would not be observed.  

In 2005 Assembly Bill 124 (Dymally) created 43 EEO related mandates, including:  

1. On a yearly basis, each department and agency shall develop, or update, an opportunity plan that identifies race, ethnic, and gender data for each job category.  It shall explain these levels, and identify specific actions to remove non-job related barriers that prevent equal access to these jobs (CGC 17977).

2. Departmental directors and agency secretaries shall issue procedures to insure equal promotional opportunities (CGC 19794(c)).

3. Departmental directors and agency secretaries shall insure that the EEO Officer of their department or agency develops, implements, coordinates, and monitor's the department's EEO program (CGC 19795(a)).

4. Department EEO Officers shall monitor the composition of oral panels in departmental or agency examinations (CGC 19795(a)).

5. All managers and supervisors shall take positive action necessary to ensure and advance equal employment opportunity at their respective level (CGC 19796).

6. Division or Bureau Chiefs are accountable for the effectiveness of the EEO program in their division or bureau (CGC 19796).

7. The SPB shall review and evaluate the EEO programs of each state agency to insure they comply with state and federal laws and regulations (CGC 19792(d)).

8. The SPB shall establish programs to ensure equal employment opportunities for all state job applicants, and employees, through broad and inclusive recruitment efforts (CGC 19792(e)).

9. The Legislature shall evaluate the EEO efforts of state agencies during budget negotiations (CGC 19793).

In spite of these laws, as the data in Table 1 and the trend lines in Figure 1 demonstrate, the plans of individual state organizations, Directors, and EEO officers don't appear to be very effective.

The employment situation for people with disabilities is the worst of any group.  Nationally the unemployment rate for workers with disabilities is 86% higher compared to non-disabled workers (endnote #3)  California has the highest number of people with disabilities in the U.S. (endnote #4) and one of the lowest rates of employment for those who are disabled (endnote #5) 





In California people with disabilities face severe discrimination when seeking work; essentially, they face compulsory unemployment (endnote #6).  Recognizing this, in 1989 the State of California developed an alternative hiring process for workers with disabilities, called the Limited Examination and Appointment Program (LEAP).  LEAP can be used in place of the civil-service appointment process, when hiring workers with disabilities (endnote #7).    


In 2000 the State Personnel Board established a minimum rate of employment for workers with disabilities, at 16.6%.  This so-called "parity number" applies both to the state as a whole, as well as to each of its individual organizations (endnote #8).     

Disabled Hiring v. Reclassification v. Parity Mandate of 16.6%


In the figure above, created from state data, the state provides an impossible condition with regard to the hiring of people with disabilities:
  • The percentage of new hires who are disabled is decreasing (red line).  It plummeted 59% in the last five years, from 7.2% in 2009 to 3.0% in 2013.
  • The percentage of the state workforce reported as disabled is increasing (purple line).
How does one hire less PWD's, and have more PWD workers?  To do so the state may be engaging in two questionable counting practices.

The first questionable practice is to include re-hired workers who have disabilities in the total hiring count.  For example, the 2013 Annual Census reports hiring 824 people with disabilities.  A check of the 5112 table shows 331 new hires and 411 rehires, meaning less than half of the disabled hiring figure actually represents new hires.  Because one would reasonable expect rehires to be brought back because of job skills, including these rehires in a count disabled hiring seems improper.

The second questionable practice takes advantage of the natural fact that as non-disabled people get older they acquire disabilities simply as a function of aging.  In other words they develop the need for glasses or hearing aids, or they experience the onset of diabetes--simply because they are aging. 

The inconsistencies of the state's hiring and counting of PWD's is further evaluated in another edition of this blog (click here).

  • The age 50 and over PWD count has increased every years since 2007.  This is consistent with  starting to count long time workers as disabled, simply because they aged into a disability.  This could explain the increase in the state's count of "disabled" workers.
  • The under age 30 count has decreased 68% since 2007.  This is consistent with the state substantially decreasing the hiring of PWD's. This is the most severely impacted of the four age groups (the decrease for 40-49 is 10%).

As noted, the LEAP program was created more than a quarter century ago to help people with disabilities get a job with the state (endnote #10).  Yet, as the figure below demonstrates, very few of the few people with disabilities hired by the state each year come through the LEAP program.  Notice that although the number of hirings of people with disabilities through the LEAP program has increase the last three years, overall the number of PWD's hired has dropped significantly since 2007.

Percent of People With Disabilities Hired By The State of California, LEAP v. Non-LEAP (2003-2012)

To their shame, 99 state organizations have not used the LEAP program a single time since its inception 25 years ago, the hall of shame including:
  • Health and Human Services Agency
  • Fair Employment & Housing Commission
  • Little Hoover Commission
  • State Public Defender
  • Cal EPA
  • Department of Business Oversight
  • Agricultural Labor Relations Board
  • Exposition & State Fair
  • Lands Commission

 Download the table with the data used to create this figure, click here.

A list of all 99 state organizations can be downloaded here.  Read about the four LEAP methods of hiring by clicking here.

Recognizing the widespread failure of state organizations to use the LEAP program, or to implement the disability parity mandate of 16.6%, in 2005 Governor Schwarzenegger signed  Executive Order S-04-05.  (click here to read).

That order compels state organizations to take three actions:
  • End discrimination against qualified individuals with disabilities.
  • Comply with existing hiring laws, annually review compliance efforts, consult with their disability advisory committees (DAC's), and take action to end non-job related employment barriers that inhibit workers with disabilities from being hired.
  • Utilize the LEAP program to fill vacancies.
The state's own data demonstrates that equal employment opportunity efforts by state organizations in the most recent 10 years have been insufficient.  The tables and figures presented in this report show this to be true.

Essentially, Disabled, Asian, Black, and Hispanic
state workers still occupy a second class status in
the California state workforce

This is not to say that individual state organizations have not improved their equal employment opportunity record, because some of them undoubtedly have.  Rather, this to say that any such gains are offset by other state organizations who take no action to implement EEO laws and processes, or to put a stop to discriminatory hiring and promotion practices.  Thus, in total, as its own data demonstrates, the state is failing to insure fair and equal treatment of all of its employees and job applicants. 

Consequently, it is believed legislation alone will not cause the state to take the action needed to right these inequalities.  This is true because legislation with EEO mandates already exist, e.g., AB 124 (2005, Dymally), and are simply not being followed.

When laws are ignored, typically audits and penalties are necessary to compel adherence.  Penalties force speeders to slow down.  Penalties force athletes to follow the rules of their sport.  Penalties force tax cheats to cease dishonest practices.  So also, it is believed penalties are needed to force state organizations to follow existing EEO law. 

Recently the state took a step in the right direction, with the creation of the Compliance Review Unit (CRU) at the State Personnel Board (SPB).  This unit released its first audit report in October, 2014 (click here to download).  The CRU audited 97 state organizations, reporting slightly more than half had one or more violations.  Of these, 75% had at least one serious, or very serious violation, to include:
  • The EEO officer did not report to the organizational head.
  • The organization did not have a disability advisory committee.
  • Job analysis were not completed before administration of examinations.
  • Documentation related to job examinations were not being kept for the appropriate amount of time.
  • Documentation related to appointments were not being kept for the appropriate amount of time.

CONCLUSIONS

The great recession of 2008 can no longer be used as an excuse to make painful cuts, or put aside important agendas such as the employment of Californians with disabilities, or EEO fairness for all.  It is the author's personal conviction that the state has an affirmative duty to preferentially hire sufficiently qualified people with disabilities as an offset and antidote to documented high levels of hiring discrimination these people face in the private sector.

The state has been caught with its pants
down, and its pants are on fire
  • The state is creating an illusion of caring for, and employing Californians with disabilities; yet, with few exceptions there is very little hiring of PWD's going on.
  • The LEAP program, and its dedicated staff cannot rectify the state's long time disregard for the employment of people with disabilities alone.
  • The state claims to support equal access to jobs and promotions for people of all races; yet, the last 10 years data shows convincingly people of color aren't hired or promoted as often.
  • High ranking whistleblowers illuminate the ways that state attorneys, EEO officers, and organizational directors flaunt the law, and break it, essentially doing what they want with regard to hiring, promotion, and the suppression of EEO discrimination claims.

RECOMMENDATIONS

The state can and should improve its equal employment opportunity record.  Based upon the findings of this present report, five recommendations are offered, intended to improve the state's EEO performance.

Recommendation #1

The Legislature is urged to act upon the mandate found in California Government Code §19793, which states in part "The Legislature shall evaluate the equal employment opportunity efforts of state agencies during its evaluation of the Budget Bill."  
  • Organizational directors should be required to demonstrate an understanding of the 43 laws created or modified by AB 124.
  • Organizational directors should be required to commit to an accelerated use of all four LEAP hiring methods, and to outline a specific plan and timetable for doing so.
  • The yearly evaluation of organizational directors and agency secretaries under the supervision of the governor should include quantitative analysis of their organization's performance in the areas of EEO rights and protections, including hiring and promotion, and also the accelerated, preferential hiring of people with disabilities.

Recommendation #2

The Bureau of Audits is urged to act upon the notice provided to them by way of this report, to begin to investigate state organizations who have failed to use the LEAP hiring process, or who have insufficiently insured equal employment opportunity for their workers, or the individuals who apply to them for a job. 

Recommendation #3

Both the SPB's Compliance Review Unit, and the Bureau of Audits are encouraged to adopt the use of trend analysis as a primary, strong auditing and investigation tool.  With little effort they can create trend tables and figures of the type demonstrated in this report, doing so for each state organization.  These can be constructed using data provided in the Annual Census, 5102, and 5112 reports from the last five or 10 years.

Recommendation #4

A single state official should be given the designation of State Equal Employment Opportunity Officer.  The duties of the office should include a mandate to insure that state organizations follow equal employment opportunity laws, and work quickly to affirmatively hire qualified people with disabilities.  The state's EEO officer should be held personally responsible for outcomes of each state organization, and also their aggregated sum.  Both CalHR and the SPB fall under the newly created Government Operations Agency; therefore, it seems logical to recommended the Secretary of Government Operations be designated the state's EEO Officer.  The state's EEO Officer's performance should be judged using the same criteria listed in recommendation #1 (above).

Recommendation #5

A joint Assembly and Senate EEO advisory commission should be established to create a list of action points for the state's EEO Officer to act upon.  These should be published on the Government Operations website with target dates, with periodic progress updates posted.  In addition to representatives from legislature and governors office, at a minimum those stakeholder groups who should be included are:  

Please cite this blog as: Nelson, Eric L. (2015).  Trend Analysis: The State's Record on Civil & Disability Rights.  Trends in State Work, http://trendsinstatework.blogspot.com/2015/05/trend-analysis-states-record-on-civil.html


ENDNOTES

(1) Note: Within-group percentages are not influenced by how small or big a group is.  

(2) Regretfully it is combine distinct ethnic groups into one of four race categories.  The rationale for doing so is explained in Problem #5 of this blog (click here).

(3) As of June 11, 2014 the unemployment rate of non-disabled people is 7.1%, and for disabled it is 13.2%.  Therefore, ((13.2 / 7.1) -1) * 102 = 86%.  Data from: U.S. Bureau of Labor Statistics, News Release June 21, 2014, USDL-14-1076. 

(4) United States Census Bureau (2010).  Disability among the working age population: 2008 and 2009.  Washington, D.C.: USCB.

(5) Erickson, W., Lee, C., & von Schrader, S. (2014). 2012 Disability Status Report:
California. Ithaca, NY: Cornell University Employment and Disability Institute(EDI).  See table "Employment: Ages 21-64", p. 8.  There are only 13 states with higher rates of unemployment, for people with disabilities.

(6) Russell, Marta (2002).  What disability civil rights cannot do: Employment and political economy.  Disability & Society 17(2):117-135.  See p. 21.

(7) LEAP manual, section 1.1.  Click here to retrieve a copy.

(8) 2012 Annual Census, p. 15.

(9) In actuality, about 41% of EEO complaints that can be classified can be seen to favor the employee.  Click here to read a blog with the facts that disprove the EEO officer's claim.

(10) It is important to give special recognition to Jerry Gibbins, the current manager of the LEAP program at CalHR, for his tireless devotion to the goal of helping people with disabilities gain a state job.  These data show that even with a tireless leader, there is only so much one person or program can do without the consent and enthusiastic support of the leaders of each state organization, as well as the secretary of Government Operations and also the Governor.
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