The Employment Service is bound by the Constitution, the Civil Rights Act, 10/ federal regulations 11/ and DOL directives not to discriminate against minorities in the provision of services. In 1969, the Office of Equal Opportunity in Manpower Programs reported to Congress that more than 80% of its Title VI compliance work involved the Employment Service; after a review of approximately 6% of the local ES operations, discriminatory practices were discovered in 75-80% of the programs.12, The ES staff has for the most part been brought into compliance with the ban against direct, overt racial discrimination (although apparently discriminatory requests, made orally and left unrecorded, are honored in some states), but severe discriminatory results persist. Minority placements continue to cluster in menial, low-paying categories, as is shown in Table E. - The ways in which the ES abets or, by acquiescence, encourages employer discrimination are subtle, and often - unintentional. • A member of the Texas Human Relations Commission complained that ES employees cover themselves while continuing to cater to employers' bias, by referring some blacks to decent jobs, but never without two or three white referrals for the same opening. A lawsuit in Alabama charges the ES with consistently directing black people into institutional training while sending white applicants with identical qualifications into on-the-job training, for which a full-paying job is more likely to be available at the end of the preparatory period.13/ The Department of Justice charged the Ohio ES with systematically referring whites to desirable jobs out of turn, ahead of similarly qualified black applicants.14/ In 1968, the EEOC found reasonable cause to believe that the Shreveport, Louisiana ES was guilty of "failing to refer qualified Negroes to jobs other than those of a domestic or menial nature," 15/ echoing the observations of Seattle legal service attorneys and a Harlem Model Cities official that the ES manpower product is too often simply a cheap pool of minority workers to fill the jobs nobody wants. (This is the most common characterization of the functions of the Farm Labor Service, but similar criticisms of certain urban onthe-job training projects, and the JOBS program, are also widespread.) -70 A number of routine ES procedures also contribure to its unsatisfactory record in serving minorities. Among these are: job classification, testing, local office organization and inadequate enforcement of employer obligations. 3. Classification: We have described the ES job classification problems on page 43. The Civil Rights Commission Study accused the ES of persistent "under-coding", that is, assigning minority applicants "lower skill ratings than their education, job record, or experience would otherwise indicate." 16/ Because classification is too often performed mechanically, by bureaucratic personnel applying rigid standards in the same way that they have been doing for 30 years, it is likely that under-coding also results from the inadvertent overemphasis upon such formal qualifications as facility in an oral interview or education and previous job experience, and from an inability to perceive or relate other personality characteristics to job potential. Where an individual's capabilities have been expressed in a cultural context foreign to the ES counselor, they may go unnoticed. 4. Testing. Section 703 (h) of the Civil Rights Act of 1964 permits an employer "to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate. . . The development of tests that can be administered in such a way as to exclude cultural bias has proven extremely difficult, and the Employment Service has reduced its previously heavy reliance on written tests. Nevertheless, a broad range of tests, measuring general aptitude, special aptitude and proficiency at particular skills, are given to many applicants, and written examinations are still a significant factor in determining job classification and job referral. Overall, 1.8 million written tests were given in 1969, to an undetermined number of that year's 9.9 million new ES applicants. In Alabama, a lawsuit charges the ES with using tests the way voting registrars used to use literacy tests making black applicants take them, but not giving them to white applicants for similar jobs. 17/ - The EEOC has promulgated Guidelines for acceptable employment testing, which require specific empirical demonstration of the validity of a test (as defined in the Guidelines) before it can be used.18/ On December 31, 1970, applying these criteria, the EEOC found that "the use of the GATB (General Aptitude Test Battery) and certain other pre-employment tests results in rejection of a disproportionate number of minority group job applicants" and that the use of that test series for most applicants "discriminates against Negroes as a class be cause of their race."19/ Earlier, the U. S. district court in Boston had found that the use of the GATB to select applicants for jobs such as bus drivers resulted in illegal racial discrimination.20/ The General Aptitude Test Battery was developed by the Employment Service in the 1940's and has been distributed widely by it for use by schools, employers and others. In 1969 it was given to more than 532,000 applicants. On March 8, 1971, the United States Supreme Court ruled that section 703 (h) of the Civil Rights Act of 1964 permits only such testing as is directly related to the individual's competence for the specfic job sought, and that general ability tests may not be used to exclude minorities-- regardless of the employer's nondiscriminatory intent unless the direct relationship between test performance and job performance is proven. Griggs v. Duke Power Co., 39 L.W. 4317. This decision should stimulate a careful review of the uses to which routine ES test results are put, as well as thorough examination of the testing done by the ES at the request of employers. U.S. The continued reliance on written testing is a clear example of the persistence of the various state agencies in following their own policies, rather than the directives of DOL. The states surveyed for this study had widely contrasting attitudes towards tests. In Michigan testing has been largely eliminated, except for typing and shorthand, while North Carolina reported no substantive changes had been made either in the types of applicants tested or in regulations concerning use of tests. The Texas ES declared that many employers still require results of written testing, so written testing will continue. The Employment Service is now placing greater emphasis on practical job effectiveness trials that do not simply measure cultural experience. Some states have introduced pretest preparation sessions, to screen those applicants for whom a written test would not be appropriate and to prepare others for taking the test. A Spanish language version of the GATB, developed in Puerto Rico and in use there for several years, may be free of some of the deficiencies found in the test versions condemned by the EEOC (if it is sufficiently flexible to be used for Mexican-Americans as well). In February, 1971, the Labor Department announced introduction of a Nonreading Aptitude Test Battery, "oriented particularly toward disadvantaged job applicants with limited literacy achievements. "21/ DOL will conduct special training sessions and prepare detailed materials on the administration of the NATB. Its ultimate effectiveness will, like other DOL reforms, depend on the extent to which it is accepted by local staff. 5. Office Organization. We have referred earlier to the fact that in cities where there is no central listing of job openings, ES offices in inner city neighborhoods tend to get inferior listings, and only have access to "stale" listings from other offices. Separate offices for separate classes of jobs are still the predominant pattern in some big cities and it has frequently been observed that the minority clientele of the offices increases as the quality of the jobs listed goes down: virtually the only applicants to be found at Manhattan's center for domestic and service workers are blacks and Puerto Ricans. Until Job Banks or some other form of disseminating current listings is more widely instituted, employers in most cities will be able to choose the race of their ES referrals by choosing the office with which to list their openings. 6. Inadequate Policing: Employer Follow-up. Section 1294 of the Employment Security Manual, revised and made more stringent in 1967, sets forth procedures for dealing with employers suspected of discrimination: referral records must be spot-checked periodically for any apparent discriminatory hiring practices, and the records of employers suspected of discrimination must be closely followed; the ES must refuse to serve employers who place discriminatory referral orders or who refuse to give assurance of future non-discrimination; any discriminatory job specifications must be reported to the appropriate equal opportunity enforcement agency. Beginning in 1969, the local offices were ordered to transmit figures on minority group applications, referrals and placements to Washington for further scrutiny. These procedures have been largely ignored. At the hearings on the Comprehensive Manpower Bill of 1970, Senator Nelson inquired of Mr. Green, Director of the New York State ES, who was testifying on behalf of the Interstate Conference of Employment Security Agencies (ICESA) 22/: "Could you tell me how many Employment "Mr. Green: I would make what I think 76-736 72 - pt. 2 - 13 |