By Alicia Martinez
DISCLAIMER: The author is an employee of the U.S. General Services Administration. The content and views expressed in the article are the author’s alone and do not reflect the official policy or position of the U.S. General Services Administration or the U.S. government.
The Senior Executive Service (“SES”) is the executive management corps of the federal civil service. The SES program was established through the Civil Service Reform Act of 1978, and SES executives have served throughout the government in key positions directly below politically-appointed leadership. Since its inception in 1978, the SES has become one of the most vital components of the federal government. SES executives have a broad understanding of government functions and are committed and well-prepared to serve the American taxpayer. The SES program is managed by the U.S. Office of Personnel Management (“OPM”). OPM has the authority to oversee the development of the SES corps and assist agencies to cultivate, choose, and manage SES executives.
Despite the value this elite corps of civil servants provides, the SES continues to fall short of an appropriate reflection of current federal workforce demographics. According to a 2016 OPM report, the federal workforce is comprised of 36.4 percent of employees who identify as members of a minority group and 63.6 percent of employees who identify as white. In comparison, only 21.2 percent of SES corps members identify as members of a minority group while 78.8 percent of SES corps members identify as white. Regarding gender diversity, only 35.3 percent of SES corps members are women while women make up 43.2 percent of the federal workforce.
OPM made several of attempts to increase racial and gender diversity in the federal workforce through a variety of optional guidance and tools. One such tool is the 2016 Governmentwide Inclusive Diversity Strategic Plan, which provides federal agencies with a plan to “create and foster a Federal workforce that includes and engages Federal employees and draws from all segments of society.” These initiatives, while well-intentioned, fall short, and OPM has failed in the development, hiring, and retention of highly skilled minority SES members. To alleviate this gender and racial disparity, OPM could promulgate regulations or support executive and congressional actions directed at increasing the percentage of minority group and women represented in the SES corps. While guidance and resources are a great supplement to promote diversity and inclusion programs throughout the federal government, OPM is poised to create more lasting and binding change through the promulgation of regulations aimed at reforming the SES.
Federal civil rights laws mainly prohibit discrimination in hiring, promotion, and firing as a result of employees’ membership in a protected class. There have been a number of court cases setting the parameters for the use of affirmative action programs to increase diversity in private and public employment in compliance with such laws. In United Steelworkers v. Weber, the Supreme Court held that Title VII generally does not allow for race-based hiring decisions but would allow for “affirmative action plans designed to eliminate conspicuous racial imbalance in traditionally segregated job categories.” In Johnson v. Transportation Agency, Santa Clara County, the Court held that it was not unreasonable to consider sex as one factor among many in making promotion decisions as long as 1) it was not the sole deciding factor and 2) the consideration did not create an absolute barrier for men to receive the promotion. These two cases support the existence of race or gender-related affirmative action plans as long as these plans are appropriately tailored and do not create situations of discrimination in violation of Title VII and its subsequent regulations. As such, OPM can promulgate regulations that promote the recruitment of employees from diverse applicant pools and focus leadership development opportunities to promote SES development among diverse employees. This use of employee development strategies should fall within the admissible rulings for Title VII affirmative action programs as long as the regulation is crafted to withstand the thorough rulemaking process and requirements of the Administrative Procedure Act. However, OPM will still need to exercise caution to “avoid legal claims by employees who claim to have been disfavored or excluded by such programs.” The robust rulemaking process that OPM’s regulations will need to pass through will help ensure that these regulations fall within the statutory parameters of Title VII and its accompanying regulation
While diversity in the SES increased slightly during Barack Obama’s presidency, it is unlikely that this trend will continue under Donald Trump’s presidency, as suggested by the lack of diversity in recent judicial nominations and executive branch appointments. To advance the federal workforce as a whole, increasing the diversity of the SES corps should be viewed as a non-partisan issue that will strengthen federal agencies. Due to OPM’s authority to reform the SES and bridge the gap in current SES demographics, OPM should work within the confines of Title VII and promulgate regulations aimed at increasing racial and gender diversity within the SES.
 U.S. Office of Pers. Mgmt., Senior Executive Service: Leading America’s Workforce, https://www.opm.gov/policy-data-oversight/senior-executive-service/ (last visited Oct. 17, 2018).
 See Civil Service Reform Act of 1978, 5 U.S.C. § 3131 (2018).
 Id. at §§ 1101, 3131 (creating the Senior Executive Service and the U.S. Office of Personnel Management).
 See Joe Davidson, Latest Federal Diversity Report from OPM Shows Little or No Progress and Some Regression, Wash. Post (Apr. 2, 2018), https://www.washingtonpost.com/news/powerpost/wp/2018/04/02/latest-federal-diversity-report-from-opm-shows-little-or-no-progress-and-some-regression/?utm_term=.13d2b565e5bc.
 U.S. Office of Pers. Mgmt., Federal Equal Opportunity Recruitment Program (FEORP) Report to Congress: Fiscal Year 2016 1 (2018).
 See U.S. Office of Pers. Mgmt., Governmentwide Inclusive Diversity Strategic Plan 1, 3 (2016) (developing a roadmap for the implementation of a governmentwide diversity and inclusion plan established by Executive Order 13583).
 See Davidson, supra note 6.
 See Civil Service Reform Act of 1978, 5 U.S.C. § 3131 (2018) (creating the Office of Personnel Management and its statutory authority to create regulations).
 See generally Title VII Civil Rights Act of 1964, 42 U.S.C. § 2000e (2018); Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 (2018); Americans with Disabilities Act, 42 U.S.C. 12101 (2018); Uniform Services Employment and Reemployment Rights Act, 38 U.S.C. 4301 (2018); Genetic Information Nondiscrimination Act, 42 U.S.C. 2000ff (2018).
 See also Taxman v. Bd. of Educ., 91 F.3d 1547, 1555 (3d Cir. 1996); Ricci v. DeStefano, 557 U.S. 557, 629-32 (2009) (continuing to set the Title VII parameters for allowing of affirmative action-related gender and racial diversity employment programs).
 443 U.S. 193, 209 (1979).
 480 U.S. 616, 620 (1987).
 New York City Bar Comm. on Labor & Emp’t, Employer Diversity Initiatives: Legal Considerations for Employers and Policymakers 1, 16 (2012).
 See Administrative Procedure Act 5 U.S.C. § 553 (creating the requirements and procedures of the informal rulemaking process).
 New York City Bar Comm. on Labor & Emp’t, supra note 17, at20.
 See Joe Davidson, Latest Federal Diversity Report from OPM Shows Little or No Progress and Some Regression, Wash. Post (Apr. 2, 2018), https://www.washingtonpost.com/news/powerpost/wp/2018/04/02/latest-federal-diversity-report-from-opm-shows-little-or-no-progress-and-some-regression/?utm_term=.13d2b565e5bc (citing a USA Today article stating that 92 percent of the individuals who have received judicial nominations under President Donald Trump identified as white).