Rank and Yank / Forced Distribution–Dick Grote: Giving Advice on Bad Reviews—Agree with Poor Rating

[Note:  This blog has covered Dick Grote’s wicked “rank and yank” program previously.]

Dick Grote has authored another article on “rank and yank,” “What to do when you think your performance review is wrong” (published in the Harvard Business Review (March 7, 2017)). This time the defense of the system is indirect—informing the recipient of a “C-Bucket” rating to accept it. Indeed, as Grote states in the article, nothing the employee argues against the rating is likely to change it.

Indeed that is true in the rank and yank process. The decision made in the calibration meeting for managers is final. Those in the C-Bucket receive negative ratings in order to convince them to quit.

Bucket (rank)

Percentage [“vitality curve”] (amounts can be adjusted)




Lavish rewards, encouragement



Little to paltry increase



Pressure to quit, firing

Because of the calibration meeting, where managers rank employees, changing a rating means changing it for others, given that rank and yank is a rigid, inhuman, and employee-abusive system.

Artist: Michael Sloan

A key Grote quote:

“But what if a company’s forced ranking procedure, honestly and objectively done, reveals that the blacks or women or disabled employees just aren’t as talented as the white ones? Should they do what some Harvard professors are said to do and award A’s to all the blacks, just to keep them from squawking?” (Grote, page 4 (a quote from a previous post). (Note: Consider this statement from Grote with the ever-present and persistent legacy of slavery and Jim Crow subjugation in the United States of America.)

Grote offers three options for an employee facing an unacceptable performance rating:

  • Accept the rating (Grote preferred).
  • Disagree with the rating (Grote disfavored this option because the manager is invested in the rating, errors look bad on the manager (rather interesting an aggrieved employee must defend unacceptable management behavior, while the employee is expected to satisfy any whim of the manager).
  • Quit (Grote advises for people who get c-bucket ratings to go on a “decision-making” leave to decide either to attempt to fulfill the impossible to meet expectations or quit. The resignation of the employee is the ultimate goal.)

While Grote thinks managers should be given absolute authority in performance appraisal, the personnel record is the property of the employee. The employee has the right to state what is allowed in that property; hence, the reason why employees must sign reviews. The company merely has possession of the employee’s property—the contents of the file.



General Accountability Office: The So-Called Performance Audit Is a Weak Analytical Tool; Continued Use Is Offensive to the Taxpayer

The General Accountability Office (GAO), one of the legislative agencies, produces so-called performance audit reports on governmental operations. If these reviews were limited to the strengths of accountants and auditors–financial statements and financial records–the agency would do well.

When accountants and auditors venture into non-financial operations and dare to offer opinions through so-called performance audits, the weakness of the agency is made manifest. This weakness leads to damaging, reckless, and information-free yet jargon-filled reports. (Note: I have found similar results with some reports of some Inspectors General offices.)

Performance audits evaluate evidence against stated criteria, such as specific requirements, measures, or defined business practices. This definition of performance auditing is consistent with international auditing standards.

The Washington Post published two exasperating columns based on this flimsy GAO report, GAO-16-520R, Federal Workforce: Distribution of Performance Ratings Across the Federal Government, 2013.

The GAO report writers stated on page 1 and 2 that Senator Ron Johnson (R-Wisc.) asked the GAO to review the performance management systems across the 24 Chief Financial Officer Act agencies. (See Pub. Law. 101-576, sec. 5.) The GAO’s “review” approach was to complete a performance audit listing the results of the implementation of the agencies’ performance management systems, specifically how many employees got each rank level.


This methodology made the resulting report useless, uninformative, and damaging to civil service employees burdened with unfair ratings, managers, agencies or any combination of the previous three factors. Notably, the report failed to do the following, at a minimum:

  • The structure of each of the agencies’ programs were not reviewed.
  • The evaluation as to how the agencies programs satisfied the merit principles was not done.
  • The academic research reviewing performance management is nowhere in the report.

The agency goes through great effort to support the status quo and uses only its own research to support its findings. This error is produced by the myopic methodology for the report.

The methodology is the most important part of any GAO report as it governs the method that the report would be put together. However, it also is the greatest weakness of the report as it excludes any finding that does not fit the methodology. As a result, GAO performance audit reports are not truly investigatory but rather a fancy way of self-congratulating the report writers’ “intelligence”.

The painful side effect of such a limited “review” is that civil servants who suffer unfairness are ill-served by such a report. An example is the painful, waste-of-human-resources manner that the Federal Reserve Board (Board) (not a CFO Act agency, but its operations serve as an example) does its performance management system, the so-called PMP.

The Board, using “rank and yank” policies fires a percentage of staff every year through targeting some employees with low ratings. Such low ratings place these employees on a list to be fired. Before losing the position, the target is offered a settlement agreement, in which severance is offered and, most importantly, the low rating is raised to satisfactory level. In exchange, the target is asked to release the agency from any legal claims of liability.

In this way, the Board can publish numbers showing that all employees got satisfactory or above ratings, while simultaneously covering up its firings.

Thus, the weakness of the GAO’s performance audit method is demonstrated with these facts from the Board, and shows the GAO as an impotent, insular, ineffective, and insulting-to-the-conscience agency when it does work in the performance management area.

I continue to be unimpressed and disgusted with the GAO; I will not give credibility to any of its work unless serious improvements are made in its reporting operations. Namely, extensive research and analytical work product that considers all facts and possibilities, not just proving an insular hypothesis.


Department of Defense: General Schedule May Have a Long Tenure, But Still Effective; Dick Grote-Style Pay-for Performance is a True Failure

Artist: michael sloan
Artist: michael sloan

It seems that the idea of pay for performance-no matter the numerous failures (documented, in part, in this blog)-has yet again reared its failed head at the U.S. Department of Defense (DoD). Pay for performance is to replace an “aged” General Schedule system, the DoD proponents posited. A system’s age is irrelevant; whether it functions in a way that those it applies to can accept is more important.

The DoD proponents propose undemocratic, unfair, and dictatorial pay-for-performance policies that betray the democratic republic foundations of the country. In addition, the DoD proponents should never forget that the employees are also United States citizens and permanent residents and taxpayers and that agencies have authority through the consent of U.S. citizens and residents.

Bucket (rank) Percentage (amounts can be adjusted) Effect
A 20 Lavish rewards, encouragement
B 70 Little to paltry increase
C 10 Pressure to quit, firing

The DoD, and their bosses in the Congress and in the Executive Branch, should tread carefully in any move to alter the General Schedule unless the replacement can be well accepted as the General Schedule. Pay-for-performance systems are at their foundation unfair, subject to management abuse and manipulation without equivalent accountability for those managers, and render the employee powerless and subject to management ambush and destruction of employee livelihoods.

Dick Grote’s Forced Ranking Amazon.com [New York Times article] Department of Defense [Washington Post column by Joe Davidson]
Anytime Feedback Tool-allows co-workers to send feedback to one’s manager without the targeted employee’s knowledge. Jeff Bezos, chief executive officer of Amazon, is an investor in Workday, which seeks to bring this “gem” to other organizations which purchase it. “Force of the Future launches a strong attack on the General Schedule, saying it “is wholly inflexible and ill-suited to attract critical skills or motivate high performers.” In the name of fairness, “the promotion system primarily rewards time in grade,” the document adds, “instead of identifying, rewarding, and motivating high performers, the GS system rewards mediocrity.” ” [Note: Dick Grote uses similar language. http://www.groteconsulting.com/the-rationale-for-forced-ranking/]
Manager sets tough objectives and expects the employee to figure out how to satisfy the manager’s expectations “Molly Jay, an early member of the Kindle team, said she received high ratings for years. But when she began traveling to care for her father, who was suffering from cancer, and cut back working on nights and weekends, her status changed. She was blocked from transferring to a less pressure-filled job, she said, and her boss told her she was “a problem.” As her father was dying, she took unpaid leave to care for him and never returned to Amazon.

“When you’re not able to give your absolute all, 80 hours a week, they see it as a major weakness,” she said.”

“Officials want managers to have more authority so they can “divest low performers” —  in other words, fire them. “The current performance management system does not effectively hold low performers accountable, offering few negative consequences when an employee falls short of expectations, and gives supervisors unwieldy options for intervening,” the DOD proposal says.”
Callibration meeting Each year, the internal competition culminates at an extended semi-open tournament called an Organization Level Review, where managers debate subordinates’ rankings, assigning and reassigning names to boxes in a matrix projected on the wall. In recent years, other large companies, including Microsoft, General Electric and Accenture Consulting, have dropped the practice — often called stack ranking, or “rank and yank” — in part because it can force managers to get rid of valuable talent just to meet quotas.

Preparing is like getting ready for a court case, many supervisors say: To avoid losing good members of their teams — which could spell doom — they must come armed with paper trails to defend the wrongfully accused and incriminate members of competing groups. Or they adopt a strategy of choosing sacrificial lambs to protect more essential players. “You learn how to diplomatically throw people under the bus,” said a marketer who spent six years in the retail division. “It’s a horrible feeling.”

Unique to Discipline Without Punishment is the final step before an employee’s termination – the Decision Making Leave. The employee is suspended for a day with full pay. On this day he must make a final decision: either solve the problem and commit to fully acceptable performance, or quit and find more satisfying employment somewhere else. Performance Improvement Plan--“confidential” and among other expectations of the PIP is that the responsibility for bringing performance to the acceptable level rests with the targeted employee. “It would allow top officials to suspend an employee without pay. They would have 30 days to prepare a written statement of specific charges, but the employee would have just seven days to respond. That time discrepancy is one example of the plan’s power shift.”

Futility of “Colorblindness” and Confirmation Bias: Can Poison Workplace Interaction of a Supervisor and Subordinate Employee; These Interactions Must Be Covered under Equal Employment Opportunity Law

In the United States, the manager of an organization is give great power to hire, supervise, instruct, discipline, and terminate employees, according to the laws relating to employment (indexed as master and servant) law.

Perhaps in a sufficient number of cases, manager’s assessment in an applicable discretionary power is correct, but in a situation of implied bias–that the supervisor is prone to disfavor the work of a subordinate just because of his or her skin color, such discretion becomes racially discriminatory and unfair. The subordinate cannot do anything to avoid the effects of a manager who applies a unconscious bias to such subordinate.

As a result, broad assertions (even with manager-supplied documented “proof”) of poor performance, must be viewed with a skeptical eye and with a view of ensuring that the manager’s assessment and documentation is itself fair and equitable to the subordinate and not just accepting the manager’s compilation of errors is the final word. This point is a definite weakness of the Grote forced distribution system (governed by manager’s unchecked “opinion”), covered separately in this blog.

Exploring the issue of unconscious bias, Dr. Arin N. Reeves, a researcher with Nextions, a consulting organization, investigated the effect of confirmation bias. Specifically, Dr. Reeves was investigating the reason from prior research finding that supervising lawyers perceived African American lawyers to be sub par in their writing skills in comparison to their Caucasian counterparts.

Dr. Reeves and her team performed a study, studying the issue from a perspective of unconscious or implicit bias. Five law partners were asked to write an legal research memo from a hypothetical third-year litigation associate that focused on trade secrets in Internet start-ups. The researchers then introduced 22 errors–spelling and grammar (7), substantive technical writing errors (6), errors of fact (5), and errors of analysis (4).

This error-amended memo was provided to 60 partners of law firms; one-half of them were told that the memo was written by an African American associate, and the other one-half of them were told that the author was Caucasian.

The result–from 53 law partners (24 having reviewed the African American associate’s memo and 29 having reviewed the Caucasian associates memo)–is as follows:

African American Associate Caucasian Associate
Overall quality of the memo (rated from 1 (poor) to 5 (extremely well written) 3.2/5.0 4.1/5.0
Qualitative comments
  • “needs lots of work”,
  • “can’t believe he went to NYU”,
  • average at best”
  • “generally good writer but needs to work on…”,
  • “has potential”,
  • “good analytical skills”
Specific errors
Spelling and grammar errors found 5.8/7.0 2.9/7.0
Technical writing errors 4.9/6.0 4.1/6.0
Errors in fact 3.9/5.0 3.2/5.0
Errors in analysis Rated better overall because he had fewer critical comments.
Formatting (not requested by research group, but 41 comments received) 29 comments / 41 11 comments / 41

The researchers noted that there was no significant correlation between a partners race/ethnicity and the differentiated patters of errors found between the two memos. In addition, there was no significant correlation between a partner’s gender and the differentiated patterns of errors found between the two memos, the researchers continued. The researchers stated that they did find that female partners generally found more errors and wrote longer narratives than the male partners.

Dick Grote, Forced Distribution, and the EEOC Compliance Manual: Forced Distribution Must Show Compliance with All Civil Rights Laws and Regulations

Forced Ranking, its main apologist is Dick Grote, is a blunt management tool, one that does not work in an imperfect world. When imperfect human beings, named as managers, deign themselves to be perfect judges of “performance” by virtue of their position and power over other human beings, the result must be tragedy. See, for example, the Vanity Fair article on Microsoft or read the many articles on the failures of Enron.

This tragedy is compounded with one of the United States of America’s great shames and weaknesses–chattel slavery of African Americans and all of the negative results visited on those human beings considered as mere property and their descendants. The United States has barely started the recovery process on this indelible stain on the society and its governmental institutions, yet careful and conscientious observers witness consistent backsliding on true equal opportunity. Such weakness is magnified greatly with reckless use of forced distribution, with all of the negatives of the terrible procedure, such as

  • being emotionally abused through unchecked abuse of power,
  • finding new paying work,
  • having to explain the firing in neutral terms repeatedly in interviews with potential employers, and
  • losing access to money to pay for life’s necessities (food, shelter, and clothing) for oneself and his or her family.

All of the bulleted items (above) are thrown onto the target (the so-called poor performer, c-bucket employee) who does not know of the extent of the management’s wicked actions in “calibration” meetings.

Grote, in his writings (analyzed on this blog) on forced distribution, never directly considers the Equal Employment Opportunity Commission’s Compliance Manual and its effect on the use of forced distribution in the workplace. Obliquely, there is one example, that I contrast with an example from the EEOC’s Compliance Manual (below). Employers must be aware, however, that all aspects of processes affecting employees must be without bias.

Dick Grote Quote Equal Employment Opportunity Compliance Manual
“But what if a company’s forced ranking procedure, honestly and objectively done, reveals that the blacks or women or disabled employees just aren’t as talented as the white ones? Should they do what some Harvard professors are said to do and award A’s to all the blacks, just to keep them from squawking?” (Grote, page 4 (a quote from a previous post)).

(Note: Consider this statement from Grote with the ever-present and persistent legacy of slavery and Jim Crow subjugation in the United States of America.)

2. Performance Evaluations

Performance evaluations frequently serve as the basis for numerous other employment decisions, such as pay, promotions, and terminations. They should be unaffected by race bias.


Daniel is a customer service representative, and the only African American in his unit. Until recently he has received uniformly stellar performance ratings, received performance awards, and earned a good reputation among his customers and colleagues.

Things began to change, however, when a new supervisor was assigned a year ago to manage his unit. While Daniel had long been rated one of the best employees, the new supervisor began rating Daniel as below average, which has affected Daniel’s quarterly bonuses.

He files a charge alleging race discrimination. A review of the performance evaluations of Daniel and others in his unit reveals that while Daniel’s overall performance rating has dropped markedly, the ratings of his counterparts have gone up. Significantly, on the most objective part of his performance evaluation – “quantity of results,” which measures the number of accounts serviced – Daniel was rated below average when in actuality he serviced more accounts than persons with higher ratings in this performance category. In addition, there is evidence that the supervisor undermined Daniel’s professional standing with customers – for example, by taking over meetings Daniel was supposed to lead, and refusing to correct a customer’s clearly mistaken belief that Daniel was responsible for an error. This treatment is markedly different than that of Daniel’s colleagues.

The investigation reveals no evidence of a nondiscriminatory reason – such as a pure personality clash (i.e., one not rooted in the alleged bias)(147) – that explains Daniel’s treatment. There is reasonable cause to believe Daniel’s performance evaluations, and thus his pay, were racially discriminatory.(148)

Federal Reserve Board (OIG Audit 2015-MO-B-006): Performance Ratings Differences Wrongly Diminished; Board’s New Performance Management Approach May Be Based on Grote Approach and Fierce Conversations; Glassdoor.com Review Discussed

I have reviewed a report by the Office of the Inspector General (OIG) for the Federal Reserve Board (Board) [The Board Can Enhance Its Diversity and Inclusion Efforts, Audit Report 2015-MO-B-006], and I am disappointed with the weakness of investigatory probing in the part of the report discussing the Board’s performance management policy. Specifically, I question the independence of the OIG when the OIG is following the Board’s performance management policy, yet the OIG does not describe the program in its audit report.

Moreover, the position of the Board’s Chief Operating Officer, Don Hammond, does not inspire confidence. Rather than addressing any signs of unfair and inequitable workplace practices, he makes arguments to defend the status quo. A status quo that includes Artis v. Bernanke (or Yellen) and Robert Auerbach’s observations.

In addition, Mr. Hammond focuses on job level measures, yet ignores that the Board’s policy is implemented on an agency level (in 2011-2013 and after that period). As such, the agency level measures (between Whites and African Americans as well as between Whites and Asians) are relevant measures and need to be further studied and addressed.

Statement of Don Hammond, Federal Reserve Board Chief Operating Officer

Glassdoor.com Review

With respect to the more relevant job level analysis [performed by an independent consultant, see Appendix E of the OIG audit report], the independent consultant concluded that there is no trend of statistically significant differences between White and African American performance ratings when the data are analyzed at the job level. (OIG report, page 100 (carryover paragraph)) (Emphasis (in bold) by blog author.)

[Author’s note: However, the independent consultant did find statistically significant differences at the agency level between Whites and African Americans and between Whites and Asians. (OIG report, Appendix E, page 90 (third full paragraph))

Review submitted 24-August-2013:

I have been working at Federal Reserve Board full-time (more than 3 years)

Doesn’t Recommend Neutral Outlook Disapproves of CEO


Prestige (for what it’s worth), adjacent to National Mall, OK cafeteria, annual leave, insurance (health, dental, vision), raises available (but if you are not one of the 20% “high performers”, you will tread water economically with low raises with 70% of the staff at the “commendable” (nice way of saying average) level.)


Performance evaluations (that is, the dreadful so-called PMP) use the forced distribution, or “rank and yank” method. Google it; forewarned is forearmed. A set percentage are given bad reviews, with encouragement to quit. The internal webpage shows no one gets below commendable; do not believe it. The entire performance evaluation system is a true insult to workers who bravely try to meet impossible-to-satisfy expectations. Again, my fellow human beings–beware.

[To employees (current and future): As low-level managers will be taking notes for the PMP on computer, you must make sure to ask for a copy of any managerial documentation with your name on it. If denied, make note of the denial. Also, take assignments, do well on them, write a success list (for your own eyes only) so that you can update your resume and leave at will. Your heart, soul, and mind will thank you when you leave the building for the last time.]

Resistance to necessary change. Just because it worked in 1970 does not mean the exact practice must continue in the Internet era.

Excessive division between PHD and non-PHD staff. PHD staff advances; the rest languish.

Advice to Management

Complete transparency (that is, sunshine) should be standard operating procedure. Employees have a right to know if managers are making adverse decisions about their careers behind closed doors with a outside facilitator.

Forced distribution ultimately will cause systemic failure, requiring congressional attention to fix the mess.

With regard to the Board’s new performance management process, there is no specific description of the plan provided by either the OIG or the Board. However, there is a Glassdoor.com employee review (August 24, 2013) that provides some idea about what the Board may have implemented–A Dick Grote-style system (see Glassdoor.com review in table). If true, this Grote system will provide no improvement; the annual statistical review (OIG recommendation 3 and management response, page 101 of the OIG report) that the Board questions on a cost basis becomes an absolute necessity.

The new performance management process was piloted in five divisions and the OIG for performance year 2013–2014, with full implementation in all Board divisions in the 2014–2015 performance year. The purpose of the new process is to align staff to the work of the Board, provide greater accountability, support the growth of staff, improve the value of time spent, and increase the fairness of the process. In addition, the new process involves frequent conversations between employees and their managers that are designed to develop and grow employees’ capabilities. The Board contracted for the necessary expertise to assist with the program’s implementation, which includes information sessions, tools and guides, training, and other support. [Page 30 of the OIG report] (Emphasis (in bold) by blog author.)



Percentage (amounts can be adjusted) Effect
A 20 Lavish rewards, encouragement
B 70 Little to paltry increase
C 10 Pressure to quit or firing

Given the Glassdoor.com review, there is reason to believe that the new performance management process, implemented across the Board (including the OIG), is the Grote Approach. In addition, the conversation method is governed by the Fierce Conversations program. Dick Grote favors forced distribution, a system that does not benefit protected class members. (The forced distribution issue is covered in numerous posts in this blog.)

But what if a company’s forced ranking procedure, honestly and objectively done, reveals that the blacks or women or disabled employees just aren’t as talented as the white ones? Should they do what some Harvard professors are said to do and award A’s to all the blacks, just to keep them from squawking?” (Grote, page 4 (a quote from a previous post)).

(Note: Consider this statement from Grote with the ever-present and persistent legacy of slavery and Jim Crow subjugation in the United States of America.)

The general approach of the Grote process is to make the employee responsible for satisfying the whims of the manager. If the employee cannot read his or her manager’s mind, the employee must quit or be fired.

Unique to Discipline Without Punishment is the final step before an employee’s termination – the Decision Making Leave. The employee is suspended for a day with full pay. On this day he must make a final decision: either solve the problem and commit to fully acceptable performance, or quit and find more satisfying employment somewhere else.

The Grote Approach is summarized below (information from Grote Consulting’s website).

Performance Appraisal

Corrective Action


Does everyone know exactly what you expect and exactly how well they’re doing? We can help you create a new performance appraisal system that is simple and effective. Or tune up a worn-out one. And we can train your managers to be masters of performance management. Does your existing corrective action system solve problems, enhance relationships, and build personal responsibility? Does it reflect your organization’s values? Are your managers comfortable holding tough performance improvement conversations? We can help. Calibration systems assure appraisal accuracy, guarantee differentiation, and drive the truth into performance management. We can help you create a successful approach and train your managers and facilitators to use this this deceptively simple procedure skillfully.

Federal Reserve Board (OIG Audit 2015-MO-B-006): Inspector General Issues Audit Report on Board’s Diversity and Inclusion Processes; Board’s Claim of Total “Independence” Unjustified

The Office of Inspector General (OIG) for the Federal Reserve Board (Board), responding to a 2014 Congressional request (Appendix A of the OIG’s report), performed an audit of the Board’s diversity and inclusion processes. On March 31, 2015, the OIG issued a report.

Authors of Board OIG Audit Report, 2015-MO-B-006
Name Title
Anna Saez OIG Manager
Kimberly Perteet Senior Auditor and Project Lead
Sopeany Keo Senior Auditor
Brian Murphy Auditor
Sean Newman Auditor
Timothy Rogers Senior OIG Manager for Management and Operations
Melissa Heist Associate Inspector General for Audits and Evaluations

Overall, I am disappointed with the overall stagnation of the Board; a situation caused by institutional zeal for broad independence through the Board’s citation of 12 U.S.C. section 244. And, I could understand an argument for only the Federal Open Market Committee and only monetary policy making.

But it is unreasonable to expect the people of the United States of America to accept an “independence” stance that requires the Board, a federal agency, to be free from federal employment statutes that were adopted into law long after 1913, including civil rights laws and Title 5 of the U.S. Code. Asking any citizen in the present day to respect employment law from 1913 or to allow the Board to choose which statutes it will follow (or comply with) is totally unacceptable.

The money that the Board, on which it conducts monetary policy, comes from the people of the United States of America, which has a government that possesses authority to govern through the consent of its people. Once the government loses that consent, authority is lost. The Board, in its quest to protect a nebulous independence for non-monetary-policy administrative activities, forgets this bedrock principle and risks institutional failure.

[Author’s note:  Congressional amendment of 12 U.S.C. section 244 is necessary regardless of the history of frustration with the Board. (I am aware of past difficulty with this subject. (See Auerbach, Robert D. (2008), Deception and Abuse at the Fed: Henry B. Gonzalez Battles Alan Greenspan’s Bank, Austin: University of Texas Press, pages 122-124.))]

The Board must come into compliance with all civil rights laws and regulations and conform its policies to Title 5 in order to have full legitimacy. The Board’s “independent” behavior does not inspire confidence for the Board. For example, with the long case (18+ years as of the date of this post) involving employment discrimination, in Artis v. Bernanke or Artis v. Yellen or another employment discrimination case discussed in Auerbach, Robert D. (2008), Deception and Abuse at the Fed: Henry B. Gonzalez Battles Alan Greenspan’s Bank, chapter 8, where an African American employee, holding a position of statistical assistant, ultimately had to sue for a promotion. Successful with the litigation, the affected employee won the promotion, back pay, and compensatory damages.

Litigation is expensive, and most employees cannot afford it. So to expect a rank-and-file employee to have an expensive legal process as the sole procedure to argue against the Board (which has all of its legal expenses are covered by the taxpayer (as the paper money comes from the economic activity of the country, not the Board)) is manifestly unreasonable.

Furthermore, I question the Board’s maintenance for broad statutory compliance exclusions when it fails to voluntarily evaluate its employment practices to ensure a fair and equitable workplace, separate from the Equal Employment Opportunity complaint context. When the outside consultant determined possible disparate impact, the Board argues that focus should be on a narrower ground–job level (page 99 of the report, memorandum from Don Hammond, Board Chief Operating Officer (COO), third full paragraph (citing Wal-Mart Stores v. Dukes, 131 S. Ct 2541, 2555 (2011)). [Author’s note: The Board is a fraction of the size of the Wal-Mart Company; the case does not prevent proactive, introspective inquiry.]

This point from the Board COO might have been a valid point except for the data in figure 4. In figure 4, most of the Black/African American employees are in the lower level of the agency. Also, in terms of performance ratings (Appendix F of the OIG’s report) between White and Black employees, White employees overall get the higher average performance ratings than Black employees. Certainly, an inquiry as to what factors lead to that result and whether bias enters anywhere into the performance appraisal process would be reasonable, if the goal is to maintain a truly fair and equitable workplace.

In addition, the Board’s COO reflects an obstinate attitude because if an agency is interested in a fair and equitable workplace, any receipt of possible disparity should initiate a voluntary, intra-agency inquiry as to whether any of its practices are causing any disparity (and providing any remedies), without waiting for an employee complaint. Such an adversarial attitude causes further distrust of the Board and demonstrates why more accountability to (and compliance with) all U.S. statutes regarding civil rights and federal employment is needed.