The opinion of the court was delivered by: SMITH, JR.
These consolidated cases involve a class action brought against the Department of State alleging sex discrimination against female Foreign Service Officers (FSO's) in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. The plaintiff class is composed of all female Foreign Service Officers employed by the Department of State at any time since February 4, 1976 and all female applicants to become Foreign Service Officers since February 4, 1976.
The nine individual plaintiffs are Alison Palmer, Mary A. Ryan, Ellen Shippy, Marguerite Cooper, Mary Lee Garrison, Mary Finrow, Laurel Cooper, Mary Hartman, and Julie Ann McGrath.
Plaintiffs allege that the Department of State engaged in sexual discriminatory practices against female FSO's and FSO applicants in all aspects of the employment process, to wit: (a) hiring, (b) cone assignments, (c) job assignments, (d) promotions, (e) performance evaluations, (f) awards, and (g) class at hire. Plaintiffs' hiring claims were settled prior to trial in the form of two consent decrees. The first consent decree was entered on October 12, 1983 and resolved all claims raised by those class members who had applied to become Foreign Service Officers at the Junior Applicant level. The remaining class applicant/hiring claims were settled with the March 5, 1985 entry of the Mid-Level Consent Decree. Defendant denies each and every one of the remaining claims, contending that the Department of State has consistently complied with the spirit and requirements of Title VII. Trial on the remaining claims was bifurcated, and the liability issues were tried beginning on May 6, 1985, and concluding on June 5, 1985.
Upon consideration of the testimony of the witnesses, exhibits admitted into evidence, and the entire record herein, the Court, pursuant to Fed. R. Civ. P. 52, enters the following findings of fact and conclusions of law.
1. The Foreign Service of the United States is charged with assisting "the President and the Secretary of State in conducting the foreign affairs of the United States." 22 U.S.C. § 3901(a)(1).
2. The Foreign Service is administered by the Secretary of State under the direction of the President. 22 U.S.C. § 3921(a).
3. While performing its many varied duties throughout the world, the Foreign Service is responsible for maintaining the best possible relations with the government to which accredited.
4. In the early 1960's, the Department decided that Foreign Service Officers should be selected for hire into a particular cone, that is, functional field of specialization, while continuing to be required to show generalist aptitude. Four cones were established to reflect the four main areas of specialization: political, economic/commercial,
administrative and consular. Prior to that time FSO's were hired as generalists. Later in their careers, many but not all developed a field of specialization. It was determined that the generalist selection method had resulted in a surplus of political and political/economic officers and an insufficient number of officers in the other fields (consular, administrative and commercial). In addition, management believed that more specialized expertise was required to meet the increasingly complex demands placed on the FSO corps.
5. Administrative officers are responsible for support operations of U.S. embassies and consulates.
6. Consular officers work closely with the public providing assistance to American travelers and residents abroad, issuing visas, and other immigration related issues.
7. Economic officers deal with economic issues that impact on U.S. interests, including trade, energy, aviation, and maritime matters. These officers perform their duties by both gathering and reporting data back to the U.S. and by taking part in economic negotiations with foreign entities.
8. Political officers analyze and report on political questions which affect U.S. interests. They gather data to report back to the U.S. while also maintaining close contacts with foreign political and labor leaders.
9. Since establishment of the cone system, officers have been assigned to a cone at the time of hire. The officer's cone is reflected as the officer's primary skill code. A cone may include individuals with a number of different primary skill codes. For example, political officers, political-military affairs officers, and labor-political affairs officers all constitute different skill codes, yet all are within the political cone.
10. Since the institution of cones in the early 1960's, it has not been the policy of the Department to encourage FSO's to change cones. This is due to the fact that recruitment and appointment have been conducted by cone, in accordance with, inter alia, anticipated work-force needs. If substantial numbers of officers changed cones, this could result in the imbalances which had previously existed. Except for a short period from mid-1977 to mid-1978 when there was a freeze on cone changes, however, a procedure has existed which specified certain prerequisites for changing cones.
11. For the period 1971 through mid-1977, an officer who wished to change cones would request his/her Career Development Officer (CDO) to make the change. That CDO would consult with the CDO for the desired cone, the two CDO's would consider the officer's performance in out-of-cone assignments in the desired cone and any other relevant credentials (e.g., academic background). If they agreed that the officer would be competitive in the desired cone, they would recommend the change to the interfunctional assignments panel, which had the final responsibility for approving the change.
12. New procedures were adopted in June 1978 (Department Notice: Primary Skill Code Changes, June 8, 1978) which permitted cone changes under certain specified circumstances. Those procedures were in effect until May 1979.
13. New procedures were again adopted in May 1979 (Department Notice: Procedures for Primary Skill Code Changes, May 22, 1979). Those procedures have been in effect since that time and continue to constitute the only method available for changing cones.
14. Officers can expect to serve the major portion of their time in the Service in positions in their assigned cones, although officers may obtain out-of-cone assignments to other cones or to interfunctional positions.
16. Between 1975 and 1979, the Junior Officer Division of the Foreign Service Career Development and Assignment Office of the Bureau of Personnel (FCA/PER) was responsible for the conal assignment of junior officers. FCA/PER would review each candidate's file, looking at his or her academic and work experience, written and oral examination results, and stated conal preference, if any. Based on this review FCA/PER would select a cone for the candidate. If a candidate disagreed with the conal designation, he or she was free to discuss the option of obtaining a different designation.
17. Those FSO's who entered the Service pursuant to the lateral entry programs acquired cone designations as part of the lateral entry process. Lateral entry applicants themselves selected, in advance, the functional field in which they wished to compete and were evaluated only for that specific cone.
18. Candidates attempting entry into the Foreign Service pursuant to the Affirmative Action Junior Officer Program (AAJOP) and Mustang Program obtained their initial cone assignments in a manner similar to other junior officers in that the Foreign Service Career Development and Assignment Office (FCA) matched the applicant's background and experience with the requirements of the four functional fields. In addition, since 1984, AAJOP applicants must also take the written examination.
19. Beginning in 1980, candidates who pass the written examination, the assessment process and the remaining steps of the selection procedure are placed on rank-order registers for all cones for which they passed the corresponding functional field test in the written examination. They are eligible for appointment to the Foreign Service officer corps, if reached, in any of the cones for which they passed a functional field test, but not in those cones in which they did not pass the functional field test. Actual offers of appointment are made in rank order, with the person who has the highest score on any conal register being offered the first appointment.
20. Candidates are free to accept or decline an offer, but are not guaranteed that a subsequent offer will be made, either in the same cone or, if the candidate is eligible, in a different cone. If a candidate is reached on more than one register in advance of a convening of a given initial training course, he or she may choose the cone of appointment.
21. Plaintiffs claim that women have been disproportionately overassigned to the consular cone and disproportionately underassigned to the political cone during the relevant time period, 1976-1983. Plaintiffs contend this pattern remains consistent regardless of whether the analysis involves all hires from 1976-1983, hires into Classes 7 and 8 during that time period, or hires who took the 1975 through 1980 written examination.
22. The analysis by plaintiffs' expert concluded that, during the 1976-1983 period, 84 (20.8%) of the women shown on defendant's computer tapes as being placed into one of the four cones within their first year as an FSO were assigned to the political cone, in comparison to 328 (30.3%) of the men hired. The difference means that 34 fewer women were assigned to the political cone than might have been expected based on their proportion among FSO hires. This difference measures 4.46 standard deviations and would occur by chance less than 1 time in 100,000.
24. Plaintiffs' statistics indicate that, when examining those FSO's who entered the Service between 1975 and 1980 through the normal exam procedures, 16.9 more females were assigned to the consular cone than might be expected based on their proportion among FSO hires. This difference measures 2.99 standard deviations.
25. During the same 1975-1980 time period, again looking only at those FSO's who entered the Service through the exam procedures, plaintiffs' expert found that 17.6 fewer females were assigned to the political cone than would be expected based on their proportion among FSO hires. This difference measures 3.29 standard deviations.
26. Plaintiffs' expert discounted the level of educational attainment at hire and educational major as explanations for the discrepancy in cone assignments of exam applicants.
27. Plaintiffs' expert contended that, as to exam takers, the scores received by candidates on the four functional field tests of the Foreign Service written examination differed by sex and were related to cone assignment. The scores from the 1975-1980 written examination indicated that women hired between 1976 and 1983 had significantly lower average scores on the political functional field test than men, but that the average score of men and women on the consular functional field test was about equal.
28. A logistical regression performed by plaintiffs' expert on the cone assignment of those persons who took the 1975-1980 written examinations and were hired between 1976 and 1983, which took into account the effect of level of educational attainment, major field of study, functional test scores, and sex on cone assignments, purported to show that test scores substantially explain cone assignments. When allowing for the functional field test scores, the analysis indicates no statistically significant disparity in assignment of females and males to the consular cone. As to assignment to the political cone, the disparity measures only 1.66 standard deviations.
29. Plaintiffs' analysis of exam takers is flawed and inconclusive in establishing disparate impact in cone assignment. It was established that the expert's determination of total FSO hires for the year 1981 was incorrect. Plaintiffs' expert at times had difficulty identifying the cone at hire of the FSO's, and chose to delete those officers from the analysis, along with any FSO's not assigned to the four major cones. Though the expert disclaimed the significance of those actions, the Court is not persuaded.
30. Defendant contends that women have a preference for the consular cone which explains the disparities in cone assignments. Defendant relies on the preferences of women who were hired between 1976 and 1983 and who took the 1973 or 1974 examination as an indicator of the cone preference of all women hired between 1976 and 1983. On the 1973 and 1974 examinations, a candidate selected one functional field test for which she wished to be considered for appointment to the Service. Using this analysis, defendant concluded that more females than males historically preferred to apply for the consular cone.
31. Defendant did not rely on a showing that the political functional field test was job related.
32. There are proportionately more promotion opportunities in the consular cone than in the political cone.
33. Presently, there is an overabundance of political officers, making competition for promotion and assignments especially keen in that cone.
35. Due to the ever increasing importance of the consular cone, many FSO's feel this is the cone to select in terms of career advancement.
36. No credible testimony was offered that any female FSO had been denied assignment to the political cone or gained assignment to the consular cone because of sexual discrimination.
37. Between 1972 and 1983, the substantial majority of FSO's in the Foreign Service entered the Foreign Service as junior officers in Classes 7 and 8.
38. Prior to 1980, applicants who succeeded in the written and oral examination process were appointed at Class 8 or 7, though the exact classification either as junior officers, temporary Foreign Service Reserve Officers, or Career Candidates has differed. Under the Foreign Service Act of 1980, appointment is now possible at the Class 6 level, as well as at Classes 7 and 8.
39. Plaintiffs' expert presented a statistical examination of the initial grade at entry of officers hired into Classes 8 and 7 between 1972 and 1983. The results of that analysis indicate that approximately one-third of the women, but only 23% of the men, entered at Class 8 between 1972 and 1983. That difference measures 4.1 standard deviations which means that this result would be due to chance less than once in 10,000.
40. Looking at the relevant time period, 1976-1983, there was no statistically significant disparity in grade at hire between males and females. The difference measures a standard deviation of 0.52, when controlling for educational level.
41. Examining 1976-1977, the only time period for which plaintiffs assert that the alleged discrimination in class at hire occurred, the summary difference between males and females assigned to Classes 7 and 8 measures 1.15 standard deviations, when controlling for educational level.
42. When examining Foreign Service entrants from 1976 to 1983 at Classes 5-8, women entered at an average class of 6.9 and men entered at 7.1. In terms of salary, the average male upon entry to the Foreign Service earned a salary of $21,700 while an average woman earned $22,800.
43. The higher average starting class of women in Classes 5-8 derives from the disproportionate number of women entering the Foreign Service at Class 5 as a result of the mid-level affirmative action program which was intended to bring more women into the mid-levels of the Service. The effect of lateral entrants offsets any perceived effect at Classes 7 and 8.
44. There was no credible testimony that female FSO's were discriminated against on the basis of sex in obtaining their initial class assignments.
45. The Department of State administers an Incentive Awards Program for the Foreign Service. Plaintiffs' expert analyzed one segment of the Department's program, the Honors Awards, which includes the Distinguished Honor Award, the Superior Honor Award, and the Meritorious Honor Award.
46. "Honor Awards recognize outstanding achievement and bestow singular honor and official recognition to an individual or group. As appropriate, honor awards may be supplemented by a cash payment or meritorious service or quality increase, if the employee is nominated for such increase." 3 FAM 642.2.
48. In regards to the Superior Honor Award, plaintiffs' expert produced statistics indicating that 4.8% of the award recipients were females, although 10.1% of the Class 1 through 5 FSO's during the time period were females. These results indicate that twice as many women would be expected to receive the Superior Honor Award as actually received it. The difference measures 3.1 standard deviations and would occur as a product of chance in a nondiscriminatory system only 1 time in 1,000.
49. No showing was made by plaintiffs' expert of how the failure of women to receive the Superior Honor Award affected the opportunity for promotion.
50. Plaintiffs' expert established no basis for his comparison of actual awards with expected awards. No showing was made by plaintiffs' expert of what portion of female FSO's were qualified for the Superior Honor Award. The expert's analysis was based on a faulty assumption that all female FSO's were equally qualified for the Superior Honor Award.
51. No credible anecdotal evidence was presented of female FSO's being denied Superior Honor Awards because of sex discrimination.
52. Written appraisals, known as Officer Evaluation Reports (OER's) or Employee Evaluation Reports (EER's), are generally ...