11/4/11: Last week, the Union raised with SEC management concerns over an image of a black female that the SEC included in its online performance management training materials made available for both bargaining unit and management staff. The Union conveyed to SEC management the concerns that many SEC employees, including minority employees, expressed about the insensitive use of this image. In response to these concerns, the SEC removed the image from the training module and also from a separate management training module. However, notwithstanding the concerns raised by these employees, the agency has declined to issue a corrective communication to the workforce which would make it clear that the SEC does not directly or implicitly associate failing performance with minority employees.

The SEC used this image in a slide in the section of the training module entitled, “What is the meaning of a “1” rating?” It depicts a black female scratching her head. There are no other pictures of minorities in the training slide deck.

A “1” reflects the lowest possible rating available in management’s new performance management system, for "unacceptable" performance. A "1" rating would typically land an employee on a Performance Improvement Plan and, in many cases, it could be the first step towards terminating an employee for poor performance.

"I was surprised and very disappointed to see this slide in the materials," Chapter 293 Vice President Pat Copeland recently noted. "I felt that it was very important for the agency to correct this."

This image and the context in which the SEC performance management team presented it to SEC staff is extremely troubling given the agency's recent history.

SEC employees will recall that, in 2007, an independent federal arbitrator issued a ruling that the SEC’s old performance management system, the "Merit Pay System," violated Title VII of the Civil Rights Act and the Age Discrimination in Employment Act  because it had an impermissible disparate impact upon African American professionals as well as employees over the age of forty. White professionals, the arbitrator found, were almost twice as likely as African American professionals to receive the highest rating in the Merit Pay system. As a consequence of that ruling, the SEC ultimately paid millions of dollars in damages to its own employees.

Furthermore, the SEC's most recent pilot run of its new, so-called "evidence based" performance management system in Enforcement and OCIE for FY 2010 revealed a similar pattern. The pilot data showed that white employees were approximately two and one half times more likely to receive the highest rating, a “5,” than African American employees. Similarly, African American employees were approximately twice as likely to receive a “3” as white employees. Statistically significant differences also appeared in the top level data based upon age, with many more employees who were over forty receiving a “3” than those under forty. Other biases also appeared in the data. 

Under these circumstances, including an image of a minority employee in the SEC's performance management training slide deck to depict a "1" or "unacceptable" rating is inappropriate, at best.

Because the vast majority of employees and managers had already taken the training and been exposed to this slide, employees who raised this concern with the Union believe that, in addition to removing the image from the training materials, the SEC should issue a corrective communication to its workforce, to ensure that everyone understands that the SEC does not directly or implicitly associate failing performance with minority employees. However, despite the fact that the agency has agreed to remove this image from its training materials, SEC management has asserted that its inclusion was unintentional and has refused the employees' request to send out a communication to the workforce addressing the insensitivity its use reflects.