Four years after the lame-duck Carter administration announced a sweeping affirmative action agreement guaranteeing more federal jobs for minorities, the Reagan administration has not developed the new civil service hiring tests required to implement the plan.
President Reagan's Office of Personnel Management accepted the Carter plan -- though some affirmative action requirements it opposed were included -- and abolished the government's primary civil service examination in May 1982. That test, the Professional and Administrative Career Examination (PACE), was used to screen applicants for the government's better-paying entry-level positions, 118 kinds of jobs at GS-5 and GS-7.
The test was abolished as part of a consent decree after a judge ruled that the exam discriminated against blacks and Hispanics. The plaintiffs had argued, in part, that the government-wide hiring test often asked questions that were irrelevant to a specific job.
OPM said it would replace the test with separate tests for each of the 118 job categories. The new tests were supposed to measure competence but be structured so that if 15 percent of the people who took the test were minorities, roughly 15 percent of those who passed it would also be minorities.
Under the agreement, if a new test did not produce those results, OPM could scrap the results and keep trying new tests until it achieved the correct numbers, or it could seek to "validate" the test by finding another way to prove that it does not discriminate.
So far, two new tests have been developed -- one for tax technicians that was completed in October and another for computer specialists that has been in use since August 1982.
"By failing to develop a new, competitive, valid and non-discriminatory exam to replace PACE," said Rep. Patricia Schroeder (D-Colo.), who chairs the House Post Office and Civil Service subcommittee on civil service, "not only is OPM violating the consent decree, but OPM is also depriving agencies of the tools necessary to hire needed staff."
For the remaining 116 kinds of jobs, agencies have had to hire employes under special hiring powers that normally are used only to hire lawyers, some teachers and temporary, summer employes.
Persons hired under those circumstances cannot be promoted to competitive GS-9 positions without taking a different exam. Ordinarily, satisfactory GS-7 workers could move up the ladder to that level without having to take another exam.
Schroeder cited a recent General Accounting Office report stating that while more blacks and Hispanics had been hired under the special hiring authority, using such authority was no substitute for new entry-level exams. That report found that from October 1982 through June 1983, the government hired about 350 people in GS-5 and GS-7 jobs under the special hiring power. The small number of new hires -- because of budget cuts and lay-offs during Reagan's first term -- made it difficult to assess the impact of abolishing the PACE test, the GAO said.
One problem the GAO did cite was the difficulty employes hired under the special authority had in winning promotions. Last year the National Treasury Employes Union (NTEU) sued the government on behalf of those workers, contending that they don't have the same rights as other workers. The union wants those employes to be converted automatically to the competitive civil service.
OPM Director Donald J. Devine maintains that his agency intends to comply with the consent decree. But, he said, developing 118 non-discriminatory tests is a monumental task that will take much more time.
"We're working on it. We have a limited staff," Devine said. "Can she Schroeder expect that 118 examinations are going to be validated overnight? It took years and years to come up with the PACE exam . . . . It's a massive undertaking."
He added that "the basic problem is that we have a court order that we opposed, and we're trying to live under it ." He is being forced by a court order to devise a test guaranteed to allow more minorities to pass, in an administration that is opposed to affirmative action quotas.
The consent agreement, approved by U.S. District Court Judge Joyce Hens Green, has been criticized by some government lawyers and the Anti-Defamation League of B'nai B'rith as amounting to a quota system. But lawyers for civil rights groups, and the Carter administration officials who worked on the agreement, said it only reverses a longtime pattern of discrimination against minorities and opens the door for them to assume some of the better-paying federal jobs -- in the case of a GS-5, at least $14,390 a year.
After the PACE exam was scrapped, Devine argued that the government was hiring so few new employes in the face of budget cuts that it would be too costly to create new exams.
But now OPM is under pressure to come up with new tests. In addition to the Treasury union suit, the Lawyers Committee for Civil Rights Under Law, which filed the original lawsuit, is "actively discussing" with OPM the legal implications of the delay, according to a committee lawyer.
Richard Edelman, a lawyer for the NTEU, said, "The statute is clear. It requires that competitive examinations be given. We see this as an encroachment by Devine on the concept of a career civil service."
"They absolutely are dragging their feet," said Bob Tobias, president of the NTEU. "What I suspect is that the current hiring power gives the agencies much more flexibility and hiring authority than any exam would provde."
Tobias questioned Devine's interpretation of the court decree as requiring 118 tests. "He could still develop one test, as long as it's verifiable as non-discriminatory. That's no excuse for ignoring what he knew he had to do four years ago."