The Securities and Exchange Commission should draw from the “equity” efforts of K-12 schools, even though there is little evidence of discrimination at the financial regulator, according to a new report from the agency’s Inspector General.
The guidance to expand equity initiatives came despite a finding that an existing office dedicated to just that, the SEC’s Office of Minority and Women Inclusion, “lacked a systematic and comprehensive method of evaluating the effectiveness of its programs.”
Auditors “reviewed a [Government Accountability Office] report from March 2018 entitled K-12 Education: Discipline Disparities for Black Students, Boys, and Students with Disabilities. In this study, GAO found that black students, boys, and students with disabilities were disproportionately subjected to discipline in school. In addition to analyzing these trends in disparity, the report looked at practices that some school districts have taken to reduce such disparities. While the work environment at the SEC is not analogous to the education system, some of the work that schools have done to reduce disparities in discipline is informative. For example, school districts: created leadership teams for equity, culture, and support services; developed a district-wide equity plan that includes mandatory training on implicit bias; changed disciplinary policies to increase the consistency of disciplinary actions; and built awareness of racial bias in discipline,” the report said.
But in short, while K-12 schools have large racial disparities and discipline “equity” efforts often mean collecting less data to reduce them, at the SEC, the IG did not find racial disparities and determined it needed to collect more data, seemingly in hopes of finding them.
The auditors set out to find whether minorities were punished more severely than non-minorities for the same misconduct at the agency charged with overseeing stock markets. But it found that the sample size was small — seemingly implying it was not an issue that affected many people to begin with — and the results “inconclusive.” It also eventually determined that it is hard to make a simplistic comparison between two employees found responsible for a particular infraction since many factors may be different besides race.
Nonetheless, it noted that while many laws and procedures already ban discrimination, in the Biden administration, organizations must focus not just on equal opportunities, but on avoiding “disparate outcomes” that may be the result of “unconscious bias.”
“In addition to its legal obligations to prevent disparate treatment in the workplace, the Agency must also ensure that a manager’s conscious or unconscious bias regarding a protected class does not result in disparate outcomes in employment actions,” the report said.
In 2020, a series of events highlighting racial inequity in the United States brought to the forefront the obligation for employers throughout the country to evaluate and monitor their progress in advancing diversity, equity and inclusion, and preventing racial bias in the workplace. Equity should be present in every facet of the work environment, including the manner in which SEC employees are held accountable for their conduct.
Moreover, on January 20, 2021, President Biden issued Executive Order (E.O.) 13985, Advancing Racial Equity and Support for Underserved Communities Through the Federal Government (the “Order”), which recognized that “[e]ntrenched disparities in our laws and public policies, and in our public and private institutions, have often denied that equal opportunity to individuals and communities.”
In Section 9 of the Order, the President recognizes that “[m]any Federal datasets are not disaggregated by race, ethnicity, gender, disability, income, veteran status, or other key demographic variables. This lack of data has cascading effects and impedes efforts to measure and advance equity. A first step to promoting equity in Government action is to gather the data necessary to inform that effort.”
Though the inspector general did not find racial disparities in how an employee was treated when facing punishment for an infraction, it sought to collect more data, seemingly in an attempt to eventually find such statistics. To do so, it advised requiring managers to report more possible misconduct even if it was merely “suspected,” the kind that managers sometimes resolve or quickly disprove on their own.
To “align with the intent of President Biden’s recent directives on using an evidence-based and data-driven approach towards advancing racial equity in the federal workplace … we suggest that the SEC consider implementing a policy requiring management to centrally report all suspected employee misconduct, even if management is not planning to take action on that misconduct … Beyond monitoring and reporting in this area, the SEC should develop criteria and a process for determining when any identified disparity among a particular race, ethnicity, or gender requires a more in-depth review to determine its root cause.”
However, addressing possible statistical bias in discipline by lowering the threshold for what enters the disciplinary pipeline could wind up having a disproportionate impact on minorities. The inspector general said that in 2014, it found that some minorities “experienced statistically significant lower performance management and recognition scores.” K-12 efforts around discipline are largely focused on reducing the number of people who enter into the discipline pipeline, which they call the school-to-prison pipeline.
Despite its recognition that it is hard to compare individual cases of discipline as commoditized incidents because there are differences that become apparent when one examines them closely, the IG also recommended that the doling out of discipline should be centralized in only a “few” administrative officials, rather than the managers closest to the situation. “Managers may not consciously realize when biases may be impacting their decisions in these areas,” it said.
Inspector generals are generally not replaced when an administration shifts, and are considered one of the most independent and nonpartisan arms of government. However, there is some evidence of possible creeping politics during the Biden administration. Congress’s Government Accountability Office and the traditionally aggressive Special Inspector General for Afghanistan Reconstruction removed reports about Afghanistan following the implosion of U.S. military efforts there following a request for the Biden administration.
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