Mandatory Retirement in the Foreign Service: The Numbers Game

I promised a follow up post on my recent take on mandatory age retirement in the Foreign Service (sorry, jury duty for several days and school reopening made blogging time really tight). For prior blog posts and links on this subject, please check out the MAR page here.

The most popular argument against mandatory retirement seems to be its perceived impact on the promotion prospects of lower rank employees.  A commenter in this blog urged me to look at the promotion statistics (I have) and says that "equally qualified and accomplished foreign service officers/specialists ( especially specialists) are having exceptionally hard time getting promoted due to their colleagues choosing to stay and work in foreign service till they are forced to leave."

Frankly, I think folks "choosing to stay and work in Foreign Service till they are forced to leave" (at age 65) is only in the public interest if/when these employees are no longer competent for the jobs they were hired to do.     

The State Department Spokesman, PJ Crowley, himself was quoted in the recent NPR article saying, "the idea is to make sure younger Foreign Service officers have a chance to move up."

In any case, let's look at numbers.


Looking at the Numbers: The Promotion Statistics

Below are three sets of data - the promotion statistics from 2007-2009. The screen captures are of the statistics of midlevel generalists. Links to the promotion issues in State Magazine are provided below so you can easily look them up:

Promotion Statistics 2007
http://2001-2009.state.gov/documents/organization/102927.pdf
APRIL 2008 | STATE MAGAZINE | 29

click image to see larger view

HR in Data Analyzed (State Magazine | April 2008) had the following:  "The overall promotion rate for all Foreign Service employees eligible for promotion in 2007 was 26 percent, the same as the 2006 rate and the five-year average."

Overall, promotion rates for eligible FS generalists have increased since 2003. The number of promotions and promotion rates from FS02 to FS01 were slightly higher than in 2006 and were about equal to the five-year average. The FS03 to FS02 promotion rate was higher than 2006 and higher than the five-year average promotion rate of 48.7 percent.

On the staffing deficit: The 2007 promotions reduced a 9 percent mid-level deficit to just over 1 percent. Considering projected attrition for the remainder of 2008, HR estimates the deficit will be below 5 percent by September. If positions, hiring, promotions and attrition rates remain constant, the deficit will be eliminated by the end of the 2010 promotion cycle.

We note from the table above that the average time-in class of promotees from FS03 to FS02 was lowest for MGT at 3.1 and highest for ECON at 4.4; for FS02 to FS01, the time-in class was lowest for CON at 5.3 and highest for ECON at 6.2.


Promotion Statistics 2008
http://www.state.gov/documents/organization/121364.pdf
p.38 State APRIL 2009

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In the promotion issue of State Mag By the Numbers (April 2009), HR said that "The overall promotion rate for all eligible Foreign Service employees for 2008 was 25 percent, one percent less than in 2007 and the five year average rate."

The number of promotions and promotion rate from FS02 to FS01 were slightly higher than in 2007 and the five-year average.  At 44.9 percent, the promotion rates for FS03 to FS02 were lower than the 55.1 percent in 2007, but the number of promotions was only two fewer.

On the staffing deficit: "[T]he Department faces a deficit at the mid-level—with the management and public diplomacy cones facing significant deficits. While it will take a few more years before the deficit is eliminated, it has been shrinking. A recent analysis showed that the 6 percent mid-level deficit that existed in September 2008 is now a 1 percent surplus after factoring in the 2008 promotions. However, the bureau still projects a mid-level deficit of less than 3 percent at the end of the fiscal year. While the overall mid-level deficit is declining due to the transition of those hired during the Diplomatic Readiness Initiative into the mid-ranks, there will be an overall FS02 deficit in the range of 14 percent as of September 2009. Even if the Department receives authority to hire above attrition this year, the overall mid-level deficit will not be eliminated before the end of the 2010 promotion cycle."

We note from the table above that the average time-in class of promotees from FS03 to FS02 was lowest for MGT at 2.9 and highest for CON at 3.5; for FS02 to FS01, the time-in class was lowest for PD at 5.5 and highest for ECON at 6.5.


Promotion Statistics 2009
http://www.state.gov/documents/organization/138927.pdf
April 2010 State Magazine 29

click on image for larger view

HR in Timely Data published this past April said that "The overall promotion rate for all eligible Foreign Service employees for 2009 was 24 percent, 1 percent less than in 2008 and 2 percent less than the five-year average rate."

The number of promotions and promotion rates from FS02 to FS01 were slightly lower than the figures for 2008 but higher than the five-year average. At 45.6 percent, the FS03-to-FS02 promotion rate was higher than the 44.9 percent rate of 2008,

On the staffing deficit: "As most Foreign Service generalists know, the Department still faces an overall deficit at the mid-level—where the management and public diplomacy cones continue to face significant deficits. Although the deficit is shrinking, a recent analysis showed that the 4 percent mid-level deficit that existed in September 2009 is now a 3 percent surplus after factoring in the 2009 promotions. However, HR stills projects a mid-level deficit of 1 percent at the end of the fiscal year due to attrition. While the overall mid-level deficit is declining due to the transition into the mid-ranks of those hired during the Diplomatic Readiness Initiative, the bureau still projects an overall FS02 deficit in the range of 11 percent as of September 2010. Although HR once anticipated the overall mid-level deficit would be entirely eliminated by the end of the 2011 promotion cycle, it now appears the increase in mid-level positions expected under Diplomacy 3.0 will result in a continued mid-level deficit until approximately 2015."

We note from the table above that the average time-in class of promotees from FS03 to FS02 was lowest for PD and CON at 3.1 and highest for ECON at 3.6; for FS02 to FS01, the time-in class was lowest for PD at 5.4 years and highest for POL at 7.1.


* * *
So -- the overall promotion rate was at 26% in 2006 and 2007; in 2008 it went down a percentage to 25% and in 2009 it went down another percentage to 24%; the latest stats 2% less than HR's five year average.

In 2007, HR said that "overall, promotion rates for eligible FS generalists have increased from 29.3 to 32.3 percent since 2003." In 2008, the promotion rates in the midlevels were not significantly higher or lower ( "the number of promotions was only two fewer" for FS03 to FS02). Last year, The number of promotions and promotion rates from FS02 to FS01 were "slightly lower" than the figures for 2008, but at 45.6 percent, FS03-to-FS02 promotion rate was higher than the 44.9 percent rate of 2008.

So what do we make of this?  A percentage off here and there but no significant increase or decrease in the midlevel promotions.

We also note that the average time-in class for promotees in Class FS03 to FS02 are not significantly different: 2007 ranged from 3-4 years; 2008 range from 3 to 3.5; and 2009 range from  3 to 3.5;  For Class FS02 to FS01, the average time-in class was 5-6  in 2007, 5-6 in 2008, and 5-7 in 2009. 

Then there's another number to look at ....


Looking at the Numbers: The Staffing Deficit

Since 2006, HR has been projecting the elimination of the staffing gap at the end of the 2010 promotion cycle. "A recent analysis showed that 2006 promotions reduced the 15 percent mid-level deficit that existed in September 2006 to approximately 7 percent. Attrition is projected to drive the deficit back up to approximately 11 percent by next September. Assuming positions, hiring, promotions and attrition rates remain constant, the mid-level deficit should be eliminated at the end of the 2010 promotion cycle."

In 2007, HR again projected that the "deficit will be eliminated by the end of the 2010 promotion cycle."

In 2008, HR again point to the continued decline of staffing deficit but points to the FS02 staffing gap, "While the overall mid-level deficit is declining due to the transition of those hired during the Diplomatic Readiness Initiative into the mid-ranks, there will be an overall FS02 deficit in the range of 14 percent as of September 2009. Even if the Department receives authority to hire above attrition this year, the overall mid-level deficit will not be eliminated before the end of the 2010 promotion cycle."

In 2009, HR changed its projected estimate in closing down the staffing gap: "[T]he bureau still projects an overall FS02 deficit in the range of 11 percent as of September 2010. Although HR once anticipated the overall mid-level deficit would be entirely eliminated by the end of the 2011 promotion cycle, it now appears the increase in mid-level positions expected under Diplomacy 3.0 will result in a continued mid-level deficit until approximately 2015.

A GAO report released in 2009 concluded that "State faced a 28 percent greater deficit at the FS-02 level than it did in 2006, with mid-level positions in the public diplomacy and consular cones continuing to experience the largest shortages of staff overall.”

11% ? 28%?  That's a gaping hole in the mid level ranks of the Foreign Service. As a consequence, there is also a corresponding gap in the leadership pipeline, although State would not admit to this. 

Director General of the Foreign Service Nancy Powell, this past July said in the interview that "it will be several years before we are able to close the gap at the midlevels that resulted from restricted hiring in the 1990’s."

HR has repeatedly explained this process: The primary factor in determining the number of promotion opportunities to be allocated is service need. The model used to calculate promotion opportunities is based upon position requirements and estimated personnel, simulating the movement of employees through the Foreign Service career system over a multi-year period of time. It then uses averages, typically five years, for closing the gap between positions and personnel. This is done to create a smoothing effect since trying to promote exactly the right number every year to fill projected gaps would create dramatic year-to-year swings in promotion opportunities.

A gaping hole in the middle of the career ladder is not "service need?" Does holding down three jobs in addition to your own in icky-stan really builds leadership hardiness and character? Or is this a simple exercise in not drowning?

The promotion rates above have not shown significantly speed for the midlevels despite the staffing gaps. And State has continued to trim the ranks through its "up-or-out" system and mandatory age retirement.
In 1977 when Bradley v. Vance went to court, the filings include an item that says an average of 44 FS employees were subjected to mandatory age retirement annually.

Are there any current data that shows MAR waivers have been granted more in the last several years causing the clog up in the promotion pipeline?

Doesn't it seem curious to presume that the older FS employees are clogging up the promotion pipe when right in the middle there are unfilled slots? Still, people are not going up the ladder any faster. Why?

In a recent issue of State Magazine, Under Secretary for Management Patrick Kennedy was reported as making a pitch to get Civil Service and Foreign Service retirees to return as When Actually Employed staff.  He also said that the Department will not place inexperienced employees into mid-level assignments, where many openings exist. (July/August 2010 State Magazine p.5)

As far as we know, there has been no midlevel hiring to address the staffing gaps, the MAR waiver numbers are foggy at best (we've heard employees eligible for retirement told not to bother applying for MAR waivers), and the "up-or-out" system (under which failure to gain promotion to higher rank within a specified time in class would lead to mandatory retirement) is still working.  Meanwhile, the civilian surge is on in Afghanistan, Iraq and almost in Pakistan.

It looks to me like the mantra "when we're fully staffed" will be around for many more years and holding down one job plus two or three might be the new normal for years to come.

Unless we see the MAR waiver numbers showing a high number of 65+ employees retained in the ranks, it also looks like employees having an "exceptionally hard time getting promoted" is a calculated management decision.


Looking at the Numbers: Comings and Goings

While it is true that Congress has been stingy with increased staffing for the State Department for many years, it is also true that the last large influx of new hires happened during the Powell term at State. Under Rice's term, new hires trickle in at a dismal number.

The current SoS has been successful in adding more numbers to the FS ranks. The latest addition is some 700 numbers in FY2011. But we still have to see if that continues despite a bleeding red budget environment and elections in FY2012.

Meanwhile, the State Department is turning gray. In 2007, the Director General said that "approximately 17 percent of the Department’s workforce is currently eligible to retire. In five years, that number will increase to 35 percent, and in 10 years, more than half of the current workforce will be retirement eligible." (35% in 2012, more than half in 2017)

It does not have a good track record projecting, but if State's HR latest projection holds true, the staffing gap will be closed in 2015, just around the time when over a third of its workforce is eligible to retire.

Which almost ensure that the staffing gaps will persist for years to come compounded with an imminent experience gap in the next several years.

What's the immediate solution?

Even if Congress does not step in to tweak the Foreign Service Act (increase retirement age to 67 or 70, or eliminate mandatory age retirement altogether), State can do several things to mitigate the staffing gaps but has been unable or unwilling to do so.

Here are things that the State Department can do for the short-term:

• It could freeze promotions for employees working beyond 65 but keep them in the workforce until the gaps are bridged.

• It could extend MAR waivers to employees in certain deficit cones and skills temporarily.

• It could allow MAR subjected employees to complete their retirement tours, without removing them on the last day of the month they turn 65 to minimized staffing gaps and allow for a regular transition/rotation.

• It could design a fast-track promotion system across the board for talented and skilled employees

We don't like hearing FSNs telling officers "this is how we've always done this," and yet, on this issue, State has demonstrated the same rigidity in its practices.  State has cited the MAR as a lampost in its organizational life, as if to divert from it would break the institution.  In the end, it may take Congress to nudge the State Department forward on this subject. Either that or the Courts could change this practice.  Because if there are two institutions that are forceful in bringing change into the State Department, that's Congress and the Courts.   


What's the long term solution?

I don't have the answer. But sooner or later, Congress or the Courts will take on the mandatory retirement issue in the Foreign Service.

America at work has changed.  William D. Novelli of AARP said that less than 2% of American workers are in agriculture, and manufacturing employs only about 13% of American workers.  The result? "[T]he economy has shifted away from hard, physical labor and agriculture, "brains and learned skills have dominated, if not completely replaced, brawn and endurance." [...] A move to the knowledge economy, to which older workers with their added experience and wisdom are ideally suited and which increasingly makes the notion of a set "retirement age" obsolete." 

The Foreign Service in particular, despite calls for the expeditionary corps is squarely in the "knowledge" game.

People are also living longer - workers who are 65 today will live to an average age of 83.  

There are, also, implications for Social Security ... a big messy headache in itself in the years to come...

It is inevitable that this issue will gain much more traction in the foreseable future.


Age discrimination, is change thy name... 

Peter Cappelli, the director of Wharton's Center for Human Resources says that "If you look at the research on older workers, you see an incredible amount of discrimination against them, bigger than race, bigger than gender."

It is probably worth noting that in Bradley v. Vance, the Supreme Court sided with the government in an 8-1 decision. But if you look at that case closely, you will note that it was not an age discrimination case litigated under the 1967 Age Discrimination in Employment Act (ADEA) but  on whether Section 632 of the Foreign Service Act of 1946 violated the Equal Protection component of the Due Process clause of the Fifth Amendment.

In a case currently under litigation, FSO Elizabeth Colton's lawyers alleged that she was “subjected to discrimination by denying her the opportunity to serve at certain posts simply because of her age.”

There is such a thing as legal discrimination -- employers may consider characteristics that would otherwise be discriminatory if they are bona fide occupational qualifications (BFOQ). Hooters, for instance in a case where a male waiter applicant alleged discrimination, argued a BFOQ defense, which applies when the “essence of the business operation would be undermined if the business eliminated its discriminatory policy."

We have yet to see a BFOQ for the Foreign Service.

The Foreign Service, of course, is not alone. There is mandatory retirement age for state and local police (55-60) federal firefighters (57); federal law enforcement and corrections officers, including DSS agents (57); air traffic controllers, commercial airline pilots (60) and even bus drivers (65). 

You will note that all the above occupations with earlier than normal retirement ages share a "public safety" component. Would the American public or a foreign public be harmed if Foreign Service employees worked beyond 65?

If Colton v. Clinton goes to trial, we would perhaps learn how many FS employees are subjected to MAR annually? How many MAR waivers are granted? How many waivers are granted to SFS members and regular members of the FS? Evidence of performance pre-65 or post 65. And BFOQs. And those are just for starters.

And that's why Colton v. Clinton would be a much more interesting case to follow than its predecessor if/when it goes to trial.