II 116th CONGRESS 1st Session S. 497 IN THE SENATE OF THE UNITED STATES February 14, 2019 Mr. Cardin (for himself, Mr. Booker , Mr. Coons , Mr. Schatz , Mrs. Shaheen , and Mr. Reed ) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs A BILL To improve diversity and inclusion in the workforce of national security agencies, and for other purposes.

1. Short title This Act may be cited as the National Security Diversity and Inclusion Workforce Act of 2019 . 2. Findings Congress finds the following: (1) The greatest national asset of the United States in protecting the homeland and advancing the interests of the United States abroad is the talent and diversity of the national security workforce. (2) The United States has made important progress toward harnessing the extraordinary range of backgrounds, cultures, perspectives, skills, and experiences of the population of the United States toward keeping the United States safe and strong. (3) The 2015 National Security Strategy recognized that the diversity of the national security workforce of the United States is a strategic asset that enhances the ability of the United States to lead on the global stage. (4) Secretary of State Mike Pompeo remarked at his nomination hearing before the Committee on Foreign Relations of the Senate in April 2018 that he deeply believed the workforce of the Department of State must be diverse in every sense of the word . (5) In March 2011, the Military Leadership Diversity Commission demonstrated that minorities and women are still underrepresented among the top leadership of the Armed Forces, as compared with the members they lead. (6) Although African Americans, Native Americans (including Native Hawaiians), and Asians represent 21 percent of the workforce of the Department of State, in 2018, only 8 percent and 7 percent of the senior positions in the civil service and the Foreign Service at the Department of State, respectively, were occupied by members of these groups. (7) Although Latinos or Hispanics, represent 7 percent of the workforce of the Department of State, in 2018, only 5 percent of the senior positions in the civil service and the Foreign Service at the Department of State were occupied by members of these groups. (8) As of 2018, African Americans, Asians, and other racial minorities (including Native Hawaiians and other Pacific Islanders, American Indians, and Alaska Natives) represented 33 percent of the active duty enlisted members of the Armed Forces but only 23 percent of the officer corps of the Armed Forces, while members of the Armed Forces of Hispanic origin represented 18 percent of the enlisted force but only 8 percent of the officer corps. (9) In the intelligence community, African Americans, Latinos or Hispanics, Native Americans, and Asians, along with other minority groups, represented 25 percent of the employees, but only 13 percent of the senior positions. (10) The percentages of Latinos or Hispanics as part of the overall Federal workforce and in senior positions in the Federal workforce are even lower, at 8.6 percent and 4.6 percent, respectively, as compared to the general population of the United States, which is 17 percent Latino or Hispanic. (11) With regard to gender diversity, of the individuals in senior positions in the civil service or the Foreign Service at the Department of State 40 percent and 32 percent are female, respectively. For the Department of Defense, 24 percent of the individuals in senior civilian positions are female, of the senior grades of the Armed Forces, 8 percent of the officers are female, and 12 percent of enlisted members of the Armed Forces are females. Of the individuals in senior positions in the intelligence community, 30 percent are female, compared to the overall Federal workforce, which is 42 percent female. (12) In concert with the findings of the Military Leadership Diversity Commission, the amendments made by section 519 of the National Defense Authorization Act for Fiscal Year 2013 ( Public Law 112–239 ; 126 Stat. 1721) mandated that the Armed Forces develop and implement a plan to accurately measure the efforts of the Department of Defense and Coast Guard to achieve a dynamic, sustainable level of members of the armed forces (including reserve components) that, among both commissioned officers and senior enlisted personnel of each armed force, will reflect the diverse population of the United States eligible to serve in the armed forces, including gender specific, racial, and ethnic populations. . (13) The amendments made by section 1011 of the Intelligence Reform and Terrorism Prevention Act of 2004 ( Public Law 108–458 ; 118 Stat. 3643) called on the intelligence community to prescribe personnel policies and programs that ensure its personnel are sufficiently diverse for purposes of the collection and analysis of intelligence through the recruitment and training of women, minorities, and individuals with diverse ethnic, cultural, and linguistic backgrounds . (14) The Department of State Authorities Act, Fiscal Year 2017 ( Public Law 114–323 ), urges the State Department to promote a diverse representation among mid- and senior-level career professionals and section 101 of the Foreign Service Act of 1980 ( 22 U.S.C. 3901 ) urges the Department of State to develop policies to encourage the entry into and advancement in the Foreign Service by persons from all segments of American society. 3. Statement of policy It is the policy of the United States that— (1) in order to protect the homeland and advance the interests of the United States abroad, national security agencies of the Federal Government must have a workforce that reflects the rich composition and talent of its citizenry; (2) the skills, knowledge, perspectives, ideas, and experiences of all of the members of the workforce of national security agencies contribute to the vitality and success of their national security mission; (3) promoting diversity and inclusion within the national security workforce must be a joint effort and requires engagement by senior leadership, managers, and the entire workforce, as well as effective collaboration among those responsible for human resources, equal employment opportunity, and diversity and inclusion issues; and (4) as the United States becomes more diverse and the challenges it faces more complex, the United States must continue to invest in policies to recruit, retain, and develop the best and brightest from all segments of the population of the United States. 4. Definitions In this Act: (1) Applicant flow data The term applicant flow data means data that tracks the rate of applications for job positions among demographic categories. (2) Appropriate congressional committees The term appropriate congressional committees means— (A) the Committee on Foreign Relations, the Committee on Armed Services, the Committee on Homeland Security and Governmental Affairs, the Select Committee on Intelligence, and the Committee on Appropriations of the Senate; and (B) the Committee on Foreign Affairs, the Committee on Armed Services, the Committee on Homeland Security, the Permanent Select Committee on Intelligence, and the Committee on Appropriations of the House of Representatives. (3) Diversity The term diversity means diversity of persons based on gender, race, ethnicity, disability status, veteran status, sexual orientation, gender identity, national origin, and other demographic categories. (4) Foreign Service The term Foreign Service has the meaning given that term in section 102 of the Foreign Service Act of 1980 ( 22 U.S.C. 3902 ). (5) Intelligence community The term intelligence community has the meaning given that term in section 3 of the National Security Act of 1947 ( 50 U.S.C. 3003 ). (6) National security agency The term national security agency means— (A) the Department of State; (B) the United States Agency for International Development; (C) the Department of Defense; (D) the Armed Forces; (E) each element of the intelligence community; (F) the Office of International Affairs and the Office of Critical Infrastructure Protection of the Department of the Treasury; (G) the National Security Division of the Department of Justice and the Federal Bureau of Investigation; (H) the Department of Homeland Security; (I) the Foreign Agricultural Service of the Department of Agriculture; and (J) any other Federal agency that is primarily engaged in diplomacy, development, defense, intelligence, law enforcement, or homeland security. (7) Member of the Foreign Service The term member of the Foreign Service means a member of the Foreign Service described in section 103 of the Foreign Service Act of 1980 ( 22 U.S.C. 3903 ). (8) Workforce The term workforce means an individual serving in a position— (A) in the civil service (as defined in section 2101 of title 5, United States Code); (B) as a member of the Foreign Service; or (C) as an officer or enlisted member of an armed force. 5. Collection, analysis, and dissemination of workforce data (a) Initial reporting (1) In general Not later than 180 days after the date of enactment of this Act, and subject to paragraph (3), the head of each national security agency shall make available to the public, the appropriate congressional committees, and the workforce of the national security agency a report which includes aggregate demographic data and other information regarding the diversity and inclusion efforts of the workforce of the national security agency. (2) Contents A report made available under paragraph (1)— (A) shall include unclassified reports and barrier analyses relating to diversity and inclusion efforts; (B) shall include aggregate demographic data— (i) by segment of the workforce of the national security agency and grade or rank; (ii) relating to attrition and promotion rates; (iii) that addresses the compliance of the national security agency with validated inclusion metrics, such as the New Inclusion Quotient index score; and (iv) that provides demographic comparisons to the relevant nongovernmental labor force and the relevant civilian labor force; (C) shall include an analysis of applicant flow data, including the percentage and level of positions for which data are collected, and a discussion of any resulting policy changes or recommendations; (D) shall include demographic data relating to participants in professional development programs of the national security agency and the rate of placement into senior positions for participants in such programs; (E) shall include any voluntarily collected demographic data relating to the membership of any external advisory committee or board to which individuals in senior positions in the national security agency appoint members; and (F) may include data in proportions or percentages to account for concerns relating to the protection of classified information. (3) Intelligence community The elements of the intelligence community may make available a single report with respect to the diversity and inclusion efforts of the workforce of the elements of the intelligence community under this subsection. (b) Updates After making available a report under subsection (a), the head of each national security agency shall annually provide a report (which may be provided as part of an annual report required under another provision of law) to the workforce of the national security agency (including senior leadership), the public, and the appropriate congressional committees that includes— (1) demographic data and information on the status of diversity and inclusion efforts of the national security agency; (2) an analysis of applicant flow data, including the percentage and level of positions for which data are collected, and a discussion of any resulting policy changes or recommendations; and (3) demographic data relating to participants in professional development programs of the national security agency and the rate of placement into senior positions for participants in such programs. (c) Expand the collection and analysis of voluntary applicant flow data (1) In general The head of each national security agency shall develop a system to collect and analyze applicant flow data for as many positions within the national security agency as practicable, in order to identify areas for improvement in attracting diverse talent, with particular attention to senior and management positions. (2) Phased implementation The collection of applicant flow data may be implemented by the head of a national security agency in a phased approach commensurate with the resources available to the national security agency. (d) Identify additional categories for voluntary data collection of current employees (1) In general The head of each national security agency may submit to the Office of Management and Budget and to the appropriate congressional committees the recommendation of the head regarding whether the national security agency should voluntarily collect more detailed data on demographic categories in addition to the race and ethnicity categories specified in the statistical policy directive issued by the Office of Management and Budget entitled Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity . (2) Process In making a recommendation under paragraph (1), the head of a national security agency shall— (A) engage in close consultation with internal stakeholders, such as employee resource or affinity groups; (B) ensure that there is clear communication with the workforce of the national security agency— (i) to explain the purpose of the potential collection of such data; and (ii) regarding legal protections relating to any anticipated use of such data; and (C) ensure adherence to relevant standards and guidance issued by the Federal Government. 6. Professional development opportunities and tools (a) Conduct stay and exit interviews or surveys (1) Retained members Each national security agency shall conduct periodic interviews with a representative cross-section of the members of the workforce of the national security agency to— (A) understand the reasons of the members for remaining in a position in the national security agency; and (B) receive feedback on workplace policies, professional development opportunities, and other issues affecting the decision of the members to remain. (2) Departing members Each national security agency shall provide an opportunity for an exit interview or survey to each member of the workforce of the national security agency who separates from service with the national security agency, to understand better the reasons of the member for leaving. (3) Use of analysis from interviews and surveys Each national security agency shall analyze and use information obtained through interviews and surveys under paragraphs (1) and (2), including to evaluate— (A) if and how the results of the interviews differ by gender, race, national origin, sexual orientation, gender identity, disability status, and other demographic categories; and (B) whether to implement any policy changes or make any recommendations as part of a report required under section 5. (b) Expand provision of professional development and career advancement opportunities (1) In general Each national security agency is authorized to expand professional development opportunities that support the mission needs of the national security agency, such as— (A) academic programs; (B) private-public exchanges; and (C) detail assignments to relevant positions in— (i) private or international organizations; (ii) State, local, and tribal governments; (iii) other branches of the Federal Government; or (iv) professional schools of international affairs. (2) Training for senior positions (A) In general Each national security agency shall offer, or sponsor members of the workforce of the national security agency to participate in, a Senior Executive Service candidate development program or other program that trains members of the workforce of the national security agency on the skills required for appointment to senior positions in the national security agency. (B) Requirements In determining which members of the workforce of the national security agency are granted professional development or career advancement opportunities, a national security agency shall— (i) ensure any program offered or sponsored by the national security agency under subparagraph (A) comports with the requirements of subpart C of part 412 of title 5, Code of Federal Regulations, or any successor thereto, including merit staffing and assessment requirements; (ii) consider the number of expected vacancies in senior positions as a factor in determining the number of candidates to select for such programs; (iii) understand how participation in any program offered or sponsored by the national security agency under subparagraph (A) differs by gender, race, national origin, sexual orientation, gender identity, disability status, and other demographic categories; and (iv) actively encourage participation from a range of demographic categories, especially from categories with consistently low participation. (3) Tracking data Each national security agency shall— (A) track demographic data relating to participants in professional development programs and the rate of placement into senior positions for participants in such programs; and (B) evaluate such data on an annual basis to look for ways to improve outreach and recruitment for such programs consistent with merit system principles. (c) Assignment restrictions (1) In general Each national security agency that places assignment restrictions on members of the workforce of the national security agency or otherwise prohibits certain geographic assignments due to a security determination shall ensure a review process exists for such a restriction or prohibition that is consistent with part 147 of title 32, Code of Federal Regulations (relating to adjudicative guidelines for determining eligibility for access to classified information), or any successor thereto, and any applicable counterintelligence considerations. (2) Notice Each national security agency shall ensure that members of the workforce of the national security agency affected by a restriction or prohibition described in paragraph (1) are informed of the right to seek review and the process for doing so. 7. Leadership engagement and accountability (a) Reward and recognize efforts To promote diversity and inclusion (1) In general Each national security agency shall implement performance and advancement requirements that reward and recognize the efforts of individuals in senior positions and supervisors in the national security agency in fostering an inclusive environment and cultivating talent consistent with merit system principles, such as through participation in mentoring programs or sponsorship initiatives, recruitment events, and other similar opportunities. (2) Outreach events Each national security agency shall create opportunities for individuals in senior positions and supervisors in the national security agency to participate in outreach events and to discuss issues relating to diversity and inclusion with the workforce on a regular basis, including with employee resource groups. (b) Collect and disseminate voluntary demographic data of external advisory committees and boards Each national security agency that has an external advisory committee or board to which individuals in senior positions in the national security agency appoint members is strongly encouraged by Congress to— (1) collect voluntary demographic data from the members of committee or board; and (2) ensure the external advisory committee or board is developed, reviewed, and carried out by teams that represent the diversity of the organization. (c) Expand training on bias, inclusion, and flexible work policies (1) In general Each national security agency shall— (A) expand the provision of training on bias, including implicit or unconscious bias, micro-inequities, inclusion, and flexible work policies to the workforce of the national security agency; and (B) make micro-inequities and bias training, including on implicit or unconscious bias, mandatory for— (i) individuals in senior positions in the national security agency; (ii) other individuals holding management positions in the national security agency; and (iii) individuals in positions at the national security agency having responsibilities relating to outreach, recruitment, hiring, career development, promotion, or security clearance adjudication. (2) Phased implementation The provision of training required under paragraph (1) may be implemented in a phased approach commensurate with the resources of the national security agency. (3) Low inclusion scores Each national security agency shall make available training on implicit or unconscious bias for members of the workforce of a bureau, directorate, division, office, or other component of the national security agency the inclusion scores of which, such as those measured by the New Inclusion Quotient index score, rank below the average for the national security agency for a period of 3 years or longer. (4) Best practices Each national security agency shall give special attention to ensuring the continuous incorporation of research-based best practices in training provided under this subsection, including best practices relating to addressing the intersection between certain demographics and job positions. 8. Recruitment (a) In general Each national security agency should— (1) continue to seek a diverse and talented pool of applicants; (2) have diversity recruitment as a goal of the human resources department or equivalent entity, with outreach at appropriate colleges, universities, and diversity organizations and professional associations; and (3) intensify, identify, and build relationships with qualified potential minority candidates. (b) Scope The diversity recruitment initiatives described in subsection (a) should include— (1) recruiting at historically black colleges and universities, Hispanic-serving institutions, women’s colleges, and colleges that typically serve majority minority populations; (2) sponsoring and recruiting at job fairs in urban communities; (3) placing job advertisements in newspapers, magazines, and job sites oriented toward diverse groups; (4) providing opportunities through highly respected, international leadership programs, that focus on diversity recruitment and retention; and (5) cultivating partnerships with organizations dedicated to the advancement of the profession of international affairs and national security to advance shared diversity goals. 9. General provisions (a) Rule of construction Nothing in this Act shall be construed to impair or otherwise affect— (1) the authority granted by law to an executive department, agency, or the head thereof, or the status of that executive department or agency within the Federal Government; or (2) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals. (b) Implementation This Act shall be implemented consistent with applicable law. (c) No private right of action This Act is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.