February 7, Transmitted electronically to regarding:

Transcription

1 February 7, 2014 Joyce Cofield Sheila Clark Executive Director Director Office of Minority and Women Inclusion Office of Minority and Women Inclusion Office of the Comptroller of the Currency Board of Governors of the Federal Reserve System 400 7th Street SW 20th Street and Constitution Avenue NW Washington, DC Washington DC Melodee Brooks Linda Dent Senior Deputy Director Acting Director Office of Minority and Women Inclusion Office of Minority and Women Inclusion Federal Deposit Insurance Company National Credit Union Administration th Street NW 1775 Duke Street Washington, DC Alexandria, VA Stuart Ishimaru Pamela Gibbs Director Director Office of Minority and Women Inclusion Office of Minority and Women Inclusion Consumer Financial Protection Bureau Securities and Exchange Commission 1700 G Street NW 100 F Street NE Washington, DC Washington, DC Re: Request For Comment on the Proposed Interagency Policy Statement Establishing Joint Standards For Assessing the Diversity Policies and Practices of Entities Regulated By the Agencies. Transmitted electronically to regarding: OCC: Docket ID OCC Federal Reserve: Docket No. OP-1465 FDIC: NCUA: CFPB: Docket No. CFPB SEC: Release No , File No. S

2 Table of Contents Introduction... pgs. 3-4 Background. pgs. 5-8 I. The lack of African American and Latino representation in upper management.. pgs. 5-6 II. The lack of supplier diversity in the industry.. pgs. 6-7 III. The importance of diversity... pgs. 7-8 IV. Congressional hearings and GAO studies related to diversity pg. 8 Principles. pgs I. The Agencies should require compliance with uniform minimum diversity standards to assess whether the regulated entities are achieving diversity, regardless of the entities size.. pgs II. The Agencies should regularly assess the diversity policies and practices of the regulated entities, utilize traditional examinations, and monitor the regulated entities diversity policies and practices, on an annual basis. pgs III. The Agencies should exercise the full strength of their authority to enforce the Standards up to and including bringing relevant civil claims, terminating contracts and/or prohibiting future contracts with the regulated entities found to be in violation of the Standards. pg Conclusion. pg. 14 2

3 Dear Ms. Cofield, Ms. Clark, Ms. Brooks, Ms. Dent, Mr. Ishimaru, and Ms. Gibbs, Thank you for the opportunity to respond to the Request for Comments on the Proposed Interagency Policy Statement Establishing Joint Standards for Assessing the Diversity Policies and Practices of Entities Regulated by the Agencies (Standards). In addition, we appreciate your decision to extend the initial comment period from December 24, 2013 to February 7, The National Urban League, and the undersigned civil rights organizations and advocacy groups, are pleased to provide our views related to the Standards, and strongly encourage the Offices of Minority and Women Inclusion at the Office of the Comptroller of the Currency, the Board of Governors at the Federal Reserve System, the Federal Deposit Insurance Corporation, the National Credit Union Administration, the Consumer Financial Protection Bureau, and the Securities and Exchange Commission (the Agencies) to adopt our principles to ensure diversity is achieved for minorities and women in the financial services industry. Introduction The National Urban League s mission is to enable communities of color to secure economic selfreliance, parity, power and civil rights. Founded in 1910, the National Urban League and our 95 affiliates provide direct services to over 2 million Americans in 36 states and the District of Columbia, as well as perform relevant policy research and advocacy on behalf of this constituency. Our core programming includes job training and placement, out-of-school learning, head start, health and wellness and our home ownership and asset building suite of services: financial literacy, pre-purchase and foreclosure mitigation housing counseling, and entrepreneurship incubation services to communities of color. The efficacy of the Standards are of particular importance to us as we seek to ensure that women and minorities have the opportunity to secure jobs and move throughout the ranks of the financial industry. During the debate surrounding the development and passage of The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank,) the National Urban League partnered with the 1 On December 5, 2013, the National Urban League sent a letter urging the Agencies to extend the deadline 45 days to allow interested parties the opportunity to submit insightful comments. 3

4 Congressional Black Caucus (CBC) who, led by Representative Maxine Waters, now, Ranking Member of the U.S. House of Representatives Financial Services Committee, strongly advocated for the establishment of the Agencies. According to Ranking Member Waters, Many industries lack the inclusion and participation of people of color and women, perhaps none more egregiously than the financial services sector. 2 The CBC staged a walkout, and threatened to vote against final passage of Dodd-Frank, to ensure measures to increase and achieve diversity were included in the bill. As a result, Section 342 was included, establishing the Agencies as the watchdog of the industry s diversity policies and practices. While we look forward to championing the good work the Agencies may do in the future, we believe the Standards as currently drafted are wholly insufficient to execute the intent and the spirit of Section 342. While a good start, the Agencies Standards clearly do not recognize the importance of the role the Agencies must play, and do not afford them the requisite authority to achieve diversity in the financial services industry. We strongly encourage the Agencies to strengthen the Standards by taking into account the following guiding principles to ensure the objectives of Section 342 are met: 1. The Agencies should require compliance with uniform minimum diversity standards to assess whether the regulated entities are achieving diversity, regardless of the entities size. 2. The Agencies should regularly assess the diversity policies and practices of the regulated entities, utilize traditional examinations, and monitor the regulated entities diversity policies and practices, on an annual basis. 3. The Agencies should exercise the full strength of their authority to enforce the Standards up to and including bringing relevant civil claims, terminating contracts and/or prohibiting future contracts with the regulated entities found to be in violation of the Standards. 2 Waters Wins Big for Minorities, Women in Wall Street Reform and Consumer Protection Bill, Representative Maxine Waters Press Releases, (July 2010) 4

5 Background I. The lack of African American and Latino representation in upper management There is a clear lack of diversity in the ranks of upper management in the financial services industry. According to the Government Accountability Office (GAO,) overall diversity at the management level did not change substantially from 1993 through 2008, and diversity in senior positions remains limited. 6 Over 89 percent of senior-level managers are White. 7 While minorities represent less than 11 percent of all upper management positions, White men make up 64 percent. 8 Although African Americans make up 12 percent of the population, their representation in senior management positions dropped from 3.1 percent, in 2007 to 2.7 percent, in The representation of African Americans in first- to mid-level management dropped from 7.2 percent, in 2007 to 6.9 percent, in From 2007 to 2011, the representation of African Americans went down in both management levels, while the representation of other specific races/ ethnicities either increased or remained stable. 11 Latinos are also underrepresented in the industry, although, they fare better than African Americans. 12 The percentage of first- and mid-level Latinos managers increased from 5.2 percent to 5.5, between 2007, and 2011, and from 3 percent to 3.3 percent in upper management. 13 The low numbers of African Americans and Latinos in upper management is despite their recent uptick in MBA enrollments. 14 According to a recent NAACP report, For the foreseeable future, the banking industry in the United States is expected to be a significant source of well paid jobs. It is important that this sector be active in bridging our nation s gap in racial economic equality and in closing the employment 6 Trends and Practices in the Financial Services Industry and the Agencies after the Recent Financial Crisis, Government Accountability Office, pg. 4 (April 2013). 7 Id., at pg Trends and Practices in the Financial Services Industry and the Agencies after the Recent Financial Crisis, Government Accountability Office, pg. 13 (April 2013). And NAACP Opportunity & Diversity Report Card, The Consumer Banking Industry, National Association of the Advancement of Colored People (NAACP) pg. 7 (Jan 2014). 9 NAACP Opportunity & Diversity Report Card, The Consumer Banking Industry, National Association of the Advancement of Colored People (NAACP) pg. 7 (Jan 2014). 10 Id., at pg Id., at pg Id., at pg Id., at pg NAACP Opportunity & Diversity Report Card, The Consumer Banking Industry, National Association of the Advancement of Colored People (NAACP) pg. 10 (Jan 2014). 5

6 divide that still exists for people of color. 15 One million jobs are going to be added to the financial services sector between 2010 and Jobs in the financial services industry have successfully helped hardworking Americans reach the middle class. 17 More must be done to ensure African and Americans and Latinos benefit from these opportunities. The anticipated growth in the financial services industry can play a role in reducing the unemployment, income and wealth gaps for African Americans, and Latinos. According to the Bureau of Labor Statistics, while the national unemployment rate was 6.7 percent in December 2013, it was 11.9 percent for African Americans, and 8.3 percent for Latinos. 18 Progressive diversity policies and practices should be implemented to ensure qualified African American and Latino candidates have access to the financial sector. 19 According to US News, the median salary for financial managers was $109,740, in The lowest-paid managers earned $59,630, and the highest-paid managers earned more than $187, Access to these positions would help more African Americans and Latinos enter the middle class, and lessen the income and wealth gaps that exist between minorities and Whites. According to a recent National Urban League and Zillow study, while the median household income is 62,000 for Whites, and 77,000 for Asians; it is only $39,000 for African Americans, and $43,000 for Latinos. 22 According to the National Urban League s 2013 Equality Index, Whites have over 22 times the wealth than African and Americans, and 13 times the wealth of Latinos. 23 II. The lack of supplier diversity in the industry 15 Id., at pg Id., at pg Id., at pg Bureau of Labor Statistics News Release, The Employment Situation December 2013, (Jan. 2014). 19 Overall Trends in Management-Level Diversity and Diversity Initiatives, , Government Accountability Office, pg. 4 (April 2013). 20 Best Business Jobs: Financial Manager, U.S. News and World Report, 21 Id. 22 A House Divided, How Race Colors the Path to Homeownership, Zillow and the National Urban League, pg. 15 (Jan. 2014) State of Black America, Equality Index, National Urban League, pgs. 34 and 38, (April 2013). 6

7 Research indicates the industry s lack of supplier diversity is not a priority for the regulated entities. 24 The nation s 5 biggest banks received either a D, or an F, when measuring how often they contracted with minorities. 25 The most any bank spent with an African American-owned firm was 1.6 percent. 26 The most any bank contracted with a minority firm was 5.3 percent. 27 This is unfortunate, given the number of viable minority-owned firms with which the industry can contract. There are 1.9 million African American-owned businesses in the U.S. 28 According to Marc H. Morial, President and CEO of the National Urban League, Many black-owned firms still remain very small businesses, 87 percent of all African American-owned firms earn less than $50,000 dollars a year in receipts. 29 Government intervention can help play a role to ensure women and minorities have fair opportunities to contract with the regulated entities. III. The importance of diversity Diversity within the financial services industry is vitally important to promoting innovation and creativity in the industry and to developing a more inclusive workforce to achieve a fair and just economy. 30 Diversity helps underserved communities gain access to new jobs and opportunities. 31 Moreover, it firms industries to expand their perspective concerning different races and genders, and affords them the opportunity to increase their customer base. 32 According to The Greenlining Institute s (Greenlining) Executive Director, Orson Aguilar, We desperately need people of color in these positions - people who have lived and breathed how financial policies and institutions impact their communities. 33 During the subprime mortgage boom, African Americans and Latinos were 3 times more likely to be steered into subprime loans than Whites, even though they qualified for 24 NAACP Opportunity & Diversity Report Card, The Consumer Banking Industry, National Association of the Advancement of Colored People (NAACP,) Appendix A., pg. 31 (Jan 2014). 25 Id., at Appendix A., pg Id., at pg Id., at pg Census Bureau Reports the Number of Black-Owned Businesses Increased at Triple the National Rate, U.S. Census Bureau (Feb. 2011). 29 African American Owned Businesses on the Rise, Z. Byron Wolf, ABCNews.com, (Feb. 2011). 30 Financial Services Diversity Initiative, H. Con Res. 140, Section 2, Representative Gregory Meeks (D-NY) (110 th Congress,) pg. 7(Passed House, Sept. 2007). 31 Id., at pg Why 20 Government Offices You ve Never heard of Are Key to Financial Recovery, The Greenlining Institute, (May 2013) 33 Id. 7

8 prime. This was a major cause of the foreclosure crisis, and is less likely to have occurred if more African Americans and Latinos were in upper management at the time. 34 Ensuring that African Americans and Latinos climb the ranks into upper management allows underserved communities, and the regulated entities, to thrive, and can serve to protect consumers from abusive practices. 35 IV. Congressional hearings and GAO studies related to diversity Congressional hearings in 2004, 2006, and 2008 raised concerns about the lack of diversity throughout the ranks in the financial sector, especially in upper management. 36 Several GAO reports were commissioned to study the trend. 37 GAO, as a result, announced 9 principles to achieve diversity. 38 Unfortunately, there are still some regulated entities that do not see the importance of these efforts. 39 The nation s institutions continue to turn a blind-eye to the benefits of inclusion. 40 GAO concluded, Without a sustained commitment among financial services firms to overcoming challenges to recruiting and maintaining minority candidates and obtaining buy-in from key employees, limited progress would be possible in fostering a more diverse workplace. 41 Principles I. The Agencies should require compliance with uniform minimum diversity standards to assess whether the regulated entities are achieving diversity, regardless of the entities size. 34 Id. 35 Why 20 Government Offices You ve Never heard of Are Key to Financial Recovery, The Greenlining Institute, (May 2013) 36 Overall Trends in Management-Level Diversity and Diversity Initiatives, , Government Accountability Office, pg. 1 (May 2010). 37 Trends and Practices in the Financial Services Industry and the Agencies after the Recent Financial Crisis, Government Accountability Office, pg. 5 (April 2013). 38 Id., at pg Trends and Practices in the Financial Services Industry and the Agencies after the Recent Financial Crisis, Government Accountability Office, pg. 18 (April 2013). 40 Id., at pg Id., at pg. 4. 8

9 Minimum standards must be established for the law to have the proper impact. Voluntary disclosure of information the entity deems relevant, as subscribed to the regulated entities in the Standards, is unlikely to increase diversity, or even to promote it. 42 We question why the Agencies opted for this low standard. 43 Nothing in Section 342 precludes the Agencies from requiring mandatory disclosure of the regulated entities diversity policies and practices. Voluntary actions have been the status quo for a century, and they ve gotten us a financial sector that s overwhelmingly white and male. 44 While we support the filing of Employer Information Reports (EEO-1 Reports) for the covered entities, and those who are not currently covered, we question whether encouraging the regulated entities to file EEO-1 Reports is sufficient to satisfy the statute. 45 We strongly urge the Agencies to require the regulated entities to not only file EEO-1 reports, but to use the requirements in Section 1116 of the Housing and Economic Recovery Act (HERA) and the Final Rule that resulted, as a model to achieve diversity. 46 Given the similar provisions in HERA and the Dodd-Frank Act, the proposed regulations serve as a best guide to what the financial services agencies should include in their Standards. 47 HERA requires its regulated entities to disclose pertinent information to the agencies to assess whether the firms are working to achieve diversity, including: 1. A statement of the total amount of contracts entered into, and the total amount paid to contractors and the percentage of that amount paid to contractors that are minorities and women; 2. The EEO-1 Report used by the EEOC and the OFCCP, or a similar report; 3. Data showing, by minority and gender: a. The number of individuals applying for employment and the number of individuals hired for employment; b. The number of separations from employment, voluntary and involuntary; 42 Proposed Interagency Policy Statement Establishing Joint Standards For Assessing the Diversity Policies and Practices of Entities Regulated By the Agencies and Request For Comment, III. Proposed Approach to Assessment, pg. 20 (2013). 43 We do not believe the size of the regulated entity is relevant; firms will be held accountable based on their diversity policies and practices, not the number of women or minorities they hire or contract with. 44 Bank Regulators Proposed Diversity Standards Short on Specifics, The Greenlining Institute, (October 24, 2013) 45 Dodd-Frank Wall Street Reform and Consumer Protection Act, Title III, Section 342(a)(2) C.F.R. Part , pgs (Eff. Jan. 2011) 47 Finance Reform Bill Includes Unexpected Employment Law Obligations, Jon A. Geier and Zina Delder, Paul Hastings, (July 2010) 9

10 c. The number of individuals applying for promotion, and the number of individuals promoted. 4. Data regarding the number of equal opportunity complaints filed against the regulated entity. 5. Amounts paid to claimants for settlements or judgment on discrimination complaints. 6. Descriptions of all outreach activity to low-income, inner city, minority, and women populations. 7. A narrative analysis of the activities considered successful and unsuccessful in achieving the purpose of the regulation, and a description of progress made from the previous year. 8. A narrative analysis of the areas in which the entity needs to improve, along with a description of results the entity expects to achieve in the following year. 48 The Agencies Standards should require mandatory disclosure of the provisions listed in Section 1116 of HERA and its Final Rule. Inclusion of these provisions will not only promote diversity; it will to help achieve it. II. The Agencies should regularly assess the diversity policies and practices of the regulated entities, utilize traditional examinations, and monitor the regulated entities diversity policies and practices, on an annual basis. A plain reading of Section 342 affords the Agencies the authority, not only to draft the Standards for assessing, but to regularly assess the diversity policies and practices of the regulated entities that they regulate. 49 While the Proposed Policy Statement charges the Agencies with drafting the Standards, it does not acknowledge the Agencies statutory authority to regularly assess the regulated entities diversity policies and practices. Seemingly, as a result, the Agencies do not have the ability to determine whether the Standards are actually being followed. We agree with Greenlining, which said: while this document contains a lot of positive language, it s very general, with no real standards or metrics to assess progress C.F.R. Part , pgs (Eff. Jan. 2011) 49 Dodd-Frank Wall Street Reform and Consumer Protection Act, Title III, Section 342(b)(2)(C) 50 Bank Regulators Proposed Diversity Standards Short on Specifics, The Greenlining Institute, (October 2013) 10

11 Section 342 authorizes the Agencies to regularly assess the diversity policies and practices of the Agencies. While the Agencies cannot enforce civil rights statutes, regulations, or executive orders, the Offices of Minority and Women Inclusion, along with the federal agencies they are located in, were charged with pursuing any remedies resulting from the violations of these civil rights laws. 51 The Agencies would be unable to satisfy this provision, and pursue remedies resulting from violations of the Standards, if they do not have the ability to regularly assess the diversity policies and practices of the regulated entities. Deferring, wholly, to the regulated entities, and to the public, to assess the diversity policies and practices of the entities would prevent the Agencies from fulfilling their statutory requirement of seeking remedies resulting from the violations of civil rights laws. In addition, implicit in Section 342(b)(2)(C) is the Agencies duty to regularly assess the regulated entities diversity policies and practices. Although the Agencies may not be construed to require any specific action based on the findings of the assessment, they are expected to regularly assess the diversity policies and practices of the regulated entities to determine whether the Standards are being followed. 52 The Agencies are expected to make findings based on the regular assessments that they conduct of the regulated entities diversity policies and practices. However, the Agencies Standards seem to pass the buck to the regulated entities, and to the public, to conduct the assessments. This is not what Section 342 intended. To be in accordance with the statute, the Agencies have to regularly assess the diversity policies and practices of the regulated entities. We applaud the Agencies efforts to bring transparency into financial sector, and believe it is a necessary first step. Public transparency will help to promote diversity in the industry, especially if a uniform minimum diversity standard, such as HERA is followed. However, the Agencies must be more proactive, not only to promote, but to increase diversity in the industry. 53 According to the Fiscal Crisis Inquiry Commission s 2011 report, The sentries were not at their posts, in no small 51 Id., at Section 342(a)(3) 52 Id., at Section 342(b)(2)(C) 53 The Agencies should make the disclosures provided by the regulated entities public, in addition to the Agencies findings based on the assessments. 11

12 part due to the widely accepted faith in the ability of financial institutions to effectively police themselves. 54 The only way to provide the regulated entities, and the public, guidance, and assistance to understand the entities diversity policies and practices, and to achieve diversity, is for the Agencies to assess the policies and practices, themselves. According to Fiscal Crisis Inquiry Commission s 2011 report, We do place special responsibility with the public leaders charged with protecting our financial system, those entrusted to run our regulatory agencies, and the chief executives of companies Tone at the top does matter. 55 Assessing the diversity policies and practices demonstrates the Agencies will be active participants in the regulatory process, which was the intent of the legislation. 56 Moreover, the use of traditional examinations is reasonably assumed from the text of Section Nothing in the bill precludes, implicitly or explicitly, the use of traditional examinations. Traditional examinations help incentivize compliance, ensure transparency, and affect change; self-assessments, generally, do not. 59 The Agencies did not provide a reason for not requiring traditional examinations, or supervisory assessments, in the Standards. 60 As is custom for most supervisory assessments or traditional examinations in the industry, the Agencies have the ability to, and should, monitor the regulated entities diversity policies and practices on an annual basis. 61 We support the Agencies efforts encouraging the regulated entities to provide annual disclosures through appropriate communications methods. 62 However, we believe the Agencies should require annual monitoring of the regulated entities, using traditional 54 The Fiscal Crisis Inquiry Commission Report, Final Report of the National Commission on the Causes of the Financial and Economic Crisis in the United States, pg. xviii (Jan. 2011) 55 Id. at, pg. xxiii 56 Dodd-Frank Wall Street Reform and Consumer Protection Act, Title III, Section 342(b)(C) 57 Proposed Interagency Policy Statement Establishing Joint Standards For Assessing the Diversity Policies and Practices of Entities Regulated By the Agencies and Request For Comment, I. Background, pg. 10 (Oct. 2013). 59 We recommend the use of traditional examinations, similar to the ones used by FHFA to monitor the diversity policies and practices of the entities subject to HERA. 60 Id., at pg C.F.R. Part , pgs (Eff. Jan. 2011) 62 Proposed Interagency Policy Statement Establishing Joint Standards For Assessing the Diversity Policies and Practices of Entities Regulated By the Agencies and Request For Comment, II, 4) Practices to Promote Transparency of Organizational Diversity and Inclusion, pg. 19(Oct. 2013). 12

13 examinations. 63 Similar to the Agencies, and the entities subject to HERA, the regulated entities should be required to publish an annual report, including pertinent disclosures related to their diversity policies and practices. I hope that section 342 puts the entire financial services industry on notice that Congress values workforce and supplier diversity, and possibly even more important that Congress is closely (emphasis added) monitoring both the public and private sector s efforts in these areas. 65 III. The Agencies should exercise the full strength of their authority to enforce the Standards up to and including bringing relevant civil claims, terminating contracts and/or prohibiting future contracts with the regulated entities found to be in violation of the Standards. The Agencies do not wholly lack enforcement authority. While Section 342(b)(2)(C) may not be misconstrued to require the Agencies to take any specific action based on the findings of the assessment; it does not preclude the Agencies from requiring any actions to enforce the law. While any specific actions based on an assessment s finding are precluded by the statute, the agencies are not prohibited from taking responsive action. 66 The Agencies have the ability to require certain actions, so long as they are not specifically required by the statute to do so. 67 Moreover, while the Agencies cannot enforce statutes, regulations or executive orders pertaining to civil rights, the Offices of Minority and Women Inclusion, along with the federal agencies they are located in, were charged with pursuing any remedies resulting from the violations of these civil rights laws. 68 The Agencies, therefore, may serve a role, alerting enforcement agencies, with the authority to bring relevant claims, of civil rights violations, and may terminate contracts, and/ or prohibit future contracts with firms who violate the Standards, so long as the Agencies are not specifically 63 We recommend the use of traditional examinations, similar to the ones used by FHFA to monitor the diversity policies and practices of the entities subject to HERA. 65 Waters Growing Impatient With Implementation of Dodd-Frank Diversity Standards, The Greenlining Institute, (March 2013) 66 Dodd-Frank Wall Street Reform and Consumer Protection Act, Title III, Section 342(b)(2)(C) 67 Id., at Section 342(b)(2)(C) 68 Id., at Section 342(a)(3) 13

14 required to do so. 69 Further, nothing precludes the Agencies from expanding upon these Standards in the future. Conclusion The Agencies were created to increase and achieve diversity in the financial services industry. However, as drafted, the Agencies Standards barely promote it. The Standards, if implemented, are unlikely to have an impact at all in the industry - voluntary disclosure and self- assessments are sad attempts at increasing diversity. The Standards must be mandatory and uniformly applied to be effective. In addition, the Standards should include the provisions included in HERA and be monitored annually, using traditional examinations. Anything less will not satisfy the spirit, or the letter, of Section 342. We strongly encourage the Agencies to adhere to our principles to ensure the objectives of Section 342 are met. Sincerely, National Urban League Center for Responsible Lending National Coalition on Black Civic Participation U.S. Black Chamber of Commerce 69 Id., at Section 342(a)(3) and 342(c)(3) 14