The State of Minority- and Women- Owned ... - Cleveland.com

Legal Standards for Government Affirmative Action Contracting Programs
[sic] the better indicator of discrimination in public contracting” and supports the position that
discrimination was present before the enactment of the ordinances. 113
c. Unremediated Markets Data
It is also useful to measure M/WBE participation in the absence of affirmative action goals, if
such evidence is available. Evidence of race and gender discrimination in relevant
“unremediated” 114 markets provides an important indicator of what level of actual M/WBE
participation can be expected in the absence of government mandated affirmative efforts to
contract with M/WBEs. 115 This is particularly relevant for an agency such as the City which has
not applied race- and gender-conscious remedies to all its locally-funded contracts. As the
Eleventh Circuit has acknowledged, “the program at issue may itself be masking discrimination
that might otherwise be occurring in the relevant market.” 116 The courts, including the Sixth
Circuit, are clear that the government has a compelling interest in not financing the evil of
private prejudice with public dollars. 117 If M/WBE utilization is below availability in
unremediated markets, an inference of discrimination may be supportable. The virtual
disappearance of M/WBE participation after programs have been enjoined or abandoned strongly
indicates substantial barriers to minority subcontractors, “raising the specter of racial
discrimination.” 118 Unremediated markets analysis addresses whether the government has been
and continues to be a “passive participant” in such discrimination, in the absence of affirmative
action remedies. 119 The results of non-goals contracts can help to demonstrate that, but for the
interposition of remedial affirmative action measures, discrimination would lead to disparities in
government contracting. The “dramatic decline in the use of M/WBEs when an affirmative
action program is terminated, and the paucity of use of such firms when no affirmative action
program was ever initiated,” has been held to be proof of the government’s compelling interest in
employing race- and gender-conscious measures. 120 Evidence of unremediated markets
“sharpens the picture of local market conditions for MBEs and WBEs.” 121
d. Anecdotal Evidence
Anecdotal evidence of experiences with discrimination in contracting opportunities is relevant
because it goes to the question of whether observed statistical disparities are due to
113 Id. at 987-988.
114 “Unremediated market” means “markets that do not have race- or gender-conscious subcontracting goals in
place to remedy discrimination.” Northern Contracting II, at *36.
115 See, e.g., Western States, 407 F.3d at 992 (Congress properly considered evidence of the “significant drop in
racial minorities’ participation in the construction industry” after state and local governments removed
affirmative action provisions).
116 Engineering Contractors II, 122 F.3d at 912.
117 See, e.g., Drabik II, 214 F.3d at 734-735.
118 Adarand VII, 228 F.3d at 1174.
119 See also Philadelphia III, 91 F.3d at 599-601.
120 BAGC v. Chicago, 298 F. Supp.2d at 737; see also Concrete Works IV, 321 F.3d at 987-988.
121 Concrete Works II, 36 F.3d at 1529.
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