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

Legal Standards for Government Affirmative Action Contracting Programs
discrimination and not to some other non-discriminatory cause or causes. 122 As observed by the
Supreme Court, anecdotal evidence presented in a pattern or practice discrimination case can be
persuasive because it “brought the cold [statistics] convincingly to life.” 123 Testimony about
discrimination by prime contractors, unions, bonding companies, suppliers, and lenders has been
found relevant regarding barriers both to minority firms’ business formation and to their success
on governmental projects. 124 While anecdotal evidence is insufficient standing alone, “[p]ersonal
accounts of actual discrimination or the effects of discriminatory practices may, however, vividly
complement empirical evidence. Moreover, anecdotal evidence of a [government’s] institutional
practices that exacerbate discriminatory market conditions are [sic] often particularly
probative.” 125 “[W]e do not set out a categorical rule that every case must rise or fall entirely on
the sufficiency of the numbers. To the contrary, anecdotal evidence might make the pivotal
difference in some cases; indeed, in an exceptional case, we do not rule out the possibility that
evidence not reinforced by statistical evidence, as such, will be enough.” 126
Most recently, the Fourth Circuit found anecdotal evidence from a telephone survey, personal
interviews and focus groups to be relevant and probative of whether North Carolina met its
burden. A telephone survey conducted by the consultant resulted in strong evidence of
discriminatory treatment of both African American and Native American firms including:
discriminatory “good old boy networks;” double standards applied to both qualifications and
performance; changes in bids when not required to use minority firms; and dropping minority
subcontractors after winning contracts. Focus group and interview results confirmed these
findings. As the court summarized:
The surveys in the 2004 study exposed an informal, racially exclusive network that
systemically disadvantaged minority subcontractors. The State could conclude with good
reason that such networks exert a chronic and pernicious influence on the marketplace
that calls for remedial action.… [P]rime contractors have higher standards for minority
subcontractors, view minority subcontractors as being less competent than nonminority
businesses, change their bidding practices when not required to hire minority
subcontractors, and drop minority subcontractors after winning contracts. Together, these
responses suggest strongly that the underutilization of African American and Native
American subcontractors is more than a mere byproduct of misguided yet color-blind
cronyism. 127
The Rowe court specifically rejected the notion that anecdotal testimony must be “verified” or
corroborated, as befits the role of evidence in legislative decision-making as opposed to judicial
proceedings. “Plaintiff offers no rationale as to why a fact finder could not rely on the State’s
‘unverified’ anecdotal data. Indeed, a fact finder could very well conclude that anecdotal
122 Webster, 51 F.Supp.2d at 1363, 1379.
123 International Brotherhood of Teamsters v. United States, 431 U.S. 324, 399 (1977).
124 Adarand VII, 228 F.3d at 1168-1172.
125 Concrete Works II, 36 F.3d at 1520, 1530.
126 Engineering Contractors II, 122 F.3d at 926.
127 Rowe, 615 F.3d at 251.
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