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

Legal Standards for Government Affirmative Action Contracting Programs
evidence need not—indeed cannot—be verified because it ‘is nothing more than a witness’
narrative of an incident told from the witness’ perspective and including the witness’
perception.’ 128 Likewise, the Tenth Circuit held that “Denver was not required to present
corroborating evidence and [plaintiff] was free to present its own witnesses to either refute the
incidents described by Denver’s witnesses or to relate their own perceptions on discrimination in
the Denver construction industry.” 129
F. Narrowly Tailoring a Race-Conscious Local Program
Even if the City has a strong basis in evidence to believe that race-based measures are needed to
remedy identified discrimination in its local contract market, the program must be narrowly
tailored to that evidence. The courts have repeatedly examined the following factors in
determining whether race-based remedies are narrowly tailored to achieve their purpose:
• The efficacy of race-neutral remedies at overcoming identified discrimination;
• The relationship of numerical benchmarks for government spending to the availability of
minority- and women-owned firms and to subcontracting goal setting procedures;
• The flexibility of the program requirements, including the provision for good faith efforts
to meet goals and contract specific goal setting procedures;
• The congruence between the remedies adopted and the beneficiaries of those remedies;
• Any adverse impact of the relief on third parties; and
• The duration of the program. 130
The Fourth Circuit Court of Appeals has described the narrow tailoring requirements as follows:
The preferences may remain in effect only so long as necessary to remedy the
discrimination at which they are aimed; they may not take on a life of their own. The
numerical goals must be waivable if qualified minority applications are scarce, and such
goals must bear a reasonable relation to minority percentages in the relevant qualified
labor pool, not in the population as a whole. Finally, the preferences may not supplant
race-neutral alternatives for remedying the same discrimination. 131
128 Id. at 249.
129 Concrete Works IV, 321 F.3d at 989.
130 United States v. Paradise, 480 U.S. 149, 171 (1987); Drabik II, 214 F.3d at 737-738.
131 Maryland Troopers Association, Inc. v. Evans, 993 F.2d 1072, 1076-77 (4 th Cir. 1993) (citations omitted).
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