|
|||||||
|
|
|
|
|
|
|
|
 |
|
Should the Government Forthrightly Abandon the Use of Race and Ethnicity Data for Regulatory Compliance Purposes in Light of Recent Federal Court Decisions?
The Problem of Racial and Ethnic Profiling All government contractors subject to audits by the federal government for compliance with federal equal opportunity laws are required by agencies to report data to the government. In order to determine whether a given company is to be targeted for an audit (with the risk of fines and other penalties), the government examines data about the racial and ethnic composition of the employer’s workforce. If the employer’s workforce ethnicity "profile" does not match up with the agency’s selected demographic profile, the employer automatically becomes a target. Even if the employer’s hiring and promotion practice is nondiscriminatory, and even if no grievances have been filed, the employer can nevertheless become a target simply because the company failed to re-create, within the company, the ethnic mix of the surrounding geographic region deemed appropriate by the federal government. Ironically, in requiring companies to re-create a preconceived racial and ethnic profile in order to avoid government targeting, the government agencies such as the EEOC are coercing companies into making hiring decisions based on race and ethnicity – the very type of legal violation EEOC is supposed to prevent. Recently, the United States Supreme Court and the federal Court of Appeals for the D.C. Circuit have issued decisions making it clear that the government’s "guilty until proven innocent" policy is unconstitutional. These decisions hold that: –The "compelling government interest" test is an extremely high threshold. The government’s interest in "promoting diversity" is not sufficient to meet this standard. •In the employment context, an employer must treat all job applicants and employees alike. This means that the employer cannot make hiring or promotion decisions based on race or ethnicity. The applicant or employee must be judged based on individual merits. To do otherwise is to violate the Equal Protection Clause of the Fifth and Fourteenth Amendments of the U.S. Constitution. •If an employer or contractor discriminates (either for or against an individual or group) on the basis of race or ethnicity, the employer/ contractor commits a violation of the Equal Protection Clause. –As the courts put it, the employer/contractor is prohibited from engaging in "race-based decisionmaking." In other words, race (or religion or ethnicity) is not a permitted factor in any "decision" the employer/contractor makes with respect to hiring. –The employer/contractor is prohibited from considering race or ethnicity either for or against an applicant or employee. To make a hiring decision based in part on race or ethnicity is to violate the applicant’s or employee’s Equal Protection rights. If an employer or contractor uses race or ethnicity in favor of one applicant or employee, the employer/contractor is at the same time necessarily discriminating against other applicants or employees who are not a member of a favored race or ethnic group. To be lawful, the employer’s or contractor’s decisions must be entirely race- or ethnicity-neutral. •In the context of regulatory enforcement by the EEOC and other agencies, the government cannot lawfully presume that a company is committing discrimination solely because the ethnic make-up of the employer’s workforce does not match up exactly with the ethnic make-up of the employer’s demographic area.
The Key Federal Court Decisions
–A subcontract for the highway project was awarded to a minority subcontractor, despite the fact that a non-minority subcontractor submitted the lowest bid. The rejected bidder filed the lawsuit. –The U.S. Supreme Court held that decision-making made based upon any racial classification imposed by any government (i.e., federal, state or local) must be justified under the "strict scrutiny" test. This means that the classification is constitutional only if it is a "narrowly tailored measure that furthers a compelling governmental interest." Lutheran Church-Missouri Synod, 141 F.3d 344 (D.C. Cir. 1998). –Where a regulation requires – or even "encourages" – employment of a racial or ethnic group in direct proportion to that group’s numbers in the surrounding community, the Equal Protection Clause is violated. This is because the employer is effectively required to take race/ethnicity into account in order to arrive at the corresponding ethnic mix. 141 F.3d at 352; see also 154 F.3d at 492. –Moreover, to the extent that the government’s decision to initiate investigations or other enforcement actions is based on the employer’s failure to arrive at the correct ethnic mix, the government is effectively intimidating or coercing the employer to arrive at some "numerical target." Id. at 354. This kind of "race-conscious decision-making" (id. at 351) is the very type of constitutional violation that the EEOC is supposed to prevent. Additional Recent Decisions. –Safeco Ins. Co. v. City of White House, ___ F.3d ____ (6th Cir. 1999), held that EPA could conduct "outreach" to encourage minority participation in subcontracting, but could not compel contractors to arrive at a specified hiring outcome. –Tuttle v. Arlington County School Bd., ___ F.3d ___ (4th Cir. 1999), held that a local government’s use of racial and ethnic "weighting" to determine who could attend an oversubscribed public school was not sufficiently narrowly tailored to pass the constitutional test.
The Present Status of Federal Agency Enforcement Activities
Federal agencies, purportedly acting pursuant to requirements imposed by the EEOC/OFCCP, are engaged in massive data collection activities pursuant to the same kind of regulations that were held unlawful in the Adarand Constructors and Lutheran Chuch-Missouri Synod decisions.
•EEOC uses data extracted from the form to target employers for investigation and possible penalty actions, which flies in the face of the U.S. Supreme Court and D.C. Circuit rulings. Specifically, EEOC uses the data to compare the racial and ethnic "profile" of individual employers with the racial/ethnic composition of some geographic area the agency deems relevant. If the employer’s "profile" does not within limits match the local demographic profile, the employer automatically becomes a possible target for investigation. In other words, based on the profile alone, the employer becomes "presumed guilty until proven innocent." This is regardless of whether or not any charges have been filed by any employees.
•The Office of Federal Contract Compliance Programs ("OFCCP") within the Department of Labor ("DOL") also uses EEO-1data to determine which federal contractors are to become the targets of investigations. Once again, this approach is no longer lawful in light of the federal courts’ constitutional analysis in Adarand Contructors and Lutheran Church-Missouri Synod.
•EEOC transmits EEO-1 data to state investigative and enforcement authorities. As state authorities are subject to the same constitutional limitations as federal authorities, the use of this data by the states also results in the same constitutional violations.
•Although the Equal Employment Opportunity Act of 1972 (42 U.S.C. § 2000e-8(c)) authorizes EEOC to require employers to file some form of report, the reporting mechanism must be "reasonable, necessary, or appropriate for the enforcement" of the Act, as interpreted by the courts.
–If EEOC is using the data collected from reports for purposes that violate the Equal Protection Clause of the U.S. Constitution, then EEOC’s reporting activities are clearly not "reasonable" or "appropriate."
–Moreover, to the extent that other mechanisms are available for monitoring compliance (such as requiring employers to report on actual employee complaints), EEOC’s present reporting system is not "necessary."
CRE has identified two mechanisms for challenging EEOC’s and other agencies’ unlawful collection and use of racial and ethnic data: Paperwork Reduction Act: –OMB is not authorized to approve an information collection unless the agency first establishes that the data to be collected from the public will be used for lawful purposes. –On November 22, 1999 OMB granted a three year re-approval of EEOC’s use of the Form EEO-1 to collect race and ethnicity data from employers. OMB did not respond to the public comments filed by CRE pointing out the constitutional violations resulting from use of the Form. [Click to see CRE’s comment filing]. Judicial Challenges to Enforcement Activities Based on Unlawfully Collected Data: –CRE requests comments as to whether this would be an effective mechanism for challenge. Other Challenge Mechanisms:
The CRE invites readers to submit comments to the Interactive Public Docket on the following issues that are raised by this paper: CRE is seeking further examples of specific industries and federal agency practices that reflect demographic profiling or race- or ethnicity-based decisionmaking. Some initial examples include: –Use of racial, ethnic or demographic data by the FCC as the basis for licensing decisions. –Use of racial, ethnic or demographic data by agencies as basis for participation in special programs or awards. How must federal agencies revise their present activities to be in compliance with the Equal Protection Clause? Areas of concern include: –Contract and subcontract awards. –Compliance monitoring. –Investigations. –Other government activities not mentioned above. Given that the primary uses of the EEO-1 Form are now unlawful in light of the Adarand Constructors, Inc. and Lutheran Church-Missouri Synod decisions, is there any valid reason for EEOC to continue to use this Form? Challenge mechanisms. As discussed above, CRE is interested in comments regarding legal strategies for challenging EEOC’s/OFCCP’s unlawful activities. Click Here to Submit Comments to the Interactive Public Docket |
