The 7.63 Percent Solution

A small contractor learns affirmative action arithmetic

Tama Starr from the February 1996 issue

Sensitive, compassionate people--like you and me--appreciate the benevolent impulses underlying affirmative action. Less well known is the cost, in terms of money, time, and sheer brain damage, that putting this doc- trine into practice entails. As the employer of 87 skilled workers in three construction trades, plus support staff--who have always come in all colors, races, and genders without any help from me--I've experienced firsthand the excruciating reality of complying with affirmative action's bureaucratic edicts.

I submit for your disbelief an actual contract that my company undertook last summer. It is a typical contract that anyone in the construction trades would recognize. Accompany me on a journey through it. Your benevolence will never be the same again.

The job itself is straightforward: the fabrication and installation of a set of 15-foot-tall metal letters on the roof of a factory building. Doing the work is child's play compared with following the contract. The distinguishing features of the project are: a) the "progressive" character of the customer, a large publisher, and b) my city government's corporate welfare policy, which, by supporting the project with tax abatements and other subsidies, subjects it to the same equal-employment-opportunity requirements as a public project. Thus, four levels of affirmative action: corporate, city, state, and federal.

The main part of the contract, printed in normal-size type, is only two and a half pages long. It says, in essence, "You do the work, and we will pay you." Then there is a "Scope of Work," describing the work, and a set of drawings depicting the work. There is a set of "Special Conditions" containing provisions for force majeure, change orders, and warranties, and a discussion of the sales-tax exemption. There is a standard insurance certificate.

And then there is a 101-page "exhibit" consisting of 20 separate documents embodying the affirmative action requirements. Let's have a look at some highlights.

The first document is the oxymoronic "Affirmative Action/Non-Discrimination/MBE-WBE Requirement." It lists "participation goals" by trade. For example, carpenters on this job are expected to be 42.74 percent minority and 1.58 percent female. Iron workers, both ornamental and structural, are to be 58.53 percent minority and 7.63 percent female. There is no clue as to how those numbers were derived, but you can immediately see the value of a minority female iron worker. Don't think, however, if you are fortunate enough to have access to one, that you can circumvent the requirements by transferring her around, or by renting her to or from a competitor. The document sternly warns: "Compliance by [sic] the Contractor's specific affirmative action obligations required herein of minority and female employment and training must be substantially uniform throughout the length of this Trade Contract and in each trade. The transfer of minority or female employees or trainees from contractor to contractor or from project to project for the sole purpose of meeting the Subcontractor's goals shall be a violation of this Trade Contract."

We are a union shop, which means that we hire only from within the unions' respective labor pools. For their part, the unions maintain quality control, putting all the workers through apprenticeship and education programs. But they never promised (who would have thought to ask?) to provide painters who are 62.57 percent minority and 3.52 percent female, as required here. And, warns the document, "neither the provisions of any collective bargaining agreement, nor the failure by a union" to refer the correctly composed work force "shall excuse the Contractor's obligations hereunder."

So we are commanded to direct our recruitment efforts "to schools with minority and female students, to minority, female and community organizations, and to minority and female recruitment and training organizations," and to keep careful records of the disposition of minority and female job applicants who come in off the street. But we can't hire off the street. No matter. We are not only required to "meet with union officials to inform them of the policy" and to "bargain with respect to the inclusion of [the policy] in all union agreements," but also to report any noncooperation by any union to the proper authorities, failure to report being itself a misdemeanor. This will certainly do wonders for our relationship with the unions (who, in fairness, are feeling the heavy hand of these requirements at least as keenly as we are).

Next, the document lists 16 "specific affirmative actions" to be taken, the first of which is to "assign two or more women to each Phase of the construction project." Now here's a problem. One of the phases is structural installation, which entails landing big steel and welding it while perched on a scaffold 100 feet or more above the ground, sometimes in zero-degree weather. For some reason, I don't get a lot of female applicants for this position. So if you know of any women--preferably minority and, even better, disabled--who would enjoy this work, please send them on over!

I suppose I could halfway comply with this provision by assigning myself. But the female-assignment provision is accompanied by the statement that I will "ensure and maintain a working environment free of harassment, intimidation, and coercion." And with all these requirements, I don't feel free of harassment, intimidation, and coercion at all. But maybe I'm not supposed to. I'm the boss, so I'm not in a protected class.

The rest of the 16 points (two pages of very small print) describe, in exquisite detail, the special recruitment, monitoring, notification, review, and record-keeping procedures to be undertaken with respect to hiring and cultivating minority and female employees. Most noteworthy here is the invasion of their privacy. I am required to "encourage present minority and female employees to recruit other minority persons and women." What form is this "encouragement" supposed to take? "Hello, Ms. Wong, I see you are Asian. Got any sisters at home?"

My favorite paragraph in this document is what I call the "desperate" clause: "Goals for minorities and a separate single goal for women have been established. The Contractor, however, is required...to take affirmative action for all minority groups, both male and female, and all women, both minority and non-minority. Consequently the Contractor may be in violation hereof if a particular group is employed in a substantially desperate [sic] manner (for example, even though the Contractor has achieved its goals for women generally, the Contractor may be in violation hereof if a specific minority group of women is underutilized)." So even after I've desperately hired Ms. Wong's sister as a high-mast welder, I may still be in trouble if there aren't enough female Aleuts or Samoans on the team.

Part II of this document provides for "meaningful participation" by Minority Business Enterprises and Women-Owned Business Enterprises (MBE/WBE). What is "meaningful participation"? It is defined in bold type and underlined: " `Meaningful participation' shall mean that at least seventeen percent (17%) of the total dollar value of the construction contracts (including subcontracts) covering the Work are for the participation of Minority Business Enterprises and Women-Owned Business Enterprises, of which at least twelve percent (12%) are for the participation of Minority Business Enterprises and at least 5% [sic] are for the participation of Women-Owned Business Enterprises."

This section suggests interesting ideas for restructuring one's business, including forming joint ventures or partnerships with MBEs and WBEs, and "not requiring bonds from and/or providing bonds and insurance for MBEs and WBEs," even (or especially) where one is required to provide bonds and/or insurance oneself. Again, there are impeccably detailed record-keeping requirements, including, most notably, "the reason for such decision" when any of the required discussions with MBEs and WBEs fails to result in a joint venture, partnership, or subcontract.

Part III summarizes and incorporates by reference the Mayor's Executive Order #50, which emphasizes, among other things, that the contractor "will not discriminate...on the basis of...race, color, creed, national origin, sex, age, handicap, marital status, sexual orientation or affectional preference." (What, may one ask, is the distinction between "sexual orientation" and "affectional preference"? And does it matter, at least until the lawsuits come?) That is all very nice, but on the previous page, the contractor was required to discriminate, that is, to intervene positively, on the basis of race, sex, etc. Oh well.