Racial and Gender Diversity in State DOTs and Transit Agencies (2007)

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3According to the Occupational Outlook Quarterly, “Between 2002 and 2012, the number of minorities in the U.S. labor force is projected to increase faster than the number of whites” (1). The number of women in the workforce is also projected to increase, with women expected to account for 47.5% of the workforce by 2012 (2). Both the public and private transporta- tion sectors will be influenced by these changing demographics. The transportation industry makes up a significant portion of the total civilian workforce, accounting for one in 10 em- ployees. According to The Workforce Challenge: Recruiting, Training, and Retaining Qualified Workers for Transportation and Transit Agencies, “Total transportation employment in the United States is more than 14.7 million, about 11 percent of the civilian workforce” (3). State departments of transportation (SDOTs) and transit agencies are competing not only with each other, but also with the private sector, to recruit and retain qualified employees from among nearly 15 million avail- able workers. Federal and state governments espouse equal employment opportunities, and SDOTs and transit agencies should strive to recruit and retain not only a qualified work- force, but also a diverse workforce. This project is designed to assist SDOTs and transit agencies in achieving that goal. Problem Statement and Research Objective The project was designed to identify, analyze, and assess the quality of employment data for SDOTs and transit agen- cies. It had the following four objectives: 1. Identify sources of existing data on the race and gender of employees of SDOTs and transit agencies (including con- tract employees of public transit agencies). 2. Assess the quality of the data in terms of comprehensive- ness, validity, and reliability. 3. Identify gaps in the existing data and determine what additional data need to be collected to establish a credible benchmark. 4. Establish a baseline reflecting the current status of racial and gender diversity in SDOTs and transit agencies. Organization This report is divided into four chapters, followed by several appendixes. The first chapter presents an overview of the project, including the project’s background, the report’s organization, the methodology employed, and the legislative history of affirmative action. The second chapter outlines the conceptual framework that the research team developed as a result of its analyses. It discusses how four key concepts—compliance, consistency, comprehensiveness, and confidence—are essential to a suc- cessful diversity or affirmative action program. The third chapter presents the results of the team’s analy- sis of utilization and disproportionality rates for SDOTs and transit agencies. In the fourth chapter, the team outlines it recommendations for achieving a diverse workforce. Several important resources are included in the Appendixes: • Appendix A—Affirmative Action Timeline • Appendix B—Literature Review • Appendix C—Bibliography • Appendix D—Survey Findings • Appendix E—Best Practices • Appendix F—Acronyms and Abbreviations Legislative History and Intent Achieving a diverse workforce is part of a federal mandate that dates back to the 1960s. During the civil rights move- ment of the 1960s, the federal government made equal employment opportunity (EEO) the law of the land (4). The executive branch issued executive orders, Congress passed legislation, and agencies promulgated regulations that prohibited discrimination and required federal contractors C H A P T E R 1 Background

to develop affirmative action plans. These executive orders, laws, and regulations were designed to expand employment opportunities for women and minorities, both of whom had previously been subject to institutional discrimination. EEO Programs in the United States President John F. Kennedy’s Executive Order 10925 of 1961 prohibited federal government contractors from discriminat- ing on the basis of race, instructing employers “to ensure that applicants are employed, and that employees are treated dur- ing employment, without regard to their race, creed, color, or national origin.” This executive order (subsequently super- seded by Executive Order 11246 of 1965) was the first of sev- eral key events in the history of civil rights that have shaped the affirmative action discourse and given employers guidance on how to develop EEO programs. Those events include the pas- sage of Title VI of the Civil Rights Act of 1964, which prohibits discrimination under any program that receives federal finan- cial assistance (5) and Title VII of the Civil Rights Act, which prohibits employment discrimination based on race, sex, color, religion, or national origin (6). Title VII was enacted in an effort to expand employment opportunities for groups underrepresented in the workforce, specifically women and minorities. It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or other- wise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or to limit, segregate, or classify his employees or appli- cants for employment in a way which would deprive or tend to deprive any individual of employment opportunities or other- wise adversely affect his status as an employee, because of such individual’s race, color, religion, sex or national origin. (6) During the congressional debate leading to passage of the Civil Rights Act, the Senate discussed “the plight of the Negro in our economy” and the need for the government to intervene (7). Prior to the enactment of Title VII, Blacks were relegated to unskilled and semi-skilled jobs, and the numbers of those jobs were declining due to automation. As a result, employment opportunities for Blacks had worsened. “In 1947 the nonwhite unemployment rate was only 64 per- cent higher than the white rate; in 1962 it was 124 percent higher” (8). Following the passage of Title VII, employers sought guid- ance on how to develop EEO programs in compliance with the law. In response, in 1976 the Department of Labor, Equal Employment Opportunity Commission (EEOC), Civil Ser- vice Commission, Attorney General’s Office, and Commis- sion on Civil Rights (which together constituted the Equal Employment Opportunity Coordinating Council) formulated a policy statement on affirmative action. This statement was designed to provide guidance to government agencies on the role of affirmative action in EEO programs. Equal employment opportunity is the law of the land. In the public sector of our society this means that all persons, regardless of race, color, religion, sex, or national origin shall have equal access to positions in the public service limited only by their ability to do the job. There is ample evidence in all sectors of our society that such equal access frequently has been denied to members of certain groups because of their sex, racial, or ethnic characteristics. (4) In this policy statement, the Equal Employment Opportunity Coordinating Council “urges all State and local governments to develop and implement results oriented affirmative action plans.” Affirmative action can take the form of race-neutral or race- conscious measures, but if race-conscious measures are used, agencies may subject themselves to a charge of reverse discrim- ination. According to the EEOC, in enacting Title VII, “Con- gress did not intend to expose those who comply with the Act to charges that they are violating the very statute they are seek- ing to implement. Such a result would immobilize or reduce the efforts of many who would otherwise take action to improve the opportunities of minorities and women without litigation, thus frustrating the Congressional intent to encourage voluntary action and increasing the prospect of Title VII litigation” (9). Over the past 10 years, there have been several legal chal- lenges to affirmative action policies, not only in employment, but also in education and in government contracting. These legal challenges have affected the political atmosphere and fu- eled the debate on whether affirmative action policies are appropriate under Title VII. To understand the current state of affirmative action in terms of what types of measures are appropriate under Title VII, it is helpful to review the legal history of affirmative action. A thorough history is discussed in the report, Affirma- tive Action Revisited: A Legal History and Prospectus (10), as well as outlined on several websites (including www.eeoc.gov and www.detroitnaacp.org). A timeline highlighting key events in the history of affirmative action is provided in Appendix A. In short, the history reveals that employers are to make “good faith efforts” to achieve a diverse workforce, and their race-conscious goals are supposed to be “narrowly tailored,” justified by a “compelling interest,” and should not “unnecessarily trammel” the rights of nonminorities. EEO Regulations in the Department of Transportation SDOTs and transit agencies must adhere not only to federal executive orders, state and federal legislation, and case law, but 4

also to regulations that have been promulgated by the U.S. Department of Transportation (USDOT). Within USDOT, SDOTs fall under the purview of the Federal Highway Admin- istration (FHWA), and transit agencies fall under the purview of the Federal Transit Administration (FTA). Both of these agencies have developed guidelines on the implementation of EEO programs at state and local transportation agencies. Although SDOTs and transit agencies report to two differ- ent federal authorities, all transportation agencies are gov- erned by two regulations: Nondiscrimination in Federally Assisted Programs of the Department of Transportation (11), which addresses employment within transportation agencies, and Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Pro- grams (12), which deals with government contracts with external organizations. The purpose of the Nondiscrimination in Federally Assisted Programs of the Department of Transportation “is to effectu- ate the provisions of title VI of the Civil Rights Act of 1964 . . . to the end that no person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity receiving Federal financial assistance from the Department of Transportation.” The regulation goes on to state: Where a primary objective of a program of Federal financial assistance . . . is to provide employment, a recipient or other party . . . shall not . . . subject a person to discrimination on the ground of race, color, or national origin in its employment prac- tices under such program (including recruitment advertising, hiring, firing, upgrading, promotion, demotion, transfer, layoff, termination, rates of pay or other forms of compensation or ben- efits, selection for training or apprenticeship, use of facilities, and treatment of employees). Such recipient shall take affirmative action to insure that applicants are employed, and employees are treated during employment, without regard to their race, color, or national origin. Although the regulations clearly authorize transportation agencies to take affirmative steps in the area of employment, transportation agencies that have taken such steps have been challenged. In 1973, the U.S. Supreme Court upheld a county transit agency’s voluntary affirmative action plan in Johnson v. Trans- portation Agency, in which the Transportation Agency of Santa Clara County, California, was using gender as a factor in de- termining promotions within traditionally segregated job classifications. “Women were significantly underrepresented in the county’s labor force as a whole and in five of seven job categories, including skilled crafts where all 238 employees were men. The plan’s long range goal was proportional repre- sentation” (480 U.S. 616, 1987). The court approved the county’s plan because it satisfied the “manifest imbalance” re- quirement established in United Steelworkers v. Weber (443 U.S. 193, 1979). In Weber, the court upheld a voluntary affir- mative action plan that set aside slots for minorities in an ef- fort “to increase the percentage of blacks in skilled craft posi- tions from 2% to the level of their overall participation in the area workforce, or 39%” (10). The Supreme Court ruled in favor of the union, arguing that ‘“racial preferences” in the program were a lawful means to combat ‘manifest racial im- balance’ in craft positions resulting from “old patterns of racial segregation and hierarchy”’(13). Transportation agencies are authorized to use affirmative action not only in employment practices, but also in govern- ment contracting and procurement practices. Agencies receiving federal transportation funds are required to have a disadvantaged business enterprise (DBE) program. According to USDOT, the DBE program is intended “to remedy past and current discrimination against disadvantaged business enter- prises, ensure a ‘level playing field’ in which DBEs can com- pete fairly for DOT-assisted contracts, improve the flexibility and efficiency of the DBE program, and reduce burdens on small businesses” (www.dotcr.ost.dot.gov/asp/dbe.asp). After several amendments to the original 1983 regulation and following the Supreme Court’s ruling in Adarand (513 U.S. 1012, 1994), USDOT issued a final rule in 1999, which was designed to give agencies clear instructions on how to develop narrowly tailored DBE goal programs, in compliance with the legal standard articulated in Adarand. The rule was later revised in 2003 to provide grantees with additional guid- ance on how to develop legally defensible hiring goals. DBE programs have been challenged by those who argue that the programs are unconstitutional. The most recent chal- lenge came in Western States Paving Co. v. United States & Washington State Department of Transportation (407 F. 3d 983, 9th Cir., 2005). In 2006, FTA issued a notice of policy implementation in the Federal Register to help grantees understand the impact this decision might have on their DBE programs. Although the Court ruled that Washington DOT had unconstitutionally applied the DBE regulation, the notice also stressed that the Court “affirmed that Congress had determined that there was a compelling need for the DBE pro- gram and the Part 26 was narrowly tailored” (14). Although this decision addresses affirmative action pro- grams in government contracting, the underlying issues can be applied to affirmative action in employment. For example, “the court said that race conscious elements of a national program, to be narrowly tailored as applied, must be limited to those parts of the country where its race-based measures are demonstrably needed.” Similarly, for an affir- mative action or diversity program in employment to be narrowly tailored, it must be limited to the part of the coun- try where there is a need, and there must be evidence of dis- crimination; the remedy must be limited to the particular 5

group that experienced the discrimination. Evidence of dis- crimination should be based on a statistical analysis, not just anecdotal reports. Affirmative action, if properly designed and applied, is thus still allowed under both Title VII of the Civil Rights Act and USDOT’s regulations regarding nondiscrimination in federally assisted programs. The Policy Statement on Affirmative Action says that affirmative action plans may include numerical goals and timetables (not quotas) and career advancement training programs (4). The goals and timetables should be based on a statistical analysis of the employer’s workforce and of the workers in the relevant job market. EEO Reporting Requirements EEOC, the agency charged with primary enforcement authority, has developed reporting requirements for public and private employers. Private-sector employers with more than 100 employees, as well as those employers that have fed- eral government contracts worth $50,000 or more and that have 50 or more employees, must complete the Employer Information Report (EEO-1). This report must be submitted annually to EEOC; if the employer receives federal funds, a copy must also be submitted to the Office of Federal Contract Compliance Programs (OFCCP). EEOC uses this informa- tion to support civil rights enforcement and to analyze employment patterns, such as the representation of female and minority workers in companies, industries, or regions (www.eeoc.gov/stats/jobpat/e1instruct.html). Since 1973, state and local governments with 100 or more employees have been required to submit a State and Local Government Report (EEO-4); the report provides informa- tion on the number of women and minorities in eight job categories. The EEO-4 reports submitted to FHWA by SDOTs and to FTA by transit agencies were analyzed for this project, with the intent of developing a diversity baseline. Because SDOTs and transit agencies have different missions, goals, organiza- tional structures, and reporting requirements, the analyses are presented separately in this report. 6