Revised City of South Bend Disparity Study Report

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City of South Bend Disparity Study 2020 2. Examine Disparities between South Bend's Utilization of M/ WBEs and M/WBE Availability Next, the study must estimate the availability of minorities and women to par- ticipate in the City's contracts as prime contractors and associated subcontrac- tors compared to the City's utilization of such firms. The primary inquiry is whether there are statistically significant disparities between the availability of M/WBEs and their utilization. Where there is a significant statistical disparity between the number of qualified minority contractors willing and able to perform a particular service and the number of such contractors actually engaged by the locality or the locality's prime contractors, an inference of discriminatory exclusion could arise... In the extreme case, some form of narrowly tailored racial preference might be necessary to break down patterns of deliberate exclusion. 36 This is known as the "disparity ratio' or "disparity index". A disparity ratio mea- sures the participation of a group in the government's contracting opportuni- ties by dividing that group's utilization by the availability of that group and multiplying that result by 100. Courts have looked to disparity indices in deter- mining whether strict scrutiny is satisfied .37 An index less than 100 percent indicates that a given group is being utilized less than would be expected based on its availability, and courts have adopted the Equal Employment Opportunity Commission's "80 percent" rule that a ratio less than 80 percent presents a prima facie case of discrimination. 38 Where possible, statistical techniques are applied to examine whether any disparities are significant. In addition to creating the disparity ratio, correct measures of availability are nec- essary to determine whether discriminatory barriers depress the formation of firms by minorities and women, and the success of such firms in doing business in both the private and public sectors, known as an "economy -wide" analy- sis. 9 36. Croson, 488 U.S. at 509; see Webster, 51 F.Supp.2d at 1363, 1375. 37. Scott, 1991 at 218; see also Concrete Works Il, 36 F.3d at 1526-1527; O'Donnell Construction Co., Inc, v. District of Columbia, 963 F.2d 420, 426 (D.C. Cir. 1992); Cone Corporation v Hillsborough County, 908 F.2d 908, 916 (11th Cir. 1990), cert. denied, 498 U.S. 983 (1990). 38. 29 C.F.R. § 1607.4(D) ("A selection rate for any race, sex, or ethnic group which is less than four-fifths (4/5) (or eighty percent) of the rate for the group with the highest rate will generally be regarded by the Federal enforcement agencies as evidence of adverse impact, while a greater than four-fifths rate will generally not be regarded by Federal enforce- ment agencies as evidence of adverse impact."); see Engineering Contractors ll, 122 F3d at 914. 39. Northern Contracting, Inc. v Illinois Department of Transportation, 2005 U.S. Dist, LEXIS 19868, at *70 (Sept. 8, 2005) ("Northern Contracting Ir') (IDOT's custom census approach was supportable because "discrimination in the credit and bonding markets may artificially reduce the number of M/WBEs'). 28 D 2020 Colette Holt & Associates, All Rights Reserved.