The Catalyst
October 2001 Vol. 7, No. 1
Statements or expressions of opinion or comments appearing herein are those of the editors or contributors, and not necessarily those of the association or section.
(Notice to librarians: The following issues were published in Volume 6 of this newsletter during the fiscal year ending June 30, 2001: September, No. 1; December, No. 2; March, No. 3; June, No. 4.)
Contents
* Seventh Circuit deals a blow to affirmative action set-asides for women and minorities in Illinois
* ABA Commission on Women honors Laurel G. Bellows
* Girls and science--meet InnerLink
Two recent decisions from the Seventh Circuit highlight our news report this month. In the first report, Sharon Eiseman describes a Seventh Circuit decision that struck down Cook County's set-aside program for women and minority-owned business enterprises. The second opinion involves a gender discrimination claim brought by a woman who was transferred to the night shift. In other breaking news, Celia Gamrath describes the recent honors bestowed on Chicago's own Laurel G. Bellows by the ABA Commission on Women.
In the features department, we are pleased to kick off a new Profiles in Success series. This series will present mini-biographies of some of the most successful women lawyers in the state. ISBA Secretary Irene Bahr is featured in our first article, written by Terrie Rymer.
Readers with a math or science phobia will appreciate Susan Lynam's article on InnerLink, which is an organization fighting the misperception that girls do not need to learn math and science. In our community outreach series, Lynn Grayson introduces us to WINGS (Women in Need Growing Stronger), a transitional housing program for homeless suburban women and their children, and Julia Langfelder describes the free mediation services provided by the Center for Conflict Resolution.
Happy reading.
Newsletter Editors
Alice Noble-Allgire
Diana Jagiella
Seventh Circuit deals a blow to affirmative action set-asides for women and minorities in Illinois
By Sharon L. Eiseman and Stephen P. Ellenbecker, Hodges Loizzi Eisenhammer Rodick & Kohn, Arlington Heights
The Seventh Circuit Court of Appeals recently dealt a set-back for set-aside programs implemented by Cook County, Illinois. Builders' Assn. of Greater Chicago v. County of Cook, F. Supp. 2d 1087 (N.D. Ill. 2000), aff'd, 256 F.3d 642 (7th Cir. 2001), involved a Cook County ordinance that required a minimum of 30 percent of the dollar value of public works contracts awarded by the county to go to minority-owned business enterprises (MBE) and at least 10 percent of the value of such contracts to be awarded to women-owned business enterprises (WBE.) Commonly known as M/WBEs, these favored groups are defined as enterprises at least 51 percent owned by minority or female members.
Earlier federal court rulings have held that a race, ethnicity or gender-preferred policy does not infringe upon the equal protection of the laws if it is a remedy for intentional discrimination committed by the public entity that is according the preferential treatment and discriminates no more than is necessary to accomplish the remedial purpose. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 491-92 (1989); Builders' Assn., 256 F.3d 642, at 643-44. Public entities justify remedial provisions on the theory that they themselves are vicariously responsible for the prior discriminatory practices of the private contractors. See Croson, 488 U.S. at 492.
Minority-favored programs
In order to promulgate and enforce rules that favor women and minorities, the public entity must present evidence that reveals a systematic exclusion of qualified M/WBEs. Croson, 488 U.S. at 509. To justify a race-based preference program, Croson demands that a public entity show:
* that qualified members of a M/WBEs are being denied the opportunity to participate in contractual opportunities offered by the public entity because of their race;
* that the situation presents the "extreme case" of discrimination so systematic that redress of particular discriminatory acts would be insufficient to prevent harm to other members of the harmed class;
* that a pattern of racial discrimination exists and that there is "strong evidence" to support the pattern; and
* that the set-aside program is narrowly tailored to remedy the specific discriminatory practice.
Builders' Assn., 123 F. Supp. at 1092. Additionally, a race-favored remedy is acceptable only if the public entity itself intentionally discriminated against the favored group(s) or the public entity is charged with eliminating private discrimination, Builders' Assn., 256 F.3d at 644, or was a "passive participant" in the discrimination, Croson, 488 U.S. at 492. It is essential that the public entity identify the alleged discriminatory practice(s) with specificity. Id. at 504. Race discrimination, even if it is discrimination against white, male business owners, triggers a strict scrutiny review of the remedial program. Id. at 505. Strict scrutiny requires that the public entity provide a compelling public interest for the program and a narrowly tailored means of achieving the objective. Id.
Gender-favored programs
Programs that favor WBEs (i.e., gender-favored programs) trigger a less strict standard known as "intermediate scrutiny." U.S. v. Virginia, 518 U.S. 515, 533 (1996.) Under "intermediate scrutiny," a public entity must present an important government interest coupled with a substantially related means of achieving the objective. Id. To state it differently, the public entity must find and show an "exceedingly persuasive justification for the action." Id. Although the differences between the two levels of scrutiny may seem great, the chasm has been characterized by the court as "vanishingly small." See Builders' Assn., 256 F.3d 642, at 644.
The law within the Seventh Circuit
In the Builders' Association case, the county presented statistical evidence that highlighted the disparity between M/WBE subcontracting jobs in county construction projects (governed by M/WBE requirements) and M/WBE subcontracting jobs in the private sector. Although the numbers alone may have exhibited prima facie evidence of discriminatory practices implemented by private contractors, both the district court and the Seventh Circuit Court of Appeals found the county's reliance on the statistical effects of the ordinance to be flawed. Seventh Circuit Judge Richard Posner rejected the county's theory by pointing out that an increase in M/WBE involvement in public jobs through the set-asides pushes non-M/WBEs to move to the private sector; thus, the numbers will be forever distorted. Builders' Assn., 256 F.3d 642, at 647. Furthermore, the court noted that the remedy for correcting past discrimination against blacks sweeps too broadly when it favors Asian-Americans and women over non-minorities.
The M/WBEs argued that the contractors did not invite them to bid on private jobs and numerous witnesses recounted tales of rejection by contractors throughout the area. Builders' Assn., 123 F. Supp. at 1113. The non-M/WBEs countered with evidence and testimony indicating that all bids, even unsolicited bids, were considered for subcontracting opportunities. Id. Finding in favor of the non-M/WBEs, the district court said, "[n]ot receiving an invitation to bid is not the same thing as being denied the opportunity to bid." Id.
Do not call it a set-aside
Under a State of Illinois competitive bidding statute, counties are required to select the "lowest responsible bidder." See Court Street Steak House, Inc. v. County of Tazewell, 163 Ill. 2d 159, 162, (1994) (citing 55 Ill. Comp. Stat. 5/5-1022). Similar statutes govern other types of public entities such as municipalities, park districts and school districts. Competitive bidding statutes are intended to prevent favoritism, fraud, and extravagance in securing a contract. Id. at 165. These statutes do not require a public entity to award the contract to the lowest bidder, but rather, permit a public entity, in the exercise of discretion, to award a contract in the public's best interest. S.N. Nielsen Co. v. Public Bldg. Comm'n, 81 Ill. 2d 290, 299 (1980).
The Illinois Supreme Court has held that a public body may consider the financial and social responsibility of the bidder, as well as the bidder's ability to perform the work. Id. More specifically, a public entity could consider the affirmative action efforts of the bidders. Id. In a similar vein, it is reasonable for a public entity to base a decision to award a contract on a bidder's practice of providing a valuable service to the community. In Court Street Steak House, the Illinois Supreme Court concluded that the contractor's training of mentally handicapped people validated the county's decision to award the county jail food service contract to that contractor rather than to the plaintiff, who was the lowest responsible bidder. 163 Ill. 2d at 167.
It bears mentioning that the public entity in S.N. Nielsen implemented a canvassing formula that deducted dollars from a bid for credits earned in the employment of minorities. 81 Ill. 2d at 292. In upholding the formula, the Supreme Court of Illinois concluded that "the capacity to assure a performance which complies with anti-discrimination laws is reasonably a part of the standard of a best or responsible bidder on a contract involving the expenditure of public funds. Accordingly, a bidder for a construction contract to be awarded by a public body of this state may be required to assure, by appropriate promises contained in contract provisions or related instruments, nondiscrimination in employment in the entire performance of the contract." Id. at 301. This approach, however, does not rely on specific percentages. Moreover, this standard would not require the hiring of any MBEs. It would also be difficult to monitor and evaluate.
Advice for the future
Government entities desiring to promote a more balanced participation by women and minorities in public contracting might be well advised to observe the following guidelines:
* Avoid establishing precise percentages as a condition to the award.
* Avoid naming specific minority groups
* Characterize the program or policy as a "goal" or require a "promise of attempted compliance" rather than imposing quotas.
* Request and maintain statistics of contractors where possible so that the goal does not continue to be pursued to the point of imbalance to the clear detriment of non-minorities.
* Be able to identify a "proper concern for the welfare of the community" if, in the contract award, the lowest responsible bidder is not selected.
While these measures may seem insufficient to qualify as a meaningful remedy for correcting prior injustices, there is a real risk of a successful challenge if a public body takes the aggressive route adopted by Cook County in Builders' Association. In the event the public body desires to pursue such a route, however, homework is necessary. The employer must gather relevant statistics to document the prior decision, hold public hearings, be prepared to acknowledge its own participation in the discriminatory practices, and articulate further findings that will survive the test of logic.
Seventh Circuit rejects gender discrimination claim in Indiana worker's reassignment to the night shift
A woman who was reassigned to supervisory duties on the night shift failed to prove that the reassignment constituted gender discrimination under Title VII, the Seventh Circuit Court of Appeals recently held. Grube v. Lau Industries, 257 F.3d 723 (7th Cir. 2001.)
Diann Grube brought suit against Lau Industries for transferring her to the second shift in 1997 after she returned to work from a medical leave. Although Grube resigned from the company rather than accept the transfer, she alleged that the reassignment amounted to a constructive discharge.
In a decision written by Judge John L. Coffey, the Seventh Circuit indicated that a mere change in working hours does not "rise to the level of creating a condition so unbearable as to allow an employee to quit and then bring a claim of constructive discharge ..." Id. at 728.
Grube asserted that the company "'preyed upon [her] wifely instincts' knowing that she would choose to quit so that she could take care of her husband rather than accept a transfer to the second shift." Id. at 728-29. Her counsel further suggested at oral argument that Grube's transfer to the second shift "was deliberately designed to make her working conditions intolerable because she could no longer be a dedicated wife and caregiver for her husband and because a female's income tends to supplement a family income, rather than provide the principal source of funds (and a male's income tends to be the primary family income.)" Id. at 729.
The court said that if it accepted this analysis, "any transfer of a married female employee to a less desirable work assignment could serve as the basis for a Title VII claim." Id. Moreover, the court said, the arguments were antithetical to Title VII's goal of preventing gender discrimination.
Grube urges this court to take a position that, rather than eradicating gender stereotypes that pervade the workplace, instead reinforces them. That is because Grube's theory is itself based upon a gender-specific stereotype--that women should be the family caregivers and should remain at home during the evening hours ... Title VII simply was never intended to be used as a vehicle for an employee to complain about the hours she is scheduled to work or the effect those hours have upon the time an employee spends with family members.
Id. As a factual matter, the court also noted that although Grube's husband had been ill, he had returned to work and did not require medical care at the time of Grube's reassignment.
Even if Grube had been able to establish that she was constructively discharged, the court said that Lau Industries had offered a legitimate, nondiscriminatory reason for the transfer. The company's evidence showed that Grube had been selected for reassignment because she was "not one of [Lau's] strongest supervisors" and that it was critical to keep their best supervisors on the first shift.
Grube contended that her supervisor "developed an animosity towards her" because "he had been shown up by a subordinate female employee" as a result of her boldness. The court, however, found Grube's comments to be pure speculation and insufficient to demonstrate pretext.
ABA Commission on Women honors Laurel G. Bellows
By Celia G. Gamrath, Partner, Schiller, DuCanto and Fleck, Chicago
The ABA Commission on Women in the Profession presented one of its most prestigious honors--the Margaret Brent Award--to Chicago lawyer Laurel G. Bellows last month.
Bellows, who was one of five women of achievement to receive the award this year, was nominated and endorsed by several bar associations, including the ISBA, as well as service and political organizations and prominent individuals. The award was presented at the Commission's 11th Annual Margaret Brent Awards Luncheon, which was the largest ticket event at the ABA Annual Meeting. The luncheon drew a sell-out crowd of more than 1,300 people, including several ISBA past and future presidents and Women and the Law Committee members.
The ABA Commission on Women established the Margaret Brent Award in 1991 to recognize and celebrate the accomplishments of women lawyers around the country who have achieved professional excellence in their field and have paved the way to success for other women lawyers. Margaret Brent was the first woman lawyer in America, an accomplished litigator, and respected leader. She was involved in 124 court cases over eight years--winning every case. Past recipients of the Margaret Brent Award have included some of the most notable women lawyers in the world, such as Justice Ruth Bader Ginsburg, Justice Sandra Day O'Connor, Chicagoan Esther Rothstein, Attorney General Janet Reno, and Bella Abzug.
Bellows so richly deserves the Margaret Brent Award for countless reasons, as expressed by her nominators and the ABA selection committee. She has been a lawyer in Chicago since 1974, and has enriched the legal community each and every day through her professional excellence and leadership. She has influenced numerous women to pursue legal careers and has assisted many women aspiring more from the profession. She has vigorously included and promoted women in community and professional activities and has been a visionary advocate for an ever-expanding role for women in the legal profession.
In 1992, Bellows was elected president of the Chicago Bar Association. As one of her many accomplishments, and in the face of staunch resistance, she created the Alliance for Women. The Alliance for Women shares many goals of the ISBA Women and the Law Committee, such as the advancement of women in the legal profession and the promotion of women with exceptional professional qualifications. In 1994, Bellows was appointed chair of the ABA Commission on Women, where she continued to spearhead the movement for women, breaking down barriers and building bridges between women lawyers.
Bellows is a major force behind several cutting edge, controversial programs focusing on women and minorities in the law schools, the courtroom, and the private and public sectors. The work she has started locally has expanded nationally, showing what a dynamic force she is throughout the country. Her influence extends to the ISBA, the ABA, and all other bar associations, as she is currently president of the National Conference of Bar Presidents.
As a mentor and role model, Bellows continues to inspire others, taking herself out of the limelight to applaud and recognize lesser-know women who have labored to help other women. Even Bellows's professional career concentrates on the legal needs of women, i.e., the negotiation of employment contracts, severance packages, and employment benefits for women. Bellows practices law with her husband, Joel. They are "partners in law and in life" at Bellows and Bellows in Chicago and the proud parents of a daughter Lindsey, who is currently in college.
Laurel--the ISBA, the Women and the Law Committee, and the entire State of Illinois could not be more proud of you and your example and accomplishments!
Girls and science meet InnerLink
By Susan Lynam, Science Educator in Residence, InnerLink, Ltd.
Susan Witt, the past chair of the Women and the Law Committee, would like to introduce you to a small (for now) company located in Lancaster, Pennsylvania, called InnerLink. Witt met the company's founder and chief medical officer, Dr. Robert Gillio, at the ISBA Annual Meeting in Lake Geneva, Wisconsin, and they found themselves in a conversation about girls and science instruction. A fifth grade teacher had told Dr. Gillio, the father of four daughters, that the teacher had to stop calling on Dr. Gillio's daughter in science class to give the boys a chance. In the teacher's view, "boys need to know science, girls don't." Well, not if you know Dr. Gillio and the founding team of InnerLink.
InnerLink is a new, dynamic educational technology company featuring interactive on-line learning products that promote scientific inquiry and exploration. Formed by a dedicated team of professionals in science, medicine, business, and education, the company's goal is to popularize science for learners and genders of all ages. Led by Dr. Gillio, who left a successful career in pulmonology and critical care medicine, the team also includes Martha Harris, chief executive officer, and Michael Curley, Ed.D.
With seven daughters between them, the founders created a company through which their daughters could be engaged in science and scientific research. InnerLink's core competency includes connecting learners to world class scientists to collaboratively solve significant research problems. Examples of their projects include their recent success with plant biology research on the International Space Station, a project called Orbital Laboratory. Students can now get signed up for the next of a series of missions in space, ecology, and health science. Payload 002, the next plant biology mission aboard the International Space Station, launches November 29, 2001, from Kennedy Space Center. In addition to the Orbital Laboratory project, InnerLink also offers Project Breathe (an ongoing project to supply health care professionals with the information they need to better serve and educate people about respiratory and cardiovascular health) and the Earth Ecosystem Project: Water (designed to supply professionals in all disciplines with the information they need to make better decisions, allowing for an adequate supply of water for future generations). Orbital Laboratory is available now for Fall 2000. Project Breathe and Earth Ecosystem Project: Water will be available in Spring 2002.