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|Publication Number: Date: Autumn 1994|
Issue No: Vol. 57 No. 2
Date: Autumn 1994
Passage of the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA) ushered in a new era of choice, freedom, and flexibility for the states. Under ISTEA, state transportation agencies have more flexibility than ever before in managing their programs and are freed from much unnecessary federal interference and bureaucratic delay.
This freedom and empowerment does not, however, negate states' responsibilities with regard to earlier congressional legislation -- notably legislation in the area of civil rights.
While the nature of the Federal Highway Administration's (FHWA) stewardship role has changed dramatically, our obligations as an agency and our duties as federal employees to prevent discrimination and ensure equal opportunity in employment and programs remain and continue to expand. States are thus required to comply with this legislative mandate by performing routine monitoring, compliance reviews, investigations, and oversight -- the very sorts of tedious, time-consuming activities that ISTEA had eliminated in so many other areas.
The differences in these legislative objectives and protocols -- the tension between flexibility and oversight -- is problematic. The situation is exacerbated by the simultaneous existence of limited resources -- which are threatened with further reductions -- and civil rights mandates whose number, scope, complexity, and objectives continue to increase.
Moreover, in attempting concurrent compliance with these various mandates, good faith efforts to meet the intent of one legislative goal can inadvertently contravene the provisions of another. The dilemma is clear: how do we meet and mesh statutory requirements that sometimes seem to conflict with each other into acceptable and workable processes to address serious and frequently time-critical problems?
The answer lies in understanding the nature and importance of civil rights legislation.
No one in public service has the authority to deny the rights of any person in the United States. To guarantee against violations of this fundamental precept, a variety of civil rights legislation, including both laws and executive orders that have the force and effect of laws, has been passed at both the federal and state levels. In general, this legislation requires FHWA, the states, and their contractors to:
The specific civil rights mandates that apply to programs funded by ISTEA are much too extensive to address -- or even list -- in this article, but the following at least should be mentioned.
Whenever employment is a primary purpose of federal legislation, Title VI of the 1964 Civil Rights Act applies to the employment made available by the legislation. The provisions of Title VI are the bedrock of modern civil rights legislation. They prohibit discrimination in all programs and activities of federal-aid recipients, subrecipients, and contractors, regardless of whether the program or activity is federally assisted.
Title VII of the 1964 Civil Rights Act established the Equal Employment Opportunity Commission and prohibited discrimination in employment based on race, color, religion, sex, or national origin. More recent statutes expanded the commission's scope to include age, wage rates, and disability.
When ISTEA was signed, its primary purpose was cited as "jobs, jobs, and jobs." The more than $151 billion to be pumped into the economy in transportation programs over the life of the act could either fuel the economy or fuel inflation, depending on how well our employment and training efforts can be translated from rhetoric to reality.
The employment opportunities ISTEA makes possible can be divided into those maintained and those created. Most of the employment opportunities maintained by the act are in the public sector, primarily within FHWA and state and local transportation agencies. Most of the jobs created by the act are expected to be in the private sector and involve work related to research and to the construction, operation, and maintenance of funded systems.
All of these jobs must be provided without discrimination. No one is to be preferred or excluded because of race, color, sex, national origin, age, or disability. This is equal employment opportunity. Equal opportunity does not guarantee work to anyone; instead, it guarantees that everyone will have the same chance to compete for that work. It also guarantees equality in all the terms and conditions of employment -- including recruitment and hiring; assignments; transfers; layoffs; demotions; rates of pay; equipment and shift assignments; opportunities for overtime, training, and promotions; priority for transfers; access to seniority systems; developmental and rotational assignments; and other employment benefits such as retirement and medical benefits, sick and annual leave, and selection or assignment to pools on a temporary or permanent basis.
Where underrepresentation of members of certain protected groups is found, affirmative action is expected to be applied. These protected groups include minorities (blacks, Hispanics, Asians and Pacific Islanders, Native Americans, and Alaskan natives), women, people more than 40 years of age (in an employment context) or any age (in terms of program impacts), and people with disabilities. Affirmative action is a mandatory process to ensure that diversity is achieved, equity advanced, and productivity increased. Affirmative action is not a spoils system; rather, it aims to expand recruitment efforts to identify qualified and qualifiable individuals from underrepresented groups to fill vacancies afforded by attrition or expansion in the workforces and to support these individuals with training, mentoring, broadened exposure, and the ability to learn from their mistakes.
Following these precepts makes sense from a business standpoint, as well as an ethical one. Systems that have been tainted by practices of preference, exclusion, a reliance on who -- rather than what -- a person knows, and harassment are inefficient, less productive, and poorly managed. Additionally, the penalties attached to civil rights legislation means that violations can be costly. Moreover, equal employment litigation is the fastest growing area of litigation, aside from criminal and personal injury litigation.
Complaints and findings of programmatic discrimination are likely when the arbitrary decisions of town, city, county, metropolitan planning organization, or state leaders result in infrastructure improvements in one segment of a jurisdiction while another segment -- easily identified by the race or ethnicity of its inhabitants -- is repeatedly "short-changed."
ISTEA has increased the vulnerability of state and local officials to complaints by members of protected groupsin cases in which decisions are based on subjective rather than objective criteria. People who are involved in or affected by the programs authorized by ISTEA need to know what opportunities exist, how they can be accessed, what is required/expected, and how to meet these requirements. Everyone in the country must be treated fairly, and anyone who believes that he or she was subjected to discrimination because of race, color, religion, sex, national origin, age, or disability may have a claim.
Some aspects of ISTEA have more potential to be perceived as discriminatory than others. These programmatic aspects include advance construction; the selection and prioritization of projects for construction; prioritization for receipt of roadside amenities; scheduling of maintenance; project development; design; statewide planning; functional classifications; award of consultant, maintenance, and other negotiated contracts; disposal of excess right-of-way; appraisal and relocation assistance; and allocations of funds to subrecipients.
The only legally, economically, and morally defensible position is to treat all people fairly in all situations, ensuring that race, color, religion, sex, national origin, age, or disability are not factors in decision making. To ensure a better understanding of concepts and approaches basic to preventing discrimination in federally assisted programs and activities, the staff of the Office of Civil Rights has embarked on a technical assistance initiative. This initiative features a training component and is available to all state departments of transportation. To date, pilot programs have been presented in New York, Oklahoma, and Colorado. Each presentation has been well-received, and its application is planned to be expanded during the coming years.
Edward W. Morris Jr. is the director of the FHWA Office of Civil Rights.