Reports to US Government utilizing "Hispanic" unilaterally re-defined
Julio M
when dealing with the small companies claiming to qualify for special
allocations awarded to minority-owned suppliers. A prevailing trend is
to rely on certification by the National Minority Supplier Development
Council and their affiliates.
Their definition of Hispanic is “a U.S. citizen of true-born Hispanic
heritage, from any of the Spanish-speaking areas of the following
regions: Mexico, Central America, South America and the Caribbean Basin
only. Brazilians shall be listed under Hispanic designation for
review and certification purposes.” It differs from US Census
definition by including Brazilians and excluding Spaniards.
The companies accepting such improperly defined certifications then
report to US their compliance with Affirmative Action and other laws,
e.g. those requiring certain minority contractor quotas for Federal
suppliers.
So far, there are no signs that this practice is being disallowed by
Feds. Is there is a single clearinghouse in the US Government that
validates the compliance practices in this area? What would be an
effective move by a business owner of Spanish descent to fight the
described exclusion effectively imposed by a particular corporation?
Mike Jacobs
> Many large and mid-size companies outsource verification of eligibility
> when dealing with the small companies claiming to qualify for special
> allocations awarded to minority-owned suppliers.
As I'm sure you know, those legally-mandated minority set-asides were
intended as a form of affirmative action to protect classes of persons
who had historically been subjected to prejudice and discrimination in
employment or contracting in USA in the past. Persons of Latin
American ethnic or national origin are one of those protected classes
intended to be helped by these affirmative set-aside programs. The
category name that just happens to be applied to that group, as a
shorthand for what is actually intended, is the label "Hispanic."
> A prevailing trend is
> to rely on certification by the National Minority Supplier Development
> Council and their affiliates.
Okay.
> Their definition of Hispanic is �a U.S. citizen of true-born Hispanic
> heritage, from any of the Spanish-speaking areas of the following
> regions: Mexico, Central America, South America and the Caribbean Basin
> only. Brazilians shall be listed under Hispanic designation for
> review and certification purposes.� It differs from US Census
> definition by including Brazilians and excluding Spaniards.
And why not? The national-origin discrimination this categorization
and set-aside is supposed to help prevent deals with the prevailing
effects of prejudice against persons of Latin American origin, not
prejudice against pure-blooded Europeans who hail from the Iberian
Peninsula. Those Latin-Americans who are most subject to
discriminatory prejudices in North America are the various "Browns"*
of mixed racial heritage, native Indians, Mestizos, Mulattoes, and
Black descendants of African ancestors who were brought to Latin
America or the Caribbean originally as slaves. Pure-blooded Spaniards
are as "white" as any other European, to someone who even buys into
that kind of racial classification. Although certain "Aryan" northern
Europeans or others of that racialist persuasion may also discriminate
against Europeans of Mediterranean origin such as Spaniards, Italians,
French, Greek, Turk, Arab, and Jew, that is a completely DIFFERENT
basis of discrimination than the prejudice exerted in USA against
those of Latin-American heritage.
* Just for shorthand purposes, I may use "Browns" in this post to
refer to those various, separate groups of non-white ethnicities who
make up the majority of the Latin Americans in the USA. I do not
mean to imply anything by use of that term other than that, and
certainly I don't mean it as a slur. But, since many proponents of
"La Raza" and other advocates for Latin-American interests in USA
often refer to themselves as "Brown" too, I see no harm in it.
There are in fact very _few_ ethnic Spaniards in the Latin American
population, at least in those countries who have most prolifically
sent immigrants to the USA. Guatemala, frex, is 55% native Indian
and 44% Mestizo per a recent ethnological report available at
http://www.ethnologue.com/show_country.asp?name=gt which leaves only
about 1% (or less) as pure-blooded white Spaniards.
By contrast, the demographic spread in Argentina is about 97% white,
and only 3% Mestizo, Amerindian, and other non-white groups, per
http://open-site.org/Regional/South_America/Argentina/Society_and_Culture/Ethnicity
But there are also by contrast not so many Argentinians of _any_ color
or race who emigrate to the USA as there are Guatemalans or Mexicans
or Salvadoreans (the immigrants among all of whom are overwhelmingly
Browns).
There are, however, large numbers of Brazilians in USA, who, like
their Mexican, Guatemalan, etc. contemporaries, mostly draw immigrants
from the poorer, Brown-er classes of Brazilian society into the USA.
Just as with European immigration to USA that peaked a century ago,
those who are of the _upper_ social classes in the "old country" -
such as white Spaniards or white Portuguese - or who (despite mixed
heritage) are economically well-off, are far more likely to stay
behind in their native country than to give up the life they knew and
move to a completely new country.
> The companies accepting such improperly defined certifications
YOU are the only one who says such certifications are improperly
defined. If the standards are published, and the results accurately
reported, then the results mean what they mean, which is turn is what
those looking for and applying such results INTEND them to mean for
THIS purpose (taking affirmative steps to overcome the discrimination
historically displayed against Brown Latin Americans). There is NO
compelling reason, in this context or ANY OTHER context, why a term
which is given a specific definition in one legal usage should comply
in all its particulars with the common, colloquial meaning of that
term, OR with the way that same word is defined in ANOTHER, unrelated
legal context.* ISTM that is where you got your incorrect notion
that there is something "wrong" with defining "Hispanic" differently
for Census purposes than for minority-hire certification purposes -
not that _either_ of those definitions is precisely in line with what
we mean by "Hispanic" in colloquial speech.
* (Frex, we saw another example of this in a recent thread on MLM
where some confusion arose over the statutory definition of "owner" in
a theft statute, in case an "actual owner" would be accused of
stealing "his own" goods back from a "thief-in-possession" who met the
statutory definition of "owner" for that purpose because "owner" for
this statute was defined as "person in possession.")
For that matter, what DOES that term "Hispanic" mean TO YOU in
everyday speech? Does it mean only persons with _some_ ancestry
traceable to the country of Spain? If so, where does that leave
persons in USA who are natives of Mexico, Guatemala, etc. with NO
traceable Spanish blood - those of pure Indian stock, or pure Black
African ancestral stock, or a Black-Indian mixture? They are Latin-
Americans too, and they are among those intended to be protected.
Or, does it mean people who SPEAK Spanish (rather than Portuguese, or
English or German) at home or as their "native" tongue? Where does
that leave persons of Latin-American descent in the USA who may NOT be
bilingual, or fluent in any Iberian language? Where does it leave
native Mayans from Mexico who speak Yucatec, or native Incans from
Peru who speak Quechua instead of Spanish? Or, Chicanos of Mexican
heritage from California or Texas who speak only English both at home
and in public? Again, they too are _intended_ to be included in the
protection extended to Latin-Americans by minority set-asides, even if
they speak no Spanish.
Or, should the term "Hispanic" apply only to anyone with a Spanish-
sounding surname? Although that is one common way persons get
designated as "Hispanic" in colloquial usage in USA, it is far from
accurate and has only vague overlap with the group of persons sought
to be protected by minority-set-aside legislation. A person who fits
well within the intended class of protection may have changed their
name to something more Anglo-sounding, precisely because that too
helps them fight the discrimination their ancestors historically dealt
with if they had both a Latin-American-looking face _and_ a Spanish-
sounding name. There is probably more than one Albert Roderick in the
USA whose mother had named him Alberto Rodriguez. (We Jews know a lot
about that phenomenon also - many of our ancestors changed their
surnames, at Ellis Island or shortly thereafter, to something more
Anglo-sounding, but we're still Jews.)
You see, there is no one definition that suffices. Each purpose for
which a definition is needed will have to supply its own criteria, and
even then, the fit will not be perfect. Do white Argentinians really
need the protection of this statute any more than white Spaniards
do? No, IMO, but the Argentinians get it, because they hail from
Latin America, and the Spaniard from Europe doesn't. Unfortunately,
that's just the way it is - but the clear statutory intent (and the
vast majority of those being _helped_) was to give a leg up to
historically-discriminated-against Brown people of Latin-American
origin, not to Whites where ever their ancestors came from.
> report to US their compliance with Affirmative Action and other laws,
> e.g. those requiring certain minority contractor quotas for Federal
> suppliers.
Right. And for that purpose, the definition of "Hispanic" being
applied is about as close as we can reasonably get to a good fit with
the group of persons the statute is intended to benefit.
> So far, there are no signs that this practice is being disallowed by
> Feds.
Why should it be? Spaniards who have not historically suffered
discrimination in USA do not have a moral claim to access these set-
asides. OTOH if there would be, say, a rash of claimants for set-
asides who were in fact White Argentinians of pure-blooded Spanish (or
German) descent, and who were economically well-off even without such
set-asides, one might contemplate the statutory definition changing
again in the OTHER direction, to make it MORE restrictive as to who
can apply for such minority set-asides, so that White Argentineans
will _no_longer_ be able to apply. As it is now, though, the
frequency of such claims (compared to those by Brown peoples)
> Is there is a single clearinghouse in the US Government that
> validates the compliance practices in this area? What would be an
> effective move by a business owner of Spanish descent to fight the
> described exclusion effectively imposed by a particular corporation?
You could always lobby for a change in the law of minority set-
asides. Keep in mind, however, that once you get the ball rolling,
the change is just as likely to be AGAINST you as it is to HELP you,
if you are _not_ in fact a member of an ethnic group that truly _did_
experience a significant level of historical prejudice and
discrimination in USA. I just don't think Spaniards of European
descent have ever had that experience here in any numbers. So, the
law is not likely to be changed to include you and your ancestors and
relatives within the protected class - you will just have to muddle
through, as you always have, with just the privileges that USA society
has always accorded to Free White Males as your passport to business
success.
Mind you, I'm NOT advocating one way or the other here for the wisdom
of such minority set-asides or any other particular affirmative-action
plan. But, where such set-asides are in place and are defined by
law, any changes in those laws are going to be made based on what the
law is trying to accomplish. All I'm saying is, it would not help
further the purposes of these laws to modify them so that White
European Spaniards are included in their special protection.
It's not easy for ANY of us, of ANY ethnicity, to make it economically
these days, so I do sympathize with your plight. But, frex, I'm
Jewish. Do you see any law in USA making minority set-asides for
persons of European Jewish heritage? No? Neither do I. You and I
are in the same boat. In fact, today Jews are again _more_ likely to
face restrictive quotas in certain job fields, academic admissions,
etc. because they are perceived as OVER-represented in those areas or
professions. Do you see me complaining? No. So, kwitcher
bellyachin' and get to work.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Robert Bonomi
Julio M <jmor...@g-mail.com> wrote:
>Many large and mid-size companies outsource verification of eligibility
>when dealing with the small companies claiming to qualify for special
>allocations awarded to minority-owned suppliers. A prevailing trend is
>to rely on certification by the National Minority Supplier Development
>
'Improperly defined" is an claim for which you provide no factual basis.
There is _nothing_ in law that prohibits different governmental agencies
from using different methods of classification for their own purposes.
> What would be an
>effective move by a business owner of Spanish descent to fight the
>described exclusion effectively imposed by a particular corporation?
See the actual language of the _law_, or Federal Regulation that provides
the 'special allocations' to which you refer. See how _that_ body of
policy _defines_ the various 'minority' groups involved. Then, the
business owner simply has to put together all the appropriate documentation
showing that they *DO* qualify under the _relevant_ legal definition.
Supply said documentation as part of the application for special treatment.
If the classification is denied, based on the (as you claim 'incorrect')
third-party criteria, _appeal_ that denial on the basis that they _are_
using 'incorrect' criteria *PER*THE*GOVERNING*DESCRIPTION* of the terms
in the controlling law/regulations.
Note: a company is under _no_ compulsion to accept any potential vendor's
claim (even if it _is_ accurate) as a MBE, and give that vendor preferential
treatment. They're under no compulsion to do any sort of business with
_any_ potential vendor, so there is very, _very_ little 'leverage' that a
purported MBE can employ to force the door open.
Practically all large businesses _do_ have a 'review and appeal' process for
such decisions -- but, if not, the only other alternative is to go to court
over the matter. This is a path that is unlikely of success -- the company
can argue that it is 'within their discretion' as to whether or not they
classify any _fully-qualified_ potential vendor as a MBE. They have a
'self interest' in qualifying as many vendors as possible, but they have
no *REQUIREMENT* to include any particular vendor in that classification.
Julio M
>> definition by including Brazilians and excluding Spaniards.
> 'Improperly defined" is an claim for which you provide no factual basis.
With no single definition, would it be equally valid for a corporation
to declare that its policy is to follow the current US Cencus
definition in its classification of individual job applicants and small
suppliers as minority? Just to exclude the risk of rubber-stamping some
future untested NGO changes of definition...
Seth
Robert Bonomi <bon...@host122.r-bonomi.com> wrote:
>In article <mn.e2807d9cb...@g-mail.com>,
>Julio M <jmor...@g-mail.com> wrote:
>>Many large and mid-size companies outsource verification of eligibility
>>when dealing with the small companies claiming to qualify for special
>>allocations awarded to minority-owned suppliers. A prevailing trend is
>>to rely on certification by the National Minority Supplier Development
>>Council and their affiliates.
. . .
>claim (even if it _is_ accurate) as a MBE, and give that vendor preferential
>treatment. They're under no compulsion to do any sort of business with
>_any_ potential vendor, so there is very, _very_ little 'leverage' that a
>purported MBE can employ to force the door open.
If a company denies the vendor business due to the vendor being
mis-classified as "not a minority-owned company" by the NMSDC, would
it have cause for action against the NMSDC?
Seth
Cy Pres
(Robert Bonomi) wrote:
>In article <mn.e2807d9cb...@g-mail.com>,
>Julio M <jmor...@g-mail.com> wrote:
>>Many large and mid-size companies outsource verification of eligibility
>>when dealing with the small companies claiming to qualify for special
>>allocations awarded to minority-owned suppliers. A prevailing trend is
>>to rely on certification by the National Minority Supplier Development
>>Council and their affiliates. .... It differs from US Census
>>definition by including Brazilians and excluding Spaniards.
>>
>>The companies accepting such improperly defined certifications .....
>
>'Improperly defined" is an claim for which you provide no factual basis.
>
>There is _nothing_ in law that prohibits different governmental agencies
>from using different methods of classification for their own purposes.
There is when it is done in an invidiously discriminatory way.
Discrimination based on national origin is a category which generally
invokes strict scrutiny. The burden would be on the governmental (or
quasi-governmental) agency to show a compelling government interest
and that the discriminatory measure is narrowly tailored to that
interest. The leading case on these government programs to benefit
traditionally disadvantaged minorities is Adarand Constructors, Inc.
v. Pe�a. 515 U.S. 200 (1995).
I would presume the claimed interest is in benefiting traditionally
disadvantaged minorities, and that the entity has determined,
correctly or not, that people from Spain are not traditionally
disadvantaged.
Such decisions are subject to the highest level of judicial scrutiny,
and unless the exact regulation in question has actually been upheld
already, the outcome of a challenge is not a certainty. Only a
practitioner in this particular field should answer these questions.
Another potentially thorny issue is that the entity making these
determinations does not appear actually to be a government entity, but
some kind of private organization. Whether or not this entity is
acting in a quasi-governmental manner is also likely to be critical,
and present questions not answerable without serious legal research.
There are also probably procedural hurdles to bringing such a claim,
such as having to exhaust any administrative appeals available within
the agency itself, possibly filing a notice of claim pursuant to the
Federal Tort Claims Act or some state analog, and not blowing any
statutes of limitations. The timeframe for some of these things is
pretty slim, so the OP should consult knowledgeable legal counsel
immediately to a) determine whether he has a claim that's worth
pursuing; and b) make sure he doesn't blow any critical deadlines and
waive his rights, if any.
In any case, there is probably enough money involved here that OP
shouldn't gamble on off the cuff guesses from a newsgroup.
Cy Pres
wrote:
It might depend on who was suing and why. In the situation in your
first post, it could be that a person descended from Spanish
Europeans[*] would have a claim of national origin discrimination. In
the second case, it might be that a WASP would have a claim of similar
discrimination, on the grounds that a policy favoring Spanish
Europeans over, say, Europeans of English descent, is *not* narrowly
tailored to serve the compelling government interest of assisting
traditionally disadvantaged minorities because Spanish Europeans are
*not* traditionally disadvantaged minorities.
I'm not going to make any guess as to the strength of these potential
claims, however. It's possible that Spanish Europeans would be able
to present studies, surveys, or other evidence that, in fact, Spanish
Europeans with "Latin-sounding" surnames are subject to the same
discrimination regardless of skin color and that, therefore, they are
improperly excluded from the "Hispanic" category.
[*] Assumed for this article to be basically "white people" of Spanish
descent even though that may not be correct.
Robert Bonomi
That all depends on what the governing _law_ says. And/or the specific
agency regulations implementing those laws.
The fact remaqins that the corporation _can_ decide not to certify *any*
of their vendors, and deal with the government without the preferences
that accrue from such certification.
In that situation, the 'excluded' minority (prospective) vendor has *NO*
*RE#COURSE*WHATSOEVER*. Except to seek a different corporation to supply
their goods/services to.
Robert Bonomi
I repeat, does the company have any legal requirement to do business with
-that- vendor?
They may get 'preferential' treatment from the gov't _for_ having such
vendors, but if they decide that 'preference' is 'not worth the cost',
_who_ has "standing" to challenge *that* decision?
Seth
Julio M <jmor...@g-mail.com> wrote:
>>> It differs from US Census
>>> definition by including Brazilians and excluding Spaniards.
>
>> 'Improperly defined" is an claim for which you provide no factual basis.
>
>With no single definition, would it be equally valid for a corporation
>to declare that its policy is to follow the current US Cencus
>definition in its classification of individual job applicants and small
>suppliers as minority?
If it is for purposes of certifying their compliance with a particular
law, then they have to use the definition specified in that particular
law (or the regulations implementing it).
Seth
Robert Bonomi
Cy Pres <c.p...@yahoo.com> wrote:
>On Wed, 30 Dec 2009 13:57:02 -0600, bon...@host122.r-bonomi.com
>(Robert Bonomi) wrote:
>
>>There is _nothing_ in law that prohibits different governmental agencies
>>from using different methods of classification for their own purposes.
>
>There is when it is done in an invidiously discriminatory way.
>Discrimination based on national origin is a category which generally
>invokes strict scrutiny. The burden would be on the governmental (or
>quasi-governmental) agency to show a compelling government interest
>and that the discriminatory measure is narrowly tailored to that
>interest. The leading case on these government programs to benefit
>traditionally disadvantaged minorities is Adarand Constructors, Inc.
>v. Pe�a. 515 U.S. 200 (1995).
OK, but _who_ does the 'discriminated against' potential vendor sue?
1) The NGO that is 'certifying' the MBEs according to the governing statutes
and agency regulations of the controlling agency?`
2) The contractor that they wish to be a sub-contractor for?`o
3) The Agency that promulgated the rules that the contractor is following.
Where is the compulsion in law that _requires_ the contractor to certify
and report *any* sub-contractor as an MBE? There are advantages to the
contractor to do so, by where is the *compulsion*?
If the contractor already _has_ the requisite proportions of MBE sub-
contractors to get maximal 'preferential' treatment, is there any
compulsion to certify any additional sub-contractors, regardless of
whether or not they meet the criteria used in certifying their crop
of current sub-contractors?
It _is_ (arguably) in their best interest to certify the additional sub-
contractors, but is is *required* that they do so?
Until _that_ point is established, I don't see how the OP's plaintiff has
a viable suit against _anyone_.
But, then, I don't practice law. :)
Julio M
>> from using different methods of classification for their own purposes.
>
> There is when it is done in an invidiously discriminatory way.
different definitions of minority. I was wondering about an ability of
a private company to hire a private eligibility screener utilizing
their own definition. It means that the same US agency accepts as
compliant businesses using (via a third party process), in extreme
cases, even mutually exclusive definitions of minority.
Seth
Robert Bonomi <bon...@host122.r-bonomi.com> wrote:
>In article <hhimjv$u4$2...@reader1.panix.com>, Seth <se...@panix.com> wrote:
>>If a company denies the vendor business due to the vendor being
>>mis-classified as "not a minority-owned company" by the NMSDC, would
>>it have cause for action against the NMSDC?
>
>I repeat, does the company have any legal requirement to do business with
>-that- vendor?
No, it doesn't. But it seems here that the hypothetical case is that
the company *would have* done business with that vendor except for the
NMSDC *lying* (well, reporting falsely) about that vendor.
Is the NMSDC making a mis-statement about a vendor, which costs the
vendor business, actionable?
If the NMSDC states that "we certify according to these specified
rules: . . ." and those don't correspond with the government-defined
rules (but are stricter so that using them is safe for a company that
wants to say "at least X% of our vendors meet the government's
definition of . . ."), I don't see how there's a cause for action.
NMSDC states the truth, and the company decides to use NMSDC's
certifications as the easy (inexpensive) way to check eligibility.
Seth
Cy Pres
(Robert Bonomi) wrote:
>In article <nmupj5h89jt0novod...@4ax.com>,
>Cy Pres <c.p...@yahoo.com> wrote:
>>On Wed, 30 Dec 2009 13:57:02 -0600, bon...@host122.r-bonomi.com
>>(Robert Bonomi) wrote:
>>>There is _nothing_ in law that prohibits different governmental agencies
>>>from using different methods of classification for their own purposes.
>>There is when it is done in an invidiously discriminatory way.
>>Discrimination based on national origin is a category which generally
>>invokes strict scrutiny. The burden would be on the governmental (or
>>quasi-governmental) agency to show a compelling government interest
>>and that the discriminatory measure is narrowly tailored to that
>>interest. The leading case on these government programs to benefit
>>traditionally disadvantaged minorities is Adarand Constructors, Inc.
>>v. Pe�a. 515 U.S. 200 (1995).
>OK, but _who_ does the 'discriminated against' potential vendor sue?
Considering the cost of litigation, the dangers of failing to sue the
right person or entity, and the money that must be at stake if anyone
is bothering to sue at all, pretty much everyone.
>1) The NGO that is 'certifying' the MBEs according to the governing statutes
> and agency regulations of the controlling agency?`
Yes. It's effectively acting as "the government" in this case, since
its job is to advise other entities what the law is, presumably at the
behest of the government itself.
Alternately, it's negligently performing its duties, or perhaps even
maliciously failing to perform them.
If not, that will come out in discovery.
>2) The contractor that they wish to be a sub-contractor for?`o
Probably them too, even though they probably have a number of good
defenses.
Perhaps they'll settle out and testify as to why they made their
choices as they did.
>3) The Agency that promulgated the rules that the contractor is following.
All of the above. Plus the United States government, which has
promulgated the laws and/or regulations at issue, with both facial and
as-applied challenges to the law(s) in question.
>Where is the compulsion in law that _requires_ the contractor to certify
>and report *any* sub-contractor as an MBE? There are advantages to the
>contractor to do so, by where is the *compulsion*?
There probably isn't, but if the regulation itself has some kind of
impermissible bias in it, and they followed *that* impermissible bias
in making their decision, they might be illegally discriminating, even
despite their own best efforts to comply with what they thought the
law was.
This isn't terribly fair, which is why such a defendant is likely to
win on summary judgment, but it could be malpractice to fail to sue a
proper defendant, so this defendant probably gets sued, too.
>If the contractor already _has_ the requisite proportions of MBE sub-
>contractors to get maximal 'preferential' treatment, is there any
>compulsion to certify any additional sub-contractors, regardless of
>whether or not they meet the criteria used in certifying their crop
>of current sub-contractors?
No. But if the decision is made due to a decision to discriminate
specifically against European people of Spanish descent, and doing
this in the context of MBE contractors is found to be illegal
discrimination, then it really isn't a defense that the contractor
misunderstood constitutional and civil rights law.,
>It _is_ (arguably) in their best interest to certify the additional sub-
>contractors, but is is *required* that they do so?
No. Probably.
>Until _that_ point is established, I don't see how the OP's plaintiff has
>a viable suit against _anyone_.
>But, then, I don't practice law. :)
Which is why the OP should consult someone who *does*, preferably in
the area of law covered by Adarand and its progeny, to find out if
there's any case at all, if it's any good, and if it's worth pursuing.
I personally don't approve of disgruntled white people using civil
rights laws meant to promote racial equality in order to promote their
own interests, but several people (Bakke and Gratz and Adarand
Construction to name a few) have successfully done so, and there might
be a cause of action worth pursuing.
It could always be, however, that the regulation in question has
already been challenged in every possible way (regulations like this
tend to invite litigation) and has already been upheld. That's
another reason the OP should consult a seasoned litigator. Nobody
here has the motivation to do the serious research it would take to
decide whether there's a case here and meanwhile, the clock is ticking
on tort claims.
Cy Pres
wrote:
>>> There is _nothing_ in law that prohibits different governmental agencies
I've been answering a different question than the one you asked, then.
I was operating on the assumption that the *government* (state or
federal) had hired a third party agency to interpret its own
regulations, which were then applied to you.
However, the only answer I have is really the same. If there is a
substantial amount of money involved, you need to talk to a lawyer who
actually works in this field.
The only real difference here (which makes a lawsuit more difficult)
is whether the third party agency is just giving legal advice or is,
itself, enforcing federal law somehow. There are, for that matter,
other theories by which they could be liable.
Similarly, whether the contractor is in compliance with the law is an
issue.
Neither of these questions are easy, though after your clarification,
I'd say that both the contractor and the third party eligibility
screener are probably in better shape (with regards to you) than I
thought given my misreading of your original post.
Robert Bonomi
You need to see what the law and the regulations of the RELEVANT government
agency require. What the Census bureau uses is not relevant.
If a third-party is certifying someone as compliant, who is -not- compliant,
there may be basis for complaint. If they are not certifying someone who
is eligible, that is a more difficult problem.
As for your 'hypothetical' abut the 'same US agency' accepting mutually
exclusive third-party definitions, _prove_ it.
Show two private certifying agencies, that use mutually exclusive definitions,
_AND_ name the single government agency that accepts both definitions as
meeting the requirements of a specified law or agency regulation. Be sure
to identify the particular law and/or agency regulation, as well.
Seth
Cy Pres <c.p...@yahoo.com> wrote:
>The only real difference here (which makes a lawsuit more difficult)
>is whether the third party agency is just giving legal advice or is,
>itself, enforcing federal law somehow. There are, for that matter,
>other theories by which they could be liable.
I would think it's giving _factual_ advice: "This company meets our
definition <X>."
Seth
Seth
Robert Bonomi <bon...@host122.r-bonomi.com> wrote:
>If a third-party is certifying someone as compliant, who is -not- compliant,
>there may be basis for complaint. If they are not certifying someone who
>is eligible, that is a more difficult problem.
>
>As for your 'hypothetical' abut the 'same US agency' accepting mutually
>exclusive third-party definitions, _prove_ it.
>
>Show two private certifying agencies, that use mutually exclusive definitions,
>_AND_ name the single government agency that accepts both definitions as
>meeting the requirements of a specified law or agency regulation. Be sure
>to identify the particular law and/or agency regulation, as well.
It's easy to construct a hypothetical: the government wants preference
given to minorities.
Certifier A certifies minorities of African origin.
Certifier B certifies minorities of South American origin.
They both use definitions that are strictly subsets of the
government's definition.
Seth
Robert Bonomi
Cy Pres <c.p...@yahoo.com> wrote:
>On Fri, 01 Jan 2010 15:09:58 -0600, bon...@host122.r-bonomi.com
>(Robert Bonomi) wrote:
>
>>OK, but _who_ does the 'discriminated against' potential vendor sue?
>
>Considering the cost of litigation, the dangers of failing to sue the
>right person or entity, and the money that must be at stake if anyone
>is bothering to sue at all, pretty much everyone.
I should rephrase that -- who does the potential vendor sue, such that he
has a reasonable chance of _prevailing_?
>>1) The NGO that is 'certifying' the MBEs according to the governing statutes
>> and agency regulations of the controlling agency?`
>
>Yes. It's effectively acting as "the government" in this case, since
>its job is to advise other entities what the law is, presumably at the
>behest of the government itself.
But WHAT BASIS is there for a suit =if= the NGO _is_ using the relevant
definition in statute and/or controlling gov't agency regulations?
(that is, the MBE set-asides *does* use a different definition of Hispanic
than the Bureau of the Census, and those of Iberian background are
properly _not_ eligible)
Note well that I am simply re-stating a condition expressly specified in the
statement to which you responded.
Somehow I can't see the courts allowing an "I don't like the government's
rules, so I'm suing the party who _is_ following them" argument to proceed. :)
>Alternately, it's negligently performing its duties, or perhaps even
>maliciously failing to perform them.
"Assumes facts not in evidence".
ALL that has been asserted is that the NGO is certifying on different
standards than the Bureau of the Census uses for _its_ classifications..
It is -highly- likely that said NGO *is*, in fact, using the criteria
mandated in statute and/or 'relevant agency' regulations. That the
Bureau of the Census definition is _not_ applicable to _this_ situation.
(that OP is 'cherry picking' his "facts", and presenting only what
he has been able to find that, _somewhat_, supports his assertation.)
One should *really* find out =IF= any sort of tort has been committed
_before_ filing suit. <grin>
>>2) The contractor that they wish to be a sub-contractor for?
>
>Probably them too, even though they probably have a number of good
>defenses.
>
>Perhaps they'll settle out and testify as to why they made their
>choices as they did.
>
>>3) The Agency that promulgated the rules that the contractor is following.
>
>All of the above. Plus the United States government, which has
>promulgated the laws and/or regulations at issue, with both facial and
>as-applied challenges to the law(s) in question.
Doesn't the issue of 'sovereign immunity' come into play here -- where you
have to have the 'permission' of the Federal Government to sue the Federal
Government?
>>If the contractor already _has_ the requisite proportions of MBE sub-
>>contractors to get maximal 'preferential' treatment, is there any
>>compulsion to certify any additional sub-contractors, regardless of
>>whether or not they meet the criteria used in certifying their crop
>>of current sub-contractors?
>
>No. But if the decision is made due to a decision to discriminate
>specifically against European people of Spanish descent, and doing
>this in the context of MBE contractors is found to be illegal
>discrimination, then it really isn't a defense that the contractor
>misunderstood constitutional and civil rights law.,
Sorry, but -nothing- in the facts so far provided show that the gov't
contractor _is_ discriminating against anyone, on *any* basis. The
ONLY claim is that they're failing to give preferential consideration
to a party of Iberian background.
While it is well recognized that 'national origin' is a protected class,
and that one cannot discriminate against someone _solely_ on that basis,
that is -not- the allegation being raise by the OP. He is alleging that
-his- 'class' is being treated the _same_ anyone else, except for those
classes specifically singled out by law and regulation for preferential
treatment in certain situations. And that he has a belief -- without _any_
show of factual support, i.e., the actual language defining the class in
question for _this_ application -- that he should be considered one of
those classes for which preferential treatment is _authorized_, but *NOT*
mandated.
The OP doesn't even know _how_ the term 'Hispanic' is defined _by_the_
_government_ for purposes of establishing MBE set-asides. He, in fact
asserts, implicitly, that there is -no- definition of the term in statute
or 'relevant agency' regulations. An assertation which, given the extended
time said policy has been in effect, is -- on the face of it -- laughable.
(If there actually _was_ no such controlling definition, there would have
been lawsuits almost instantly by primary contractors, on the basis of
the 'impossibility' of compliance. Even if there were no pre-emptive
challenges, the matter *would* assuredly have been raised the first time
any contractor was penalized for non-compliance. Since it is a matter of
record that there _have_ been penalties assessed, on multiple occasions,
it -is- safe to conclude [without performing the actual research to locate
it] that there *IS* an actual definition enshrined in statute or 'relevant
agency' regulations.)
>>It _is_ (arguably) in their best interest to certify the additional sub-
>>contractors, but is is *required* that they do so?
>
>No. Probably.
So, given what we 'know' from the OP's reportage -- Which is _only_ that
The Iberian-descent-owned company was not granted preferential treatment as
a 'Hispanic' MBE by the gov't contractor -- it is entirely possible that:
a) the NGO is certifying 'Hispanics' using the exact criteria specified
by the controlling gov't agency, and OP is -not- in fact eligible
for said preferential treatment.
b) the contractor is not seeking _any_ additional MBE subs, and the
refusal to grant preferential treatment had nothing to do with
whether or not OP's 'national origin' qualifies as 'Hispanic' (by
_any_ definition).
Cy Pres
(Robert Bonomi) wrote:
[Snips throughout]
>In article <41jvj55g0000jckqm...@4ax.com>,
>Cy Pres <c.p...@yahoo.com> wrote:
>>Considering the cost of litigation, the dangers of failing to sue the
>>right person or entity, and the money that must be at stake if anyone
>>is bothering to sue at all, pretty much everyone.
>I should rephrase that -- who does the potential vendor sue, such that he
>has a reasonable chance of _prevailing_?
Maybe nobody. Maybe lots of people. We don't really even know at
this point whether there's a case at all. I suspect there are causes
of action buried somewhere in this situation, but I don't know
whether, for instance, a court has already looked at this exact
situation and okayed it.
>>>1) The NGO that is 'certifying' the MBEs according to the governing statutes
>>> and agency regulations of the controlling agency?`
>>Yes. It's effectively acting as "the government" in this case, since
>>its job is to advise other entities what the law is, presumably at the
>>behest of the government itself.
>But WHAT BASIS is there for a suit =if= the NGO _is_ using the relevant
>definition in statute and/or controlling gov't agency regulations?
>(that is, the MBE set-asides *does* use a different definition of Hispanic
> than the Bureau of the Census, and those of Iberian background are
> properly _not_ eligible)
There might not be. It depends partly on whether the entity has any
discretion and abused that discretion in a manner which harmed the
plaintiff. Even if they have no discretion at all, though, and are
simply mechanically applying a formula given to them by the
government, they should probably still be named in any suit simply so
they can be named in the injunction as well, if the plaintiff seeks to
enjoin the allegedly invidious discrimination.
>Note well that I am simply re-stating a condition expressly specified in the
>statement to which you responded.
>Somehow I can't see the courts allowing an "I don't like the government's
>rules, so I'm suing the party who _is_ following them" argument to proceed. :)
The rules are what would be being challenged, either the regulations,
possibly for failing to carry out the law, or the law itself, for
being unconstitutional. Additionally, if the law and regulations
*are* proper, but the agency is *not* carrying them out, that *might*
create a private cause of action as well, whether or not the statute
says so.
It can be *very* tricky to prove the existence of such an implied
cause of action, though, and some laws explicitly state that no such
cause of action exists.
>>Alternately, it's negligently performing its duties, or perhaps even
>>maliciously failing to perform them.
>"Assumes facts not in evidence".
We don't have many facts here.
[Sue everybody if there's a case.]
>>All of the above. Plus the United States government, which has
>>promulgated the laws and/or regulations at issue, with both facial and
>>as-applied challenges to the law(s) in question.
>Doesn't the issue of 'sovereign immunity' come into play here -- where you
>have to have the 'permission' of the Federal Government to sue the Federal
>Government?
Only regarding suits for money damages, not challenges to laws or
regulations which affect you personally in a redressable manner.
Generally, such suits are at equity, i.e. for injunctive relief. The
suit would seek to enjoin the government or its agents from enforcing
the rule in the allegedly invidiously discriminatory manner.
>Sorry, but -nothing- in the facts so far provided show that the gov't
>contractor _is_ discriminating against anyone, on *any* basis. The
>ONLY claim is that they're failing to give preferential consideration
>to a party of Iberian background.
That's part of the question as to whether or not there's a suit here,
and if so, what it's about and who is liable, if anyone, or who can be
enjoined, if anyone. For instance, suppose this contractor would not
have gotten the contract even *if* he qualified for MBE status. In
that case, there would be no harm and therefore, no standing. Suppose
the contractor has retired and has no intention of ever operating in
the business in question again. Then there is no future harm, and no
basis for an injunction.
[More "we don't know exactly what's going on here" snipped since, in
fact, we don't know exactly what's going on here. OP should consider
whether or not to share more details especially if discussing the case
publicly might tend to prejudice it.]
Cy Pres
I think whether it is an issue of fact or law (or a mixed issue) would
be an issue of law, and would depend on *exactly* what they're saying
and doing, whether anyone else is bound by what they determine, and
what kind of professionals (if any) are involved in the process.
For instance, saying "Business Entity Whozit is run by a white person
of Iberian descent," would be factual. "Business Entity Whozit meets
the legal standard of an MBE under bla bla United States Code and yada
yada CFR et cetera" would be legal.