MEMORANDUM. July 20, 2012

Transcription

1 MEMORANDUM July 20, 2012 To: From: Subject: Sound Transit Board of Directors Joni Earl, Chief Executive Officer Leslie Jones, Director, Diversity Programs Office Desmond Brown, General Counsel U-220 Investigation This memorandum is a summary of the issues and the actions taken in response to complaints received from individual workers, community stakeholders, and labor unions about the employment practices, processes and actions of Traylor/Frontier Kemper ( TFK ), the general contractor on the University of Washington-Capitol Hill tunneling project ( U- 220 ). We determined that Title VI of the Civil Rights Act of 1964, Executive Order 11246, and our Full Funding Grant Agreement with the Federal Transit Administration required us to investigate the complaints to ensure the Agency s continued compliance with equal employment opportunity laws and our grant agreement. While this memorandum is intended to serve as a high level summary, it also serves as a transmittal of the following more detailed documents: April 13, 2012 draft investigative report TFK response/rebuttal dated June 29, 2012 Investigator s Reply to TFK dated July 19, 2012 Staff recommended draft action plan After hearing comments from three citizens during the public comment portion of the June 28 th Board meeting, Acting Chair Julia Patterson asked staff to provide the Board with a summary of the investigation and to recommend an action plan to address the issues identified by the investigation. For a variety of reasons, this has been a lengthy and complex investigation, which has frustrated the impacted workers and stakeholders. This is understandable. However, I am now more confident that we have a solid understanding of the many issues, and am now able to recommend a plan of action that both addresses the current issues and also ensures we make changes necessary to be able to know sooner, and to act faster, if and when issues arise in future contracts. Over the past 18 months, staff held multiple meetings with TFK, local labor unions, and community organizations such as the NAACP and the Fast Jobs Coalition to understand and address actual or perceived problems in the employment of African-Americans, women, and apprentices at the jobsite. During this time, Sound Transit became aware of 13 complaints of employment discrimination raised by African-Americans ( AA ) or women on a jobsite that averaged 185 workers. 1

2 Because Sound Transit s contract with TFK is funded in part by a grant from the Federal Transit Administration, the contract is subject to Title VI of the Civil Right Act of 1964, 42 U.S.C. 2000d et seq., Executive Order 11246, and the Full Funding Grant Agreement. In compliance with Title VI, Ex. Or , the FFGA, and local law, Sound Transit s contract with TFK prohibits TFK from discriminating against any employee on the basis of race, color, gender, national origin, or other protected category. To ensure that Sound Transit enforces the nondiscrimination clause in TFK s contract, the FTA is directed to withhold grant funding from Sound Transit if it permits TFK to engage in employment discrimination. 42 U.S.C. 2000d-1. In order to comply with its legal obligations, Sound Transit began its investigation of eight individual discrimination complaints against TFK in September Sound Transit also investigated TFK s general employment practices in response to community concerns raised by the NAACP and the Fast Jobs Coalition that African-American workers were not hired or quickly terminated by TFK. We engaged Marcella Fleming Reed ( MFR ) as outside legal counsel, and Dr. Nayak Pollisar, a statistician, to assist with the investigation. During the investigation, a number of witnesses stated that TFK applied a different standard of treatment to African-American employees, including harsher punishments for African Americans and instances of favoritism toward Caucasian workers. Witnesses also noted that TFK mangers described African-American workers with stereotypic comments. Based on specific evidence regarding TFK s hiring, treatment, and termination of the individual workers, MFR concluded that (1) discrimination was the only credible explanation for the termination of two African-American workers, one of whom was assigned to a work crew in which all five African Americans were either terminated or transferred, and (2) discrimination may have been a factor in TFK s decision not to hire two workers and the decision to terminate four workers. Although evidence exists to support the discrimination claims of these six workers, definitive conclusions s could not be made because of the conflicting testimony and because of TFK s failure to maintain contemporaneous records of its treatment of similarly-situated Caucasian workers. MFR reached these conclusions after weighing the credibility of the witnesses and reviewing the documents provided by TFK to explain its decisions. In her report, MFR also concludes that the subjective hiring/termination decisions made by TFK had a disparate impact on African-American laborers that was highly correlated to race. Dr. Pollisar s statistical analysis, which did not take into account the qualifications of individuals because that information is not available, found a statistically significant difference between the hiring/termination rates of African-American and Caucasian laborers. African-Americans had a three-fold risk of not being hired or of being terminated when compared to Caucasians. A comparison of the work experience of workers at the TFK jobsite and the similar Capitol Hill tunnel jobsite operated by another contractor, illustrates the less favorable 2

3 employment outcomes experienced by African-American workers at the TFK jobsite. The following chart illustrates the differences between the projects: (1) African-American workers were significantly more likely not to be hired or to be terminated than Caucasian workers at the TFK site, and (2) the hiring/termination rates at the Capitol Hill site were substantially similar for Caucasian and African-American workers, and much better than at the TFK site. Percentage of workers still employed at various work durations of work s, by location and ethnicity. AA = African American, C = Caucasian. Group Number of p rso dispat d At 200 Both Dr. Pollisar and TFK s statistician, ECONorthwest, essentially agree that TFK s hiring/termination decisions had a disparate impact on African-American workers. They also agree that the data alone does not prove that TFK discriminated against African- American workers. Both statisticians noted that additional information about the differences in qualifications of the worker is needed to conclude that race was reason for the differing hiring and termination rates. MFR also investigated allegations of gender discrimination. MFR concluded that TFK discriminated against women by denying them job opportunities. TFK apparently had a policy of not allowing women not to work in the tunnel. TFK s management explained that it did not assign women to work in the tunnel because the tunnel was not the right environment for women. (TFK assigned a woman to work in the tunnel this spring after Sound Transit directed it to do so.) The electrical workers union engaged in a significant dispute with TFK regarding its treatment of a woman electrician. At one point, the union refused to dispatch electricians to the TFK jobsite because of concerns related to gender discrimination and harassment. The electrical workers union prevailed in a dispute with TFK over this issue. TFK vigorously disputes the facts and conclusions contained in MFR s draft investigative report. MFR s persuasively addresses the issues raised by TFK in her reply report. During the course the investigation, Sound Transit became aware of two actions that may have contributed to the perception that African-American workers were treated unfairly. First, Laborers Union Local 440 and TFK agreed to allow up to 24 out-of-state workers ( Travelers ) to work on the project. Under this agreement, Travelers comprised more than one-quarter of the laborers employed by TFK. The agreement was apparently implemented 3 At 600 At 1200 At 2400 pitol l AA pitol l UW % 36.7% 36.7% 36.7% UW

4 without informing the African-American union members or Sound Transit as required by Article 1 of the PLA. The hiring of Travelers combined with the low hiring and high termination rates for African-American workers created the perception that TFK was eager to replace African-American workers with Travelers. In addition, the agreement to use 24 Travelers may well be invalid under the terms of the PLA, which obligates TFK to seek workers through the Fast Jobs Coalition before hiring Travelers. We will raise this issue the TFK and the Laborers Union to determine whether the agreement violated the PLA, and if so, to define the appropriate remedy. Second, a letter from TFK to Laborers Union Local 440 states that union officials apparently requested that TFK not provide detailed written explanations to the Union, Sound Transit and the Fast Jobs Coalition explaining why dispatched laborers were not hired. This request was inconsistent with Article 12.2 of the PLA, which requires the contractor to provide a written explanation when it does not hire a dispatched worker. The failure to explain to African-American workers why they were not hired when they were entitled to an explanation under the PLA, reasonably caused the workers and Fast Jobs to question the integrity of the hiring process and to suspect TFK s motives. This suspicion was heightened when African-American workers experienced what they believed to be disrespectful and demeaning treatment during the job interview and while on the job. Beyond the statistics are the very real people impacted by the course of events. In our recent meetings with some of the impacted workers and with the Fast Jobs Coalition, it is hard to miss that we have a number of our citizens that described the TFK worksite as a hostile workplace, especially for African Americans; a place where they report being humiliated, spoken to disrespectfully, and subjected to seemingly inexcusable instances of poor treatment such as being summarily terminated without warning or explanation. Regardless of qualifications and even performance, respect and dignity on any work site is expected and deserved. Equal opportunity, diversity, and respect are all core principles of Sound Transit per Board policy and our organizational values. Our web-site contains the following statement: We are an Equal Opportunity Employer that values workplace diversity. We seek to create an environment and culture that embraces the differences of our employees. You will find an exceptionally diverse group of people at Sound Transit with regard to culture, beliefs, communication styles, and life and work experiences. This statement reflects our fundamental commitment to a workplace that values and respects diversity. We expect no less from our contractors. In this case, unfortunately, we do not believe that TFK met this standard. 4

5 This memorandum summarizes a complex and troubling story. We know that African- American workers did not fare well at the TFK jobsite. And we know that the belief that TFK discriminated against African-American workers resulted from many factors, including personal interactions with TFK mangers, and the agreement by TFK and the Laborers Union regarding how to dispatch, hire, and terminate local workers and Travelers. Having said that, as stewards of the public's resources used to pay TFK, Sound Transit is obligated to ensure that TFK does not unlawfully discriminate against any person working on the project. We will work tirelessly with TFK, the labor unions, and our community stakeholders to fulfill that obligation. Attached to this memorandum is a draft action plan developed by our leadership team for the Board's review and information. Representatives from the Legal Department, Design, Engineering and Construction (DECM), the Diversity Programs Office and the CEO developed the draft action plan. We look forward to your questions, clarifications and any further direction. 5