Wednesday, May 18, 2022

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E. Federal Government Policy Has Fostered Pervasive Racial Discrimination In The Construction Industry.

The federal government has perpetuated a highly racially stratified construction industry by protecting segregated trade unions and, in effect, barring blacks from obtaining positions as skilled craft laborers and ultimately positioning themselves to advance in the industry. In the early and mid-twentieth century, black migrants from the South were excluded from all but the *21 most menial construction jobs in the North despite their extensive experience in carpentry and masonry. When blacks began to make inroads in construction, Congress intervened to protect white union members against wage competition from black workers by enacting the Davis-Bacon Act. In the hearings that preceded passage of the Act, advocates for the legislation made repeated racial statements regarding southern workers brought north to work on federal projects. In 1935, Congress acquiesced in and effectively sanctioned the racially exclusionary practices of labor unions when it rejected efforts to include anti-discrimination provisions in the National Labor Relations Act. During the 1970s, federal officials “choreographed resistance to the desegregation of the construction industry.” As a result, racially discriminatory practices in construction are more “impregnably secure” than in perhaps any other institution in the United States.

Such discrimination has impeded the entry of African Americans into the construction industry, either as employees or as self-employed business owners. Blacks are “persistently more under-represented among the ranks of self-employed persons in construction than they have been in traditionally discriminatory skilled crafts.” And this remains the case *22 despite two decades of affirmative action efforts in government contracting.

These barriers are more than just those experienced by all newcomers to an industry, but rather are distinctly racial in character. In the late nineteenth and early twentieth century, “trade unions frequently were the instrument that forced black workers out of jobs they had traditionally held by replacing them with immigrant white workers after union organization.” The unions opposed inclusion of anti-discrimination measures in the National Labor Relations Act. In 1969, white workers held raucous demonstrations to oppose desegregation efforts affecting building trades. Resistance to desegregation continued through the middle and late twentieth century.

For example, black enrollment in apprenticeship programs in Detroit declined between 1957 and 1966, with only 41 blacks enrolled as apprentices out of a total of 2,363, or 1.7% of the total. Detroit's patterns were similar to those existing elsewhere. In New York City, the construction business *23 experienced a boom in the 1980s such that “the value of construction contracts doubled in real terms between 1976 and 1987, which in turn doubled the size of the local construction labor force.” However, this building boom “left black workers out in the cold.” During this period, black employment in construction declined almost 15 percent. By the close of the 1980s, black underrepresentation in the industry and its skilled trades was worse than it had been in 1970. Similar patterns existed in other major U.S. cities.

Federal anti-discrimination laws have been ineffective in dealing with the pervasive discrimination in the construction industry. Many unions in the building trades successfully evaded laws barring employment discrimination despite decades of litigation. The informality of the construction industry's personnel practices facilitates racial discrimination by “not only creat[ing] natural barriers to outsider groups,” but also by “thwart[ing] public policies designed to counter discrimination.” Because the construction industry tends to be *24 dominated by small firms that rely on social networks for hiring, enforcement against race discrimination tends to be more difficult and less effective. Deep resistance to desegregation within the construction industry strongly demonstrates that only race-conscious relief can remedy the racial discrimination in the industry.

 

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

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