The City Council, after considering evidence presented to the Budget Committee, including evidence presented at trial in Builders Association of Greater Chicago v. City of Chicago, Number 96 C 1122 (N.D. Ill.), during May and June 2003 (the "B.A.G.C. Trial"); statistical evidence, not available during the B.A.G.C. Trial, of continuing discrimination against Blacks, Hispanics and women in the Chicago construction marketplace; the report of the Mayoral Task Force on M.B.E./W.B.E. as well as additional anecdotal evidence of discrimination against minorities and women in the Chicago construction marketplace; and the testimony of experts and anecdotal witnesses; and receiving and considering written reports and submissions, adopts the following findings as a strong basis in evidence supporting a narrowly tailored, remedial affirmative action program in the City's construction contracting:
(a) the City seeks to provide a level playing field and equal access for all contractors and subcontractors to participate in the City's contracting opportunities;
(b) the City has a significant impact upon the area economy through its contracting functions;
(c) prior to the adoption of Executive Order 85-2, the City's contracting often operated as a closed shop, such that minorities and women received fewer than the number of the City's contracts and subcontracts and contract and subcontract awards than would have been expected absent discrimination;
(d) City departments reduced the disparities between the availability of minority and women firms and their utilization by implementing Executive Order 85-2;
(e) the City engaged in a substantial good faith legislative effort in 1990, involving 18 days of hearings and debate, which identified strong historical, statistical, scholarly and anecdotal evidence of past and present discriminatory practices in the Chicago-area market, including but not limited to construction, which placed minorities and women in a position of social and economic disadvantage and imposed discriminatory barriers to the entry and continued viability of minorities and women in the Chicago market and to their participation on the City's contracts;
(f) based on the strong evidence presented during the hearings, the City Council on July 31, 1990, enacted an affirmative action ordinance designed to remedy discrimination in the City's contracting against minorities and women;
(h) strong evidence was introduced at the B.A.G.C. Trial that past and current discriminatory practices continue to place racial and ethnic minorities and women in a position of social and economic disadvantage, limiting opportunities for them to form and control construction businesses, as well as reducing the level and availability of employment opportunities for minorities and women in the trade unions which serve the Chicago construction marketplace;
(i) strong evidence was introduced at the B.A.G.C. Trial that such current and past discriminatory practices, and the continuing effects of such discrimination, have impeded the growth and success of the businesses which minorities and women do form, as well as the level and availability of the employment opportunities in the construction trade unions;
(j) the evidence at the B.A.G.C. Trial demonstrated that these discriminatory practices include direct and indirect racial, ethnic and gender slurs and harassment; discrimination by lending institutions and other sources of capital; reduced opportunities for minority and women subcontractors to bid or quote to majority prime contractors; exclusion from and discriminatory treatment by the construction trade unions; exclusion from business and professional networks critical to entrepreneurial success; and discrimination by surety bonding companies, insurance companies and other entities integral to the contracting marketplace;
(k) following the B.A.G.C. Trial, Judge James B. Moran held that the City has a compelling interest in implementing a remedial race- and gender-conscious affirmative action program in the Chicago construction market, but that the City's 1990 ordinance is insufficiently narrowly tailored in 2003 as applied to construction contracts;
(l) there is ample availability of ready, willing and able minority- and women-owned firms to participate in City and private sector construction contracting and subcontracting opportunities;
(m) minority- and women-owned firms receive little or no work on private sector construction projects, despite their capacity, desire and efforts to participate on such projects;
(n) minority and women workers' participation in the relevant construction marketplace declined from 1980 to 1990;
(o) other jurisdictions, including Cook County, Illinois, have experienced drastic reductions in minority and women business participation, to less than their availability, after race- and gender-conscious remedial measures were terminated;
(p) while the City has made substantial progress in its efforts to ameliorate discrimination in its own construction contracting practices, private companies that contract on public projects continue to discriminate against minorities and women, and as a result of this discrimination, the City has been in the past a passive participant in a system of discrimination against minorities and women in the Chicago construction marketplace, and, in the absence of programs to eliminate such discrimination, would continue to be a passive participant in such a system;
(q) the City has a compelling interest in preventing its tax dollars from perpetuating a market so flawed by past discrimination that it restricts existing minority- and women-owned businesses from unfettered competition in the Chicago construction market;
(r) the City has a compelling interest in not having its construction projects return to near monopoly domination by white male firms, as was the case prior to Executive Order 85-2 and the City's current affirmative action program in procurement;
(s) although the City has undertaken since 1990 a variety of race- and gender-neutral measures such as technical assistance and small business loan programs, such programs have not been sufficient to ameliorate the effects of racial and gender discrimination in the construction marketplace;
(t) evidence at the B.A.G.C. Trial demonstrated that flexible race- and gender-conscious remedial measures do not overly burden construction firms owned by majority males;
(u) the remedies adopted herein will be periodically reviewed to ensure that the City continues to have a compelling interest in remedying discrimination in the Chicago construction market and that the measures remain narrowly tailored to accomplish that objective; and
(v) following a comprehensive review of the relevant data conducted in 2009, the City determined to extend this article to December of 2015 and make other changes to this article, and following a subsequent comprehensive review of the relevant data conducted in 2015, the City determined to further extend this article to December 31, 2020. Due to the coronavirus pandemic and to allow for completion of the comprehensive review of the relevant data, the City determined to temporarily extend this article to September 30, 2021, and in 2021, following a comprehensive review of the relevant data, the City determined to extend this article to December 31, 2027 and make other changes to this article.
(Added Coun. J. 5-26-04, p. 24585, § 3; Amend Coun. J. 7-29-09, p. 67484, § 1; Amend Coun. J. 12-9-15, p. 15382, § 1; Amend Coun. J. 2-10-16, p. 18343, § 1; Amend Coun. J. 9-14-21, p. 35424, § 1)