June 14, 2011 (Updated February 7, 2013)
In July of 2010 Governor Paterson signed a series of bills into law to amend Article 15-A of the Executive Law which related to minority and women-owned business enterprise development and procurement. These new laws took effect in October of 2010 and were designed to increase opportunities for Minority and Women-owned Business Enterprises (MWBEs) in New York State to impact their ability to conduct business with State agencies in various aspects of their contracting. The rationale for the measure was based on a disparity study conducted in 2010 that found “statistical and anecdotal evidence” of significant racial and gender discrimination. The study was required based on amendments made to Article 15-A during the Pataki Administration. It was recommended that the State take “constitutionally compliant” action.
I am not aware of the progress of these new laws. I certainly hope that they end up having the desired impact. I am writing this opinion piece today to point out some of the law’s unintended consequences.
First some background. I am a person with a disability who in my work with the Independent Living network looks to address the significant and wide-ranging needs of people with disabilities. We are a significant minority, representing approximately 20% of the total population. Based on U.S. Census Bureau 2009 estimates, this would translate into 61.4 million Americans or 3.9 million New Yorkers. Why is it, then, are we constantly excluded from the table and often an afterthought? People with disabilities are all ages, races, cultures, and genders – can be on fixed incomes or wealthy, and are tax-paying citizens. As a group, we also experience one of the highest levels of unemployment in the country. For example, people with disabilities constitute 20.6% of the State’s population with national unemployment rate of 15.6% versus 8.9% for persons without a disability (March 2011). The situation is magnified when you consider that the percentage of people with disabilities in the labor force was only 21% versus 69.7% for persons without a disability (March 2011). NYSILC conducted a statewide needs assessment in 2012. Based on U.S. Census data, the employment rate of all New Yorkers with disabilities (ages 18-64) was 31.3%, compared to 72% for New Yorkers without a disability, creating a gap of 40.7%! In addition, the poverty rate of New Yorkers with disabilities in the same age group was 30.2% – about two and a half times higher than the poverty rate of New Yorkers without a disability (ages 18-64). If New Yorkers with a disability were a country, their rate would rank them 58th in the list of impovershed countires right behind Botswana! Given these facts, it is obvious that people with disabilities need employment opportunities too. Since some people with disabilities have to address access issues, they might pursue self-employment as an option, which provides more flexibility over work scheduling and promotes the use of technology and telecommuting. However, this would not exclude individuals from seeking inclusive employment in a more traditional and accessible work environment.
Second, our network is funded through the NYS Education Department. The SED commitment calls for 12% to be provided to minority-owned businesses and 8% of contracted services to be provided to women-owned businesses. What are the unintended consequences? Some newly issued RFPs that have the combined 20% MWBE requirement are getting no response. The RFP is seen as being too difficult to manage, especially those with limited funds. Was this really the intent of the legislation – to take 20% of small State contracts to the point of rendering them ineffective? Net effect – nobody wins. When the 20% combined requirement gets implemented in the next Statewide Plan for Independent Living (SPIL) cycle of RFPs, it will result in people with disabilities losing their jobs in order to provide business for certified MWBEs which may not even be conducive, consistent, or relevant to providing services to the target population. It will end up adding to the already high unemployment rate for people with disabilities. Since disability can impact anyone, and we are mandated to be peer driven and consumer-directed, we hire qualified individuals with disabilities. This includes qualified minorities and women with disabilities who could potential lose their job in the process. Can somebody please tell how any of this makes sense? Think this is just hypothetical? Since I have a contract, in preparation of the next cycle, one person with a disability has already lost their job due to a restructuring and a few of our consultants, some having disabilities, stand to lose our business.
Third, how were individuals with disabilities excluded from the MWBE opportunity? It is hard to say. I suppose the people involved in the process were just representing their primary interests. This includes the Governor at the time, David Paterson, who probably identified more as a person of color than as a person with a disability. He knew the value of the legislation, but like many…oops…just forgot about those disabled people. Here’s my solution, the afterthought that we often have to deal with. Amend Article 15-A to expand the definition of “minority” to include a new section 8 (e) for businesses run by “people with disabilities” consistent with the definition in Human Rights Law Article 15, Section 292 (21). This is at least a proactive response to rectify a contractual situation that while it is assisting some groups, has excluded a rather large minority group that is struggling with “mind-bending” statistics and realities that government just doesn’t seem too motivated to do something about.