Updated: Oct 9
I’ve been increasingly public about my concerns regarding how DEI efforts are often implemented in counterproductive ways. While I believe many efforts are struggling because they are engaging in the very types of monolithic grouping and labeling they claim to want to eliminate, they are trying to address continuing issues regarding discrimination, privilege, bias, perception, equality, equity, and more. That said, selfishness, bias, and abuse of privilege were on full display in a court case recently decided in favor of the plaintiff. That case was, in large part, based on the recent Supreme Court College Admissions decision and in furtherance of what will likely be more cases to come.
The plaintiff is a White/Caucasian female business owner who pursues government contracts as part of her business strategy. Her father owned his own established government contracting company in the Maryland/Washington D.C. area. She sued to have the presumption of social disadvantage in the SBA 8(a) Disadvantaged Businesses Government Contracting Program overturned. She never applied to the program, though she applied for and obtained federal government contracts through the Woman-Owned Small Business (WOSB) Government Contracting Program. In an article published by the Washington Post, she stated she didn’t apply to 8(a) because she didn't want to go through the process of explaining how she was disadvantaged when others didn’t have to because of their race. https://www.washingtonpost.com/business/2023/09/07/sba-8(a)-program-ruling-affirmative-action/
Federal contracting set-aside programs aim to ensure that the goal of five percent (yes, 5%) of the $1.69 Billion in federal government contracting monies spent annually goes to businesses trying to break into the arena. That minimum benchmark is often a challenge. The 8(a) program was designed to give eligible small business owners who were disadvantaged in competing for government contracts a temporary “entryway” into the federal government contracting arena. The program was created so that historically “disadvantaged” groups and others who can substantiate they were disadvantaged can apply for the temporary certification to be awarded smaller government contracts without competing.
In addition to the federal 8(a) program, other programs include the Woman-Owned Small Business (WOSB) and Economically Disadvantaged Woman-Owned Small Business (EDWOSB), Veteran-Owned Business (VOSB), Service-Disabled Veteran-Owned Small Business (SDVOSB), and Historically Underutilized Business (HUB) Zone certifications. Additional certifications are available through third-party certification entities for minorities, women, and more. State, Regional, municipal, and even industry-specific certifications exist for small businesses seeking to enter the contracting arena with these entities. All were designed to help small business owners trying to break into the contracting arena and get the experience needed to compete with those who are already "in."
The 8(a) program strives to create a more equitable foundation for the participants to complete. It helps them gain experience and build the reputation needed to pursue larger opportunities without additional help, and graduate early if they reach the program’s contract revenue goals ahead of schedule. This “jump start” designation lasts only nine years maximum. Everyone in the program cannot exceed certain business revenues or assets, including personal assets. While some racial groups are considered “automatic” because they are considered socially disadvantaged, disability, sexual orientation, and gender are also eligible for 8(a) certification; however, they must submit an explanation and supporting information to substantiate their eligibility.
Social disadvantage is defined as racial prejudice — or cultural bias — within American society stemming from circumstances beyond an individual’s control, and people of certain races and ethnicities were automatically presumed to be socially disadvantaged. Of the 4,800 businesses in the program, 800 were admitted for reasons other than race (almost one-fifth), and some of them also qualify and participate in other programs for which they are eligible. According to a February 13, 2023, article on www.Highergov.com, of the $159 Billion in federal government contracts awarded to small businesses in fiscal year 2022, only $21.1 Million went to 8(a) certified businesses. It is more frustrating when you look at the overall distribution of government contracts in general by numbers and percentage comparisons: https://www.highergov.com/reports/small-business-trends-2022/. It is also why improving representation in government contracting has been a goal of varied importance for presidents from both parties for more than two decades.
Even though race is a permanent characteristic, 8(a) certification is only temporary because it presumes the businesses overcome the disadvantage their race might have caused by participating in the program. Unlike the 8(a) Certification, the Women-Owned Small Business (WOSB) and Economically-Disadvantaged WOSB set-aside program, VOSB, and Service-Disabled VOSB certifications are renewable if the participants comply with recertification requirements. Historically Underutilized Business (HUB) Zone certifications are only available if the area from which the business owners hire and/or where they operate are re-designated after each Census deems them eligible. In other words, if a designated community improves, the designation can be taken away.
When the social disadvantage assumptions worked in HER favor, the plaintiff had absolutely no problem applying for the WOSB program based solely on her gender presumption, and she has been awarded $3.8 million as of September 2023. It is unclear if she is eligible for the Economically Disadvantaged WOSB. Still, her ability to obtain multiple loans from her father, one for $500,000, could indicate she is not without resources and access, even though she was denied bank financing for her business multiple times. Yet, she had no issue challenging a presumed disadvantage when it did not benefit HER. She might have been eligible for the program had she chosen to apply. Rather than try, she filed a lawsuit.
When the plaintiff was questioned why she challenged one program she never even applied for while taking advantage of the other program, she is quoted in the article as saying, “Because I don’t set the rules, and I need to play.” Her actions have now put ALL set-aside programs at risk, including the program she benefited from! As this country is now poised, as a result, to take another step backward in efforts to create equitable opportunities for all in this arena and more, I can’t help but be curious about whether she fully understood the ramifications of what was at risk. Or if she was aware but didn’t care, as her quote seems to imply.
When a person has a head start in life in terms of resources, education, body size, being a majority race or ethnicity, religion, gender, sexual identity, language or accent, geography, and so much more, and when that person is willing to take advantage of opportunities that work for them but challenge the ones that don’t as being unfair; and when that person cares only about what they can get regardless of what they have and despite how their actions hurt others in the process – they exemplify privilege, bias, and selfishness.
If you disagree or agree, tell me why in our social media comments section. If you want to understand better how to address these types of behaviors and other challenges you encounter as a leader or with leadership, civility, inclusion, equity, or diversity in the workplace and life, book an introductory appointment with us at https://calendly.com/barbaraanne-purposefilledsande/coaching-and-consulting-discovery-session.