We Built This City: The Legality Of Community Benefit Agreements For Big Box Construction Under Title VII And The Equal Protection Clause

Abstract

Community groups have begun to employ Community Benefit Agreements (CBAs) to combat the legacy of discrimination and segregation in the construction industry. The U.S. Government as well as state and city governments have implemented various plans since the 1960s to try to eradicate discrimination and segregation with a varied pattern of success. In light of the Supreme Court’s decisions in Adarand v. Pena and City of Richmond v. J.A. Croson, it is nearly impossible for a governmental entity to impose a hiring quota or percentage for minority groups. Therefore, without state intervention, the best way for communities to secure adequate opportunities may be to negotiate with the developers directly. This is where CBAs come in. CBAs, however, can take a couple of forms: private-private between private community groups and private developers or private-public between a private developer and some state actor. CBAs in each category may also have either geography-based hiring criteria, or race-based. This Note examines seven CBAs that fit under these different categories and measures them against the Supreme Court’s Title VII and Equal Protection jurisprudence. This Note ultimately seeks to suggest strategies for making CBAs successful against possible legal challenges.