In his first two adopted budgets, Milwaukee County Executive David Crowley set aside more than $5.3 million for “salary adjustments related to race and gender equity” designed to “address disparities in pay by race and gender” in what amounts to massive violations of both Title VII of the Civil Rights Act of 1964 and the 14th Amendment to the U.S. Constitution.
His 2021 Adopted Budget even stated as its guiding principle the removal of “white, straight men” from “positions of power”—a shocking admission of unlawful intent to discriminate based on race, gender, and sexuality.
“Regardless of Milwaukee County’s challenging fiscal situation, this budget still manages to focus on achieving racial equity and put into action the three focus areas of our strategic plan,” Crowley proudly proclaimed. The first strategic focus area aims to break the cycle of people in historic positions of power typically fitting the profile of white, straight, men.
“Creating intentional inclusion ensures that decision makers and influencers within Milwaukee County government represent the full diversity of all our residents. This budget addresses pay equity issues, continues racial equity training for all staff, and aims to increase the diversity of our workforce.”
The first strategic focus area aims to break the cycle of people in historic positions of power typically fitting the profile of white, straight, men.
Milwaukee County Executive David Crowley in his 2021 Adopted Budget.
It did so by setting aside money specifically for race- and gender-based “salary adjustments” and indirectly tying mid-year raises to race and gender through an unconstitutional proxy.
Crowley’s set aside $367,000 specifically for race- and gender-based salary adjustments and then instructed Milwaukee County Human Resources Department to analyze county jobs and departments and recommend the “highest priority equity issues” and report proposed race-based salary increases to the Milwaukee County Board.
“$367,000 is included for salary adjustments related to race and gender equity,” the budget plainly stated. “The Department of Human Resources is analyzing all Milwaukee County jobs and departments and will make recommendations on the highest priority equity issues to address.”
The same budget split a mid-year raise by pay grade in a thinly veiled attempt at giving larger raises to non-white, non-male employees. Most non-represented grades with a midpoint under $48.08 an hour, or $100,000 a year, received 1 percent as of June 27, 2021. Grades at or above that line received 0.5 percent. The central appropriation was about $933,000. The county tied the split to a Comptroller audit entitled “Pulling Back the Curtain,” which found white workers overrepresented in the top third of earners and African American workers overrepresented in the bottom third. The budget acknowledged that the smaller increase for higher-paid grades was adopted “with this disparity in mind.”
Traditionally, Milwaukee County has provided an across-the-board pay increase at mid-year for all employees. The 2021 budget provides a new look at pay increases largely based on findings from the County Comptroller’s Audit Division’s report, “Pulling Back the Curtain: A Look at Milwaukee County’s Workforce Through Racial and Gender Equity Lenses from 2009 to 2019.” This report highlighted substantial overrepresentation of white workers in the top third of Millwaukee County earners, and an overrepresentation of African American workers in the bottom third of County earners. With this disparity in mind, the 2021 budget provides a 0.5 percent increase at midyear for workers in salary ranges averaging over $100,000 per year, and a 1 percent increase for workers in salary ranges averaging below $100,000.
The United States Supreme Court has repeatedly held that such proxies for race and gender are still violations of the 14th Amendment’s guarantee of equal protection under the law, especially when the government agency implementing them is so explicit about its unconstitutional intent.
Crowley’s 2022 Adopted Budget included an additional $5 million in race- and gender-based set-asides. In addition to an across-the-board raise two percent pay raise, the budget featured “an annualized investment of $5 million…to address disparities in pay by race and gender.”
This budget includes the largest investment in employee compensation in over five years, with a 2% across-the-board pay increase for employees in April 2022,” the budget provided. “In addition, an annualized investment of $5 million is included to address disparities in pay by race and gender. The greatest disparities within departments will be identified as the Department of Human Resources finalizes its countywide compensation study, with recommendations expected in July 2022.”
Neither budget published a list of who would be paid, but both labeled the funds as a response to race and gender disparities and left the targeting to an HR study and a later release of money.
That design makes them almost certainly unconstitutional. Under the 14th Amendment’s Equal Protection Clause, a racial classification by government must survive strict scrutiny. This means that any government program or appropriation must require a compelling interest that must be solved as well as a solution that is narrowly tailored to that interest.
A line of U.S. Supreme Court cases holds that general societal discrimination or a demographic imbalance in a workforce is not enough to survive a strict scrutiny review of the government program or appropriation at issue. A fund specifically created “to address disparities in pay by race and gender” is precisely the sort of program that those cases treat as an unconstitutional racial classification.
Title VII of the 1964 Civil Rights Act comes to the same conclusion, as the law explicitly makes it “an unlawful employment practice for an employer…to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”
Additionally, the statute makes it unlawful to “to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.”
Pay raises and/or salary adjustments that are explicitly tied to race, as Milwaukee County’s were, are thus illegal under Title VII. It is unclear which specific employees received the $5.367 million in salary adjustments.
