Black (enough?) Letter Law: What’s the Threshold to Qualify for Minority Race Status?

By Averie Armstead

Member, American Journal of Trial Advocacy

Ralph Taylor is a 55-year-old who has lived majority of his life as a white man.[1] In 2010, the Lynnwood, Washington citizen took a home DNA test, and now Taylor identifies as multiracial.[2] The DNA test “estimated he was 90 percent Caucasian, 6 percent indigenous American and 4 percent Sub-Saharan African.”[3] After receiving the results, Taylor applied for state certification so his company, Orion Insurance Group, would be considered a minority-owned business.[4] The Washington Office of Minority & Women’s Business Enterprises (OMWBE) approved Taylor’s application because there was no criteria to define a threshold to qualify for minority race or ethnicity.[5] However, Taylor’s Federal Disadvantaged Business Enterprise (DBE) application was denied for failure to provide sufficient evidence that he was a member of a recognized racial minority group.[6] Taylor filed suit in the United States District Court of the Western District of Washington.[7]

The Lawsuit:

Orion Ins. Grp., et al. v. Wash. State Office of Minority & Women’s Bus. Enter., et al.

            OMWBE, established more than twenty years ago, was created to ensure equality among minority business owners seeking transportation contracts in Washington.[8] Applications are approved on a case-by-case basis.[9] The goal of the program is that no less than ten percent of authorized federal funds are expended through “small business concerns that are owned and controlled by socially and economically disadvantaged individuals.”[10] On May 16, 2014, OMWBE notified Taylor that it was questioning his membership of the Black or Native American groups.[11] Taylor stated that he identified himself as Black American and Native American, however Taylor acknowledged that he did not have any documentation regarding his membership in either respective group.[12]

In reevaluating Taylor’s application, OMWBE found that (1) Taylor’s birth certificate did not indicate race, failing to prove membership of a minority race group; (2) Taylor provided an African American woman’s death certificate – claiming her to be an ancestor – but failed to prove any relationship to the woman; (3) Taylor’s DNA test, indicating he is 6% Native American and 4% Sub-Saharan African failed to prove membership of a minority group; (4) Ancestry by DNA has a 3.3% “statistical noise” associated with each test, meaning Taylor’s ancestry would more accurately be 2.7% Native American and 0.7% Sub-Saharan African, and the test results were insufficient to prove minority group membership; (5) Taylor’s two submitted letters, where the authors stated they considered Taylor to be of mixed heritage, failed to identify Taylor as Black or Native American; and (6) Taylor’s NAACP membership, Ebony magazine subscription, and interest in “Black social issues” failed to prove membership of a minority race group.[13]

Due to the aforementioned reasons, in conjunction with the fact that Orion’s gross receipts for 2013 were $1,083,204,[14] OMWBE denied Taylor’s DBE application, noting that Taylor failed to prove he was socially and economically disadvantaged on the basis of race.[15] Furthermore, OMWBE found that even if Taylor was a member of either racial group, “the presumption of disadvantage has been rebutted.”[16] In September 2014, Taylor appealed the decision to the U.S. Department of Transportation (USDOT).[17] USDOT affirmed OMWBE’s denial of Taylor’s DBE application, concluding OMWBE’s decision was supported by substantial evidence in the administrative record.[18]

On July 1, 2016, Taylor filed suit, asserting claims for:  

(A) Violation of the Administrative Procedures Act, 5 U.S.C. § 706, (B) “Discrimination under 42 U.S.C. § 1983” (referenc[ing] Equal Protection), (C) “Discrimination under 42 U.S.C. § 2000d,” (D) violation of Equal Protection under the United States Constitution, (E) violation of the Washington Law Against Discrimination and Article 1, Sec. 12 of the Washington State Constitution, and (F) assert that the definitions in 49 C.F.R. § 26.5 are void for vagueness.[19]

Taylor sought damages and injunctive relief, seeking a declaration of definitions Black American and Native American.[20] The court, however, found that Taylor’s claims failed and OMWBE did not act arbitrarily or capriciously in denying his application.[21]

            The court addressed Taylor’s claim that he was denied because he was not “Black enough.”[22] Stating that Taylor disproportionally emphasized is genotype rather than his phenotype, the court defined phenotype as “all the observable characteristics of an organism, such as shape, size, color, and behavior, that result from the interaction of the organism’s genotype with its environment.”[23] Furthermore, Taylor did not provide any evidence that discrimination regarding federal dollars was due to his genotype as opposed to his phenotype, as well-documented by Congress.[24] Thus, the court found that Taylor’s reliance on his genotype was misplaced.[25]

Scientific Support?

            Interestingly enough, the fine print of direct-to-customer DNA testing says that results should only be used as a hobby.[26] At best, the results are an estimate; at worst, results are inaccurate.[27] Experts say that there is little scientific support behind genetic ancestry DNA results regarding ethnicity.[28] In fact, a CBC News investigation found that several DNA tests were suspicious.[29] One result claimed a sample had 20 percent Native American ancestry; the problem was the sample came from a dog, not a human.[30]

Therefore, one should question the science behind at home DNA tests altogether. Companies pride themselves in their advertising promising to uncover ethnic ancestry.[31] This million-dollar industry compares submitted DNA samples to a worldwide collection of already collected samples; however, companies do not tell the public whether they have 1,000 or 10,000 samples.[32] This poses the question, is Taylor’s “genetic ancestry” even plausible?

Moving Forward

            Taylor has appealed his case to the Ninth Circuit.[33] If Taylor wins, this case could redefine how race is determined, defined, and established for purposes of disenfranchisement initiatives.[34] So far, Taylor has spent up to $300,000 in legal costs to fix what he calls a “subjective and broken system.”[35] The Ninth Circuit Court of Appeals will hear oral arguments on Monday, December 3, 2018.

[1] Christine Willmsen, Lynnwood man tried to use a home DNA test to qualify as a minority business owner. He was denied – now he’s suing., Seattle Times (last updated Sept. 17, 2018 10:13 a.m.),

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Orion Ins. Grp., et al. v. Wash. State Office of Minority & Women’s Bus. Enter., et al., No. 16-5582 RJB, 2017 WL 3387344, at *3 (W.D. Wash. Aug. 7, 2017).

[7] Id. at *1.

[8] Willmsen, supra note 1.  

[9] Id.

[10] Orion Ins. Grp., 2017 WL 3387344 at *1.

[11] Id. at *3.

[12] Id.

[13] Id. at *8.

[14] Id. at *2.

[15] Id. at *3.

[16] Orion Ins. Grp., 2017 WL 3387344 at *3.  

[17] Id.

[18] Id. at *4.

[19] Id.

[20] Id.

[21] Id. at *8 (“The OMWBE did not act in an arbitrary or capricious manner when it found that there was insufficient evidence that Mr. Taylor was a member of either the Black or Native American groups.”).

[22] Orion Ins. Grp., 2017 WL 3387344 at *9.

[23] Id. (citing In re Roslin Inst. (Edinburgh) 750 F.3d 1333, 1338 (Fed. Cir. 2014)).

[24] Orion Ins. Grp., 2017 WL 3387344 at *9.

[25] Id.

[26] Willmsen, supra note 1.

[27] Id.

[28] Id.

[29] Id.

[30] Id.

[31] Id.

[32] Willmsen, supra note 1.

[33] Id.

[34] Id.

[35] Id.

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