PERMISSIBLE AFFIRMATIVE ACTION

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PERMISSIBLE AFFIRMATIVE ACTION
California Constitution Article 1 Section
31 (a) - (h)
Civil Rights Act of 1964 Title VII

• Ted Edwards, Manager
• Office of Civil Rights
• California State Personnel Board

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The California State Civil Service

• 170 State Departments, Boards Commissions
• Over 4,000 Job Classifications
• 217,000 Employees
• 25,000 New Employees Hired Per Year
• Annual Discrimination Complaints per year
• Filed with their Department 1,000
• Filed with DFEH 300
• Filed with EEOC 200
• Total 1,500
• Total Cost of Discrimination Unknown
• Partial Cost in 2000 36.9 Million

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STATE CIVIL SERVICE(As of March 31, 2002)
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The Starting Point...

• The Civil Rights Act of 1964 permits affirmative
  action. It does not require it.
• States may prohibit affirmative action that
  provides preferential treatment to individuals or
  groups of people.
• California has established a prohibition against
  actions that provide preferences based on race
  and gender in public employment with the passage
  of Proposition 209.

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The Courts View of the Civil Rights Act of 1964

• The object of Congress in the enactment of Title
  VII is plain from the language of the statute.
  It was to achieve equality of employment
  opportunities
• What is required by Congress is the removal of
  artificial, arbitrary, and unnecessary barriers
  to employment when the barriers operate
  invidiously to discriminate on the basis of
  racial or other impermissible classifications.
• Griggs v. Duke Power Co. (1971) as quoted in
• Hi-Voltage Wire Works, Inc. v. City of San
  Jose (2000)
• California Supreme Court

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30th Anniversary of the Equal Opportunity Act of
1972

• Extended the protections of the Civil Rights Act
  of 1964 to public employees.

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What is Equal Employment Opportunity?

• It is both a statement of policy
• and a goal
• requiring action to achieve.

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A Definition of Equal Employment Opportunity

• Proposed New Statutory Definition for the
  Government Code S.B. 1161 - Introduced by
  Senator Polanco
• Equal Employment Opportunity means providing
  equal access to state jobs, work assignments,
  training and other employment related
  opportunities for all job applicants and
  employees regardless of race, ethnicity, color,
  ancestry, national origin, gender, marital
  status, age, religion, political affiliation,
  sexual orientation, medical condition, or mental
  or physical disability by making employment
  decisions solely on the basis of job-related
  criteria.

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Proposition 209 added ...

• Article 1, Section 31(a) to the
• California Constitution
• The state shall not discriminate against, or
  grant preferential treatment to, any individual
  or group on the basis of race, sex, color,
  ethnicity, or national origin in the operation of
  public employment, public education or public
  contracting.

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What is Affirmative Action?

• Past Affirmative Action means taking action
  to achieve equal employment opportunity and to
  correct the present effects of past or present
  employment discrimination.
• Current Affirmative Action means taking
  proactive, non-preferential steps to achieve
  equal employment opportunity and
  non-discriminatory employment practices.

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Affirmative Action is not Prohibited!

• Proposition 209 allows any program that does not
  discriminate, or prefer because of race or sex to
  continue. Affirmative action programs that dont
  discriminate or grant preferential treatment will
  be unchanged.
• California Supreme
  Court
• Hi-Voltage Wire
  Works v. City of San Jose

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Exceptions to Proposition 209

• Some preferential Affirmative Action is
  permissible
• Section 31(c) - Bona fide qualifications based on
  gender necessary for the job.
• Section 31(d) - Court ordered or consent decreed
  preferential actions.
• Section 31(e) - Actions taken that are required
  by federal agencies to obtain or maintain federal
  funding.

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What are an Employers Legal Obligations?

• Implicit in the requirements of Title VII of the
  Civil Rights Act of 1964 and the California
  Constitution is the obligation of employers to
• Prevent employment discrimination from occurring.
• Disparate Treatment (Intentional)
• Disparate Impact (Unintentional)
• Correct discriminatory employment practices as
  soon as possible after they are identified.

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Current Thinking of the Courts

• no justice has suggested that discrimination is
  a thing of the past which need not concern
  governmental entities. Governmental entities
  remain under a duty to eliminate the vestiges of
  segregation and discrimination.
• Wygant v. Jackson Board of Education (1986),
  as quoted in Connerly v. State Personnel Board
  (2001)
• California Court of Appeals

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Current Thinking of the Courts

• in approving Proposition 209, the
• voters intended section 31, like the Civil Rights
  Act as originally construed, to achieve equality
  of opportunities and to remove barriers that
  operate invidiously to discriminate on the basis
  of racial or other impermissible
  classifications.
• Hi-Voltage Wire Works, Inc. v. City of San Jose
  (2000)
• California Supreme Court

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Current Thinking of the Court on Affirmative
Action

• All of the justices agree that governmental
  entities may use race and gender neutral methods
  of fostering equal opportunity.
• Connerly v. State Personnel Board (2001)
• California Court of Appeals

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Preventive Measures Permissible Affirmative
Action

• Issue a policy statement on EEO and
  non-discrimination to all employees
• Display legally required DFEH Poster
• Issue written discrimination complaint procedures
  to all employees.
• Have well-trained staff administer the selection
  process.
• Have an independent EEO Office monitoring
  employment practices.
• Provide training to managers and supervisors in
  diversity and employment law.

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Corrective Measures Permissible
Affirmative Action

• Take swift action to stop
• ? Employment Discrimination, e.g.
  recruitment, examining, hiring, promoting,
  training, etc.
• ? Workplace Harassment
• ? Retaliation for filing discrimination
  complaints or acting as a witness.
• Take appropriate disciplinary action against
  those found to have discriminated.

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Limitations Placed on Affirmative Action

• California Constitution, Article 1, Section 31(a)
  - (h)
• Prohibits granting of preferences based on race
  or
• gender in public employment. (1996)
• Kidd v. State of California, 62 Cal.App.4th 386
  (1998)
• Selective Certification prohibited.
• Hi-Voltage Wire Works, Inc. v. City of San Jose,
• 72 Cal.4th 600 (2000), No. S080318
• Targeted or Focused Recruitment prohibited
• Connerly v. State Personnel Board,
• 92 Cal App.4th 16 (2001)
• Employment goals based on race or gender
  prohibited.

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Are Employment Goals Legal?

• NO! - If based on race or gender.
• California Court of Appeal has ruled that
  employment goals violate the California
  Constitution, as amended by Proposition 209.
• Connerly v. State Personnel Board
• YES! - If based on on disability.
• The court decision did not affect affirmative
  action for persons with disabilities.
• California labor force representation for
  persons with disabilities is 11.4 per U.S.
  Census Bureau Survey of Income and Program
  Participation (1991).

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What the Courts Have Said...

• Data Collection and Monitoring
• data collection and reporting do not suffer a
  constitutional defect because a determination of
  the underutilization of minorities and women in
  state service can serve a legitimate and
  important purpose. Such a determination may
  indicate the need for further inquiry to
  ascertain whether there has been specific, prior
  discrimination in hiring practices.
• Connerly v. State Personnel Board (2001)
• California Court of Appeal

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What is Underutilization?

• Underutilization means
• having fewer persons of a particular group in an
  occupation in a department than would reasonably
  be expected by their availability.

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How is availability determined?

• The U.S. Supreme Court has ruled that employers
  must use Relevant Labor Force data to determine
  availability.

General Labor Force
Relevant Labor Force
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Work Force Analysis Permissible
Affirmative Action

• Regularly monitor work force representation.
• Compare work force representation to relevant
  labor force representation.
• Identify significant underutilization of
  racial/ethnic, and gender groups and persons with
  disabilities.
• Follow-up to identify the causes of
  underutilization problems.
• Take effective action to eliminate inappropriate
  employment barriers.

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Permissible Actions

• Provide training to selection staff to ensure
  technical competence.
• Conduct job analyses to determine the job-related
  requirements.
• Revise minimum qualifications for jobs to
  eliminate non-job-related requirements.
• Revise recruitment plans to ensure all-inclusive
  outreach.
• Revise or replace examination materials that have
  non-job-related adverse impact.
• Validate selection processes.
• Provide hiring managers and supervisors diversity
  and employment law training.

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What the Courts Have Said...

• Outreach
• outreach or recruitment efforts which are
  designed to broaden the pool of potential
  applicants without reliance on an impermissible
  race or gender classification are not
  constitutionally forbidden.
• Hi-Voltage Wire Works, Inc. v. City of San Jose
  (2000)
• California Supreme Court

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Prohibited Actions

• Using job classifications that are race or gender
  based. Except where job-related.
• Establishing race or gender based employment
  goals.
• Conducting targeted or focused recruitment.
• Using non-job-related examinations.
• Using race or gender based selective
  certification procedures in the hiring process.
• Any other race or gender based employment action
  that is not job-related.

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Affirmative Action / Equal Employment Opportunity
Plans

• Should identify underutilized groups based on
  relevant labor force data comparisons.
• Should identify the actions planned or taken to
  identify the causes of underutilization problems.
• Where causes are identified, should indicate the
  permissible actions planned or taken to eliminate
  the non-job-related employment barriers.

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Summary of Basic Principles

• Employment Diversity must be achieved through the
  provision of equal opportunity.
• All actions that do not illegally discriminate or
  grant preferential treatment that work toward the
  achievement of equal employment opportunity and
  non-discriminatory employment practices are
  permissible Affirmative Actions.

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IN CONCLUSIONNon-Discrimination in Employment
Does Not Happen Automatically Affirmative
Action is Necessary to Ensure Equal Employment
Opportunity!