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PERMISSIBLE AFFIRMATIVE ACTION

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The Civil Rights Act of 1964 permits affirmative action. It does not require it. ... The Court's View of the Civil Rights Act of 1964 ' ... – PowerPoint PPT presentation

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Title: PERMISSIBLE AFFIRMATIVE ACTION


1
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

2
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

3
STATE CIVIL SERVICE (As of March 31, 2002)
4
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.

5
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

6
30th Anniversary of the Equal Opportunity Act of
1972
  • Extended the protections of the Civil Rights Act
    of 1964 to public employees.

7
What is Equal Employment Opportunity?
  • It is both a statement of policy
  • and a goal
  • requiring action to achieve.

8
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.

9
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.

10
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.

11
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

12
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.

13
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.

14
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

15
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

16
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

17
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.

18
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.

19
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.

20
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).

21
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

22
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.

23
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
24
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.

25
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.

26
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

27
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.

28
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.

29
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.

30
IN CONCLUSION Non-Discrimination in Employment
Does Not Happen Automatically… Affirmative
Action is Necessary to Ensure Equal Employment
Opportunity!
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