In California, affirmative action is mostly banned in public institutions by Proposition 209, which was passed by voters in 1996. Affirmative action is most commonly encountered in the following situations: education, employment recruiting and hiring, government contracting, and scholarship programs.
Public universities and employers in California cannot consider race, sex, color, ethnicity, or national origin in their admissions or hiring decisions. The principle behind affirmative action is to address historical and societal discrimination and disparities.
What Is California’s Policy on Affirmative Action?
California has had a complex history with affirmative action. In 1996, Proposition 209 was passed, which prohibited the state from discriminating or giving preferential treatment based on race, sex, color, ethnicity, or national origin in public employment, education, and contracting.
However, in 2020, Proposition 16 sought to repeal the affirmative action ban from Proposition 209 but was not successful.
The effects of Proposition 209 on the diversity and outcomes of public universities and employment have been debated and studied by various researchers and advocates. Some argue that it has reduced the representation and opportunities of historically disadvantaged groups. At the same time, others contend that it has improved academic performance and fairness.
That being said, many private employers in California still implement affirmative action programs as long as they comply with federal law.
What Are the Requirements to Use Affirmative Action?
As we mentioned before, public universities and employers in California cannot consider race, sex, color, ethnicity, or national origin in their admissions or hiring decisions. However, they can still use other criteria, such as socioeconomic status, geographic location, academic achievement, and personal background, to promote diversity and inclusion. They can also implement programs that support the academic success and retention of underrepresented students and employees.
Private employers in California are not bound by Proposition 209. However, they must comply with federal laws and regulations that prohibit discrimination and allow affirmative action programs under certain conditions.
For example, federal contractors are required to implement affirmative action plans to ensure equal opportunity for minorities and women. Private employers can also voluntarily adopt affirmative action policies as long as they are not based on strict quotas or cause undue harm to other groups.
What Is an Affirmative Action Plan?
An Affirmative Action Plan (AAP) is a detailed, results-oriented set of procedures and actions designed to eliminate barriers to equal employment opportunities. Such barriers may have resulted from past discrimination or societal patterns of discrimination.
An AAP usually includes goals and timetables for achieving full employment parity for members of racial minorities, women, veterans, and individuals with disabilities. This relates to the Americans with Disabilities Act and the Age Discrimination in Employment Act. Both ensure that people with disabilities and older employees, respectively, are not discriminated against in employment.
Here’s how an AAP relates to the ADA and the ADEA:
Framework for Compliance
An AAP offers employers a structured way to ensure that they are in compliance with federal laws, including the ADA and ADEA. By addressing the hiring, promotion, and retention of individuals with disabilities and older employees in their AAPs, employers can demonstrate their commitment to these federal regulations.
Identification and Removal of Barriers
An AAP requires employers to assess potential employment barriers. This directly corresponds with the ADA, which mandates employers to provide reasonable accommodations for individuals with disabilities, effectively removing barriers to their employment. Similarly, by identifying barriers for older workers, employers can address potential age discrimination issues in line with the ADEA.
Monitoring and Reporting
Both the AAP and acts like the ADA and ADEA emphasize the importance of documentation and reporting. An employer with an AAP must monitor their progress and report on it. This documentation can be crucial if there are ever questions about compliance with the ADA or ADEA.
Outreach and Recruitment
An AAP mandates outreach efforts to diversify the applicant pool. In line with the ADA, employers would thus seek to reach potential employees with disabilities. Similarly, in alignment with the ADEA, efforts might be made to ensure that older workers are also being reached and considered.
Training and Education
AAPs often involve training sessions for current employees and management. These sessions can encompass the ideals of the ADA and ADEA. Both ensure that the workforce understands the importance of not discriminating against individuals with disabilities or based on age.
In summary, the ADA and ADEA are designed to prevent discrimination against specific groups. However, an AAP provides a proactive framework for employers to actively promote and ensure diversity, which includes the groups protected under these acts.
How Does Affirmative Action Relate to Reverse Discrimination?
Affirmative action is intended to level the playing field by giving historically marginalized groups better opportunities. However, critics argue that in doing so, it might discriminate against members of historically dominant or majority groups. This is termed “reverse discrimination.”
In some cases, affirmative action programs have been challenged in court on the grounds of reverse discrimination. It’s a contentious topic, with valid concerns from both sides.
Here are some examples of such cases and their outcomes.
Ricci v. DeStefano (2009)
This case involved a group of white firefighters who sued the city of New Haven, Connecticut, for discarding the results of a promotion exam that they passed, but most of their black and Hispanic colleagues failed. The city argued that it acted to avoid violating Title VII of the Civil Rights Act of 1964, which prohibits employment practices that have a disparate impact on certain groups. The Supreme Court ruled in favor of the firefighters, holding that the city’s action violated Title VII because it was based on race and not on strong evidence of disparate impact.
Ex-Morgan Stanley Executive Alleges Reverse Discrimination in Lawsuit (2021)
This case involved a former executive with Morgan Stanley who sued the company for discrimination, alleging he was fired and replaced with a black woman with less experience and qualifications as part of the company’s diversity and inclusion goals. The executive claimed that he was an active supporter of the company’s DEI efforts and had an impressive list of achievements. The lawsuit is still pending as of September 2023.
Regents of the University of California v. Bakke (1978)
This case involved a white student who applied to the medical school of the University of California at Davis. She was rejected twice despite having higher test scores and grades than some of the minority applicants who were admitted under a special program that reserved 16 out of 100 seats for disadvantaged students.
The student sued the university for violating his equal protection rights under the Fourteenth Amendment. The Supreme Court ruled that the university’s use of strict racial quotas was unconstitutional, but that race could be considered as one of many factors in admissions decisions.
If you have more questions, a knowledgeable affirmative action lawyer can provide guidance on the nuances of state and federal laws.
Should I Hire a California Employment Lawyer for Help With Affirmative Action Issues?
If you believe you’ve faced discrimination, or if you’re an employer looking to implement or evaluate an affirmative action policy, it’s wise to consult with an attorney. Through LegalMatch, you can find a qualified California employment lawyer who can help navigate these complex issues, ensuring that your rights are protected and you remain compliant with the law.
If you’re facing affirmative action issues in California, don’t handle them alone. Find a dedicated California employment lawyer through LegalMatch today to ensure that your rights and interests are represented and protected. Act now and get the legal help you deserve.
