Staff & Faculty Counseling Center

Proposition 209 and Regental Resolution SP-2: Questions and Answers

Implementation of Proposition 209: How it impacts UC's Employment Practices

University of California Office of the President
Proposition 209 went into effect on August 28, 1997 and is now Section 31 of Article I in the California State Constitution. The passage of Proposition 209 in November 1996 followed adoption by The Regents of Resolution SP-2: Policy Ensuring Equal Treatment--Employment and Contracting on July 20, 1995. On November 3, 1997, after several lower court decisions, further appeal of Proposition 209 was denied by the U.S. Supreme Court, thus letting stand the law. In May 2001, The Regents rescinded Resolution SP-2. Following is information regarding the impact of Proposition 209 on UC's employment practices and affirmative action.

TEXT OF THE PRINCIPAL PROVISIONS OF PROPOSITION 209 CALIFORNIA CONSTITUTION, ARTICLE 1, SECTION 31
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.

Nothing in this section shall be interpreted as prohibiting bona fide qualifications based on sex which are reasonably necessary to the normal operation of public employment, public education, or public contracting.

Nothing in this section shall be interpreted as invalidating any court order or consent decree which is in force as of the effective date of this section.

Nothing in this section shall be interpreted as prohibiting action which must be taken to establish or maintain eligibility for any federal program, where ineligibility would result in a loss of federal funds to the state.

For the purposes of this section, "state" shall include, but not necessarily be limited to, the state itself, any city, county, city and county, public university system, including the University of California, community college district, school district, special district, or any other political subdivision or governmental instrumentality of or within the state.

QUESTIONS & ANSWERS

1. Q: Does Proposition 209 apply to the University?
A: Yes, the University is specifically included in the new constitutional amendment's definition of the term "state".

2. Q: Who is affected by the employment provisions of Proposition 209?
A. The provisions apply to UC academic and staff employees and applicants for employment.

3. Q: What are the employment practices to which Proposition 209 apply?
A: Examples include selection, promotion, transfer, training and development, and other terms and conditions of employment.

4. Q: What is the University PROHIBITED from doing under Proposition 209?
A: UC may not consider race, religion, sex, color, ethnicity, or national origin in selection, promotion, or any other employment practice, unless such action must be taken to establish or maintain eligibility for any federal program.

5. Q: What is the University PERMITTED to do under Proposition 209?
A: UC must use race- or gender-neutral criteria in its employment practices. However, as indicated in the previous answer, UC is permitted to consider race, ethnicity, or gender if required pursuant to federal requirements. Federal regulations governing UC's affirmative action activities require the use of race, ethnicity, or gender in very limited circumstances, such as when analyzing the workforce to identify areas of underutilization of minorities and women and establishing goals, when underutilization exists, in affirmative action plans. When goals exist in a particular job for which recruitment is being conducted, UC undertakes supplemental recruitment efforts to include underutilized minorities and women in the applicant pool. Supplemental efforts could include sending job announcements to minority and women's organizations. However, a candidate may not be selected because of his or her race or gender.

6. Q: Can race, ethnicity, or sex be used as A FACTOR among other factors in selecting minorities or women for employment or for participation in training programs?
A. No. Any use of race, ethnicity, or gender as criteria for selection in hiring, participating in training programs, or any other employment practice conflicts with the new constitutional amendment.

7. Q: Do Proposition 209 eliminate employment affirmative action at the University?
A: No. UC is a federal contractor and is obligated to comply with federal laws and regulations regarding affirmative action. These obligations include good faith efforts to create diverse pools of applicants for UC positions; developing and implementing affirmative action plans which identify areas of underutilization of minorities and women; and demonstrating good faith efforts to eliminate underutilization.

8. Q: How does Proposition 209 affect the University's employment affirmative action obligations?
A: The new constitutional amendment permits "action which must be taken to establish or maintain eligibility for any federal program, where ineligibility would result in loss of federal funds to the state."

9. Q: How does Proposition 209 affect hiring "preferences" for minorities and women?
A: Employment affirmative action does not require hiring "preferences" for minorities and women, nor are preferences appropriate under law. It has not been UC's policy to give preference to hiring minorities and women solely on the basis of race, ethnicity, or gender. UC's policy has been and continues to be to select the individual who possesses the qualifications to perform the duties of the position most effectively.

10. Q: Are there any situations in which race, religion, sex, color, ethnicity, or national origin can be considered?
A: Race, ethnicity, and sex are considered in setting affirmative action goals. As a federal contractor, UC is required to compare its minority and female workforce to minorities and women with requisite skills in the labor force. If there is under-utilization of minorities or women in the UC workforce as compared to the labor force, the University must set goals (not quotas) to correct the underutilization, and must make good faith efforts (not give preferences) toward achieving the goals. These factors can also be considered when planning a strategy for outreach, in order to create a diverse pool of applicants.

11. Q: How can good faith efforts towards meeting goals and remedying underutilization be achieved without taking into consideration race, ethnicity, or sex in hiring or training and developing employees?
A: Good faith efforts can be demonstrated by supplementing existing outreach and recruitment efforts to include qualified minorities and women in applicant pools, to promote opportunities to participate in employee training and development programs, and to provide equal opportunity to compete for positions. Training is another tool that can be used to demonstrate that the workplace welcomes and supports diversity in the workforce.

12. Q. What are the University's current policies on employment affirmative action?
A. UC currently has two President's policies on affirmative action, entitled University of California Nondiscrimination and Affirmative Action Policy Regarding Academic and Staff Employment; and Nondiscrimination and Affirmative Action Policy Statement for University of California Publications Regarding Employment Practices. These two policies state that in accordance with State and Federal law, UC does not discriminate on specified enumerated bases; undertakes affirmative action for underutilized minorities and women, for persons with disabilities, and for Vietnam era veterans and special disabled veterans; and prepares and maintains written affirmative action plans. In addition, UC has academic and staff personnel policies covering nondiscrimination and affirmative action, as well as personnel policies relating to affirmative action, such as policies on recruitment, selection, promotion, and employee development. These personnel policies are consistent with applicable State and Federal law.

13. Q: How have employee training and development programs at the University been affected by Proposition 209?
A: Those training and development programs which in the past have solely targeted underrepresented minorities and women are now open to all employees, regardless of race, religion, sex, color, ethnicity, or national origin. Advertisements for fellowships and other development opportunities now indicate that all qualified employees are welcome to apply.

Federal regulations require that action-oriented programs be developed to remedy underutilization of minorities and women. UC will continue to develop such programs, but the programs will be open to all employees.

14. Q: Can recruitment advertisements for University positions encourage minorities and women to apply?
A: Yes. Recruitment advertisements may continue to state that the University is an "Equal Opportunity/ Affirmative Action Employer." It is also acceptable for advertisements to state that "all qualified applicants are encouraged to apply, including minorities and women."

15. Q: Will managers still need to be accountable for meeting affirmative action objectives?
A: Yes. Managers are responsible for making good faith efforts toward achieving affirmative action goals.

16. Q: How can a diverse University workforce be achieved without taking into consideration race, ethnicity, sex, etc.?
A: Although the new constitutional amendment prohibits consideration of race, ethnicity, gender, etc. in UC's employment practices, The Regents support outreach and recruitment efforts as a means for achieving workforce "diversity." By making supplemental efforts to reach and recruit qualified minority and women applicants, UC can make progress towards achieving a diverse workforce through affirmative action.

17. Q: What is the difference between "affirmative action" and "diversity"? How does "affirmative action" relate to "diversity"?
A: As discussed in a previous answer, affirmative action is a legal obligation for UC as a federal contractor. Affirmative action refers to specific efforts undertaken by the University, such as supplemental recruitment, designed to promote equal employment opportunity and to create diverse pools of applicants for University positions. Affirmative action is applicable to qualified minorities, women, persons with disabilities, special disabled veterans, veterans of the Vietnam-era, and any other veteran who served on active duty during a war or in a campaign or expedition for which a campaign badge has been authorized, although the setting of goals for correcting underutilization applies to minorities and women only.

Workforce diversity is an organizational and managerial process for developing an environment which maximizes and values the potential of all employees. Diversity is a desirable objective but is not a federally mandated obligation. A diverse workforce is one which reflects all demographic groups that comprise the general population, encompassing race, ethnicity and gender as well as religion, national origin, age, physical/mental abilities, marital status, parental status, sexual orientation, socioeconomic level, educational background, lifestyle, and all other demographic characteristics.

Diversity is broader in its implications than affirmative action because it encompasses all individuals in the various demographic groups found in the general population.

NONDISCRIMINATION AND AFFIRMATIVE ACTION POLICY STATEMENT FOR UNIVERSITY OF CALIFORNIA PUBLICATIONS REGARDING EMPLOYMENT PRACTICES

The University of California prohibits discrimination against or harassment of any person employed by or seeking employment with the University on the basis of race, color, national origin, religion, sex, physical or mental disability, medical condition (cancer-related), ancestry, marital status, age, sexual orientation, citizenship, or status as a Vietnam-era veteran or special disabled veteran.

The University of California is an affirmative action/equal opportunity employer. The University undertakes affirmative action to assure equal employment opportunity for underutilized minorities and women, for persons with disabilities, and for Vietnam-era veterans and special disabled veterans.

University policy is intended to be consistent with the provisions of applicable State and Federal law.

The University of California, Los Angeles (UCLA or University) is an equal employment opportunity employer. It is the policy of the University not to discriminate against any person employed by or seeking employment with the University because of race, color, religion, marital status, national origin, ancestry, sex, sexual orientation, physical or mental disability, medical condition (cancer-related or genetic characteristics), status as a covered veteran (special disabled veteran, Vietnam-era veteran or any other veteran who served on active duty during a war or in a campaign or expedition for which a campaign badge has been authorized), or, within the limits imposed by law or University regulations, because of age or citizenship.

UCLA is an affirmative action employer. It is the policy of the University to undertake affirmative action for minorities, women, persons with disabilities, special disabled veterans, Vietnam-era veterans, and any other veteran who served on active duty during a war or in a campaign or expedition for which a campaign badge has been authorized.

University policy is intended to be consistent with the provisions of applicable State and Federal law.

STATEMENT OF BASIC POLICY ON EQUAL EMPLOYMENT OPPORTUNITY AND AFFIRMATIVE ACTION FOR STAFF EMPLOYEES AT UCLA

The University of California, Los Angeles (UCLA or University) is an equal employment opportunity employer. It is the policy of the University not to engage in discrimination against or harassment of any person employed by or seeking employment with the University because of race, color, religion, marital status, national origin, ancestry, sex, gender identity, sexual orientation, pregnancy, physical or mental disability, medical condition (cancer-related or genetic characteristics), status as a covered veteran, or, within the limits imposed by law or University regulations, because of age or citizenship.

UCLA will make good faith efforts to promote and maintain a discrimination/harassment-free workplace by demonstrating that it neither condones nor tolerates employment practices that discriminate or harass against any person or specific group of persons on the basis listed above. These employment practices include recruitment, selection, promotion, transfer, demotion, merit increases, salary, training and development, separation, and making reasonable and appropriate accommodations for persons with disabilities. UCLA is committed to maintaining an environment in which employees can work in an atmosphere that is free from all forms of discrimination, harassment (sexual or otherwise), exploitation, or intimidation. Such behavior is prohibited by law and is a violation of University policy.

UCLA is an affirmative action employer. It is the policy of the University to undertake affirmative action for minorities, women, persons with disabilities and all covered veterans.

UCLA is committed to making every good faith effort toward achieving and maintaining a diverse workforce, at all levels of employment, that is representative of the availability of qualified women and minorities in the relevant labor markets. Furthermore, it is our policy at UCLA to promote equal employment opportunity and to take affirmative action through recruitment and employment efforts, training and development, educational opportunities, advancement in employment, transfer and other terms and conditions of employment of qualified minorities, women, persons with disabilities, and covered veterans.

Our primary tool toward the attainment of a diverse workplace is the development of and adherence to an Affirmative Action Plan (AAP) that translates the legal mandates concerning equal employment opportunity and affirmative action and the social responsibilities associated with diversifying the workplace into an operational framework for implementation by the Affirmative Action Unit Vice Chancellors and Medical Center Director.

This written Plan, which is required by federal regulations, is available for inspection during normal working hours in the Staff Affirmative Action Office, the Offices of the Affirmative Action Unit Heads, and the Libraries. It can also be viewed via the Web at www.chr.ucla.edu/chr/sa.

While it is understood that the application of specific policies will contain appropriate variations for staff employees, this basic statement of UCLA's policy applies alike to all employees.

This AAP is updated annually and should be reviewed by campus units accordingly. The Plan shall remain in effect until superseded in whole or in part(s).

It must be emphasized that the purpose of this policy statement and our written Plan is to recognize that mere opposition to employment discrimination or harassment is not enough. Commitment and effort are required for achievement. I fully expect that these four aspects will characterize the implementation of this program at every level and in every sector of this institution.

This statement of policy and our written Plan are to be considered a directive to all University personnel, and supersede all prior policies which may be inconsistent with them. Direct responsibility for affirmative action is hereby assigned to the Administrative Vice Chancellor for staff administration, with such assistance and support as the written Plan provides.

Albert Carnesale
Chancellor
January 2004