Name that Section - Frequently Used Education Code and Title 5 Sections for Community College Districts

a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.

Additionally, personnel involved in the hiring process, including participation in screening and selection committees, should be familiar with Government Code section 11135 et seq., which prohibits discrimination in any program run by a state agency or that receives state funding. Section 11135 essentially tracks the FEHA and states, in part, that:

a) No person in the State of California shall, on the basis of race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color, genetic information, or disability, be unlawfully denied full and equal access to the benefits of, or be unlawfully subjected to discrimination under, any program or activity that is conducted, operated, or administered by the state or by any state agency, is funded directly by the state, or receives any financial assistance from the state. Notwithstanding Section 11000, this section applies to the California State University.

As discussed below, the Legislature’s response to Proposition 209 is found in its amendments to this statutory scheme.

2. T HE P ASSAGE OF P ROPOSITION 209 162 In 1999, California enacted Proposition 209, which amended the California Constitution to require that “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.” As interpreted by the California Supreme Court, many of the traditional tools utilized to achieve diverse staffing have been called into question, including targeted recruitment. In particular, in Hi-Voltage Wire Works, Inc. v. City of San Jose , 163 the California Supreme Court read Proposition 209 to prohibit targeted recruitment efforts in the context of public contracting. While the case did not deal directly with public sector hiring, the Court’s interpretation and analysis were so expansive, that it has been read to reach targeted recruitment efforts in the hiring context. This conclusion was reinforced by the Court’s ruling in Connerly v. State Personnel Board , 164 which directly addressed hiring practices in community colleges.

Name that Section: Frequently Used Education Code and Title 5 Sections for Community College Districts ©2018 (c) Liebert Cassidy Whitmore 56