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

i. Job Related Screening and Selection Procedures A core principle of non-discriminatory hiring criteria is that they must be “job related.” Job requirements that lack a clear nexus to the knowledge or skills required for the position are suspect and subject to challenge if they have the effect of disproportionately excluding or creating an “adverse impact” on a group based on race, gender or other protected status. 180 Therefore, the regulations require that all screening and selection procedures be based solely on job-related criteria. In addition to articulating this requirement, the regulations require districts to review all local desired and preferred qualifications for any job category where they determine there is persistent underrepresentation of a monitored group. Districts are also required to ensure that “meaningful consideration” is given to whether applicants for faculty and administrative positions demonstrate “sensitivity to and understanding of the diverse academic, socioeconomic, cultural, disability and ethnic backgrounds of community college students.” 181 We read this statutory requirement as establishing, by law, the job-relatedness of “sensitivity to diversity” to all faculty and administrative positions. Indeed, on June 17, 2016, the Chancellor’s Office issued Legal Opinion 16-04 regarding Equal Employment Opportunity, which, among other things, made clear that this requirement functions as a minimum qualification. The Opinion states that“[s]ince it is a job requirement, state law treats ‘sensitivity to diversity’ as similar to a minimum requirement.” 182 The regulations leave to individual districts how to articulate and measure this criterion. What is clear post-Proposition 209, however, is that districts may not consider applicants’ ethnicity, race or gender in an effort to satisfy the “sensitivity to diversity” criterion. Strategies for effectively utilizing this criterion are discussed in Section 4 below. ii. External Recruitment for All Permanent Openings Districts are mandated to “actively recruit from both within and outside the district work force to attract qualified applicants for all vacancies,” 183 which includes all vacant full-and part-time openings in all job categories and classifications—classified, academic, categorical, administrative and managerial. In-house or “promotional only” recruitment is prohibited to fill any vacancy, except on an interim basis for the minimum time necessary (but no more than two years) to allow for a full and open recruitment. A “vacancy” is not created, however, where there is a reorganization or lateral transfer that does not result in a net increase in employees. 184 Nor is one created where a position is upgraded without a significant alteration in duties. A vacancy is also not created when the position is filled by a temporary, short-term, or substitute employee appointed pursuant to Education Code sections 87422, 87480, 87482.5(b), 88003, 88106 or 88109 or an individual not currently employed by the district, who is specially trained, experienced, and competent to serve as an administrator, and who satisfies the minimum qualifications applicable to the position, is engaged to serve as an administrator through a professional services contract. No appointment or series of appointments pursuant to this provision may exceed a period of two years. 185

Name that Section: Frequently Used Education Code and Title 5 Sections for Community College Districts ©2020 (c) Liebert Cassidy Whitmore 60