UCSD
CAMPUS NOTICE
University of California, San Diego
 

ASSISTANT VICE CHANCELLOR -
HUMAN RESOURCES
October 8, 1997
PLEASE POST
ALL AT UCSD
SUBJECT: Proposition 209
On August 28, 1997, Proposition 209 went into effect and is now a part of the California State Constitution (Section 31 of Article I). The new constitutional amendment is similar to the Regents Resolution SP-2 adopted on July 20, 1995. Both the constitutional amendment and SP-2 permit action which must be taken to establish or maintain federal program eligibility.
Due to UCSD's status as a federal contractor, it is obligated to comply with federal laws and regulations relating to affirmative action and opportunity. With regard to employment, the modifications made to UCSD's policies, programs, and practices to conform with the Regents' resolution places the University in compliance with the new constitutional amendment and fulfills the University's obligations as a federal contractor.
Attached is a document that provides some questions and answers that relate to the impact of the new constitutional amendment on the University of California/UCSD's employment practices. In addition, the document is available on the WWW at the following address:
http://www.ucop.edu/humres/policies/sp-2.html
We hope the questions and answers are useful in explaining the effect of the amendment on affirmative action at the University.
Rogers Davis
Assistant Vice Chancellor -
Human Resources
_________________________________________________________________
University of California Academic Affairs Office of the President Human Resources
August 1997
IMPLEMENTATION OF PROPOSITION 209:
HOW IT IMPACTS UC'S EMPLOYMENT PRACTICES
On August 28, 1997, after several court decisions, Proposition 209 went into effect. Pending further court action, Proposition 209 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 on July 20, 1995. 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 I, 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.
TEXT OF THE PRINCIPAL PROVISIONS OF REGENTS RESOLUTION SP-2: POLICY ENSURING EQUAL TREATMENT-EMPLOYMENT AND CONTRACTING
Section 1. Effective January 1, 1996, the University of California shall not use race, religion, sex, color, ethnicity, or national origin as criteria in its employment and contracting practices.
Section 2. The President of the University of California is directed to oversee a systemwide evaluation of the University's hiring and contracting practices to identify what actions need to be taken to ensure that all persons have equal access to job competitions,contracts, and other business and employment opportunities of the University. A report and recommendations to accomplish this objective shall be presented to the Board of Regents before December 1, 1996.
Section 3. Nothing in Section 1 shall prohibit any action which is strictly necessary to establish or maintain eligibility for any federal or state program, where ineligibility would result in a loss of federal or state funds to the University.
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 and Regents' Resolution SP-2?
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 and Regents' Resolution SP-2 apply?
A: Examples include selection, promotion, transfer, training and development, and other terms and conditions of employment.
4.Q: How does Proposition 209 affect the University's obligations regarding Regents' Resolution SP-2?
A: According to the Office of the General Counsel, the adjustments made to University policy and practices to conform to SP-2 should place the University in compliance with the provisions of the new constitutional amendment. In addition, the new constitutional amendment removes The Regents' discretion to repeal or modify SP-2.
5.Q: What is the University PROHIBITED from doing under Proposition 209 and Regents' Resolution SP-2?
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 (Proposition 209), or consideration is "strictly 
necessary" to establish or maintain eligibility for any federal program, where ineligibility would result in a loss of federal funds to the University (Regents' Resolution SP-2). UC counsel has interpreted "strictly necessary" to mean required by federal law or regulations.
6.Q: What is the University PERMITTED to do under Proposition 209 and Regents' Resolution SP-2?
A: UC must use race- or gender-neutral criteria in its employment practices. However, as indicated in the previous answer, UC is permitted to color, 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 under-utilization of minorities and women and establishing goals, when under-utilization 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 under-utilized minorities and women in the applicant pool. Supplemental effort 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.
7.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 conflict with the new constitutional amendment and SP-2.
8.Q: Do Proposition 209 and Regents' Resolution SP-2 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 under-utilization of minorities and women; and demonstrating good faith efforts to eliminate under-utilization.
9.Q: How do Proposition 209 and Regents' Resolution SP-2 affect the University's employment affirmative action obligations?
A: The new constitutional amendment and Regents' Resolution SP-2 have similar effects on the University's employment affirmative action obligations. 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."
10.Q: How do Proposition 209 and Regents' Resolution 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.
11.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 under-utilization, 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.
12.Q: How can good faith efforts towards meeting goals and remedying under-utilization 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 work place welcomes and supports diversity in the workforce.
13.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 under-utilized 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.
14.Q: How have employee training and development programs at the University been affected by Proposition 209 and Regents' Resolution SP-2?
A: Those training and development programs which in the past have solely targeted under-represented 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 under-utilization of minorities and women. UC will continue to develop such programs, but the programs will be open to all employees.
15.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."
16.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.
17.Q: What does the Regents' Diversity Commitment statement in Regents' Resolution SP-2 mean?
A: The Regents' Diversity Commitment was adopted by The Regents to apply to both the Policy Ensuring Equal Treatment-Admissions (Regents Resolution SP-1) and the Policy Ensuring Equal Treatment-Employment and Contracting (Regents Resolution SP-2), and reads:
"Believing California's diversity to be an asset, we adopt this statement: 
Because individual members of all of California's diverse races have the 
intelligence and capacity to succeed at the University of California, this 
policy will achieve a UC population that reflects this state's diversity 
through the preparation and empowerment of all students in this state to 
succeed rather than through a system of artificial preferences."
The Regents' Diversity Commitment means that The Regents, although prohibiting the consideration of race, religion, sex, color, ethnicity, or national origin in UC's employment practices, acknowledge the value of a diverse workforce.
18.Q: How can a diverse University workforce be achieved without taking into consideration race, ethnicity, sex, etc.?
A: Although the new constitutional amendment and SP-2 prohibit 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.
19.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 minorities, women, individuals with disabilities, 
Vietnam-era veterans, and special disabled veterans, although the setting 
of goals for correcting under- utilization 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.
     
20.Q:  In general, what are the modifications that should be made to the 
University's hiring practices as a result of Proposition 209 and Regents' 
Resolution SP-2?
     
   A:  The following are the modifications to the University's hiring 
process that should be made to comply with the new constitutional amendment 
and with SP-2, as well as to implement an effective affirmative action 
program.
     
STEPS IN THE HIRING PROCESS                      MODIFICATION TO STEPS
     
Gather Availability and Utilization Data         Remains the Same
     
Diversity/Cultural Competence Education          Strengthen 
for Faculty and Staff Who Have Appointment     
Authority
     
Outreach Activities to Enhance Diversity         Strengthen 
of Applicant Pool
     
Training, Mentorship, and Other Special          Modify to Eliminate 
Programs for Potential Appointment               Race & Gender Criteria 
or Promotion
     
The Appointment/Hiring Decision                  Modify to Eliminate      
                                                 Race & Gender Criteria
     
Monitoring Diversity and under utilization       Strengthen  
of Faculty and Staff
     
Evaluation of Those with Appointment             Strengthen 
Authority Regarding Good Faith Efforts