HIRSCHFELD KRAEMER LLP !

NATASHA J. BAKER

Direct Dial: (415) 835-9004

[email protected]

March 7, 2017

Via Email Attorney-Client Communication Privileged and Confidential Larry Nuti, Esq. General Counsel Saint Mary's College of California 1928 St. Mary's Road P.M.B. 3254 Moraga, CA 94575

Re:

Senate Action S-16117-2 7, Resolution for Increase of African-American and Black Faculty

Dear Mr. Nuti: You have asked for an opinion as to whether the Academic Senate's Resolution, approved on January 18, 2017, that is d esigned to increase African-American and Black facu lty at Saint Mary's College ("Resolution") is legally permissible. I.

Senate Resolution

The Senate Resolution states that current African American and Black faculty now comprise 5% of tenure track faculty at the College, and there are 10 African American and Black faculty out of "some 222 members." The Resolution provides that the 5% presence of African American and Black faculty "has over many years, and only recently, increased even this much from the previous, low, [sic] level which was only 2.0 to 2.5%." The Resolution continues that the "College shall commit to increase the amount of African American and Black faculty to 15% by academic year 2023-2024," and specifically to adding four new African-American and Black tenure-track facu lty over the next five years. Lastly, under the Resolution, "[a]ny increase in the size of the professoriate at the College from the current number of faculty of 222 shall trigger recalculation of the raw-number goal by the Chief Diversity Officer in order to maintain 15% commitment."

Southern California 233 Wllshlre Boulevard Suite 600 Santa Monica, CA 90401 T 310 255 0705 F 310 255 0986

Northern California

505 Montgomery Street, 13th Floor San Francisco, CA 94111 T 415 835 9000 1: 415 834 0443

Nevada 5441 Kietzke Lane, 2nd Floor Reno, NV 89511 T 775 826 7100 F 775 827 9256

Larry Nuti, Esq. General Counsel March 7, 2017 Page 2 II.

Analysis of Resolution

By virtue of its terms and commitment to increase the percentage of African American and Black faculty hired within a specified timeframe, this Resolution constitutes, in legal terms, a "voluntary Affinnative Action plan" ("AAP"). A voluntary AAP is any written plan that provides for a specific advantage in hiring or promotions for mfriority or female applicants. Voluntary AAPs are subject to legal attack on the basis that they violate employment discrimination laws, including Title VII of the Civil Rights Act of 1964 and the California Fair Employment & Housing Act, which prohibit making employment decisions based on race, color, and national origin, among other characteristics. In this instance, making employment decisions to prefer African American or Black candidates, would constitute employment discrimination. Unfortunately, although it has laudable goals, the Senate Resolution is unlawful for several reasons. First, using quotas or targets in an AAP, as the. Resolution does, is not permitted under the law. The AAP also lacks several requisite elements as required under the Code of Federal Regulations, including a detailed analysis showing a history of discrimination 1 and a statistical examination of the labor workforce with the current employer workforce. In order to defend against any claims that the hiring practices under the Senate Resolution violates Title VII and the California Fair Employment & Housing Act, all of these elements must be established. As such, it is likely that the College would not be able to successfully defend against a race discrimination claim because the voluntary AAP is insufficient under federal and state regulations.

Ifthe College desires to move forward with a.voluntary AAP to make race-based hiring decisions in selecting faculty members, we recommend retaining an expert consultant with significant experience in developing valid plans consistent with the rigorous legal parameters. Ifyou have any questions or wish to further discuss, please feel free to contact me. Very truly yours,

!

Natasha J. Baker NJB/cjm

!

1

There are some circumstances in which voluntary AAPs are lawfully designed in order to support racebased employment decisions. In view of the federal regulations, those circumstances typically include when an external consultant has conducted a historical analysis of the employer's prior hiring practices and can thus deinonstrate that such hiring practices has effectively had a disparate impact on minorities and restricted m inorities from applying or being selected for positions. Coutis have struck down AAPs when there was no concrete fi nding of historical or c'i.1rrent discrimination in the employer's industry, or a finding that a relevant job category was or ever had been affected by segregation. Iri addition, an external consultant should prepare a statistical analysis that includes a comparison of the percentage of minorities in the College's workforce with the percentage in the area labor market or general population that holds the same skills. Plans must not include quotas or a specific threshold for hiring.

17 May Response from attorney.pdf

Plansmustnotinclude. quotas or aspecificthreshold forhiring. Page 2 of 2. 17 May Response from attorney.pdf. 17 May Response from attorney.pdf. Open. Extract.

119KB Sizes 1 Downloads 223 Views

Recommend Documents

17 May Response from attorney.pdf
Santa Monica, CA 90401. T 310 255 0705. F 310 255 0986. Northern California. 505 Montgomery Street, 13th Floor. San Francisco, CA 94111. T 415 835 9000.

COMP Monthly Report from 17-19 May 2016 meeting - European ...
May 26, 2016 - Send a question via our website www.ema.europa.eu/contact ... Donor T lymphocytes depleted ex vivo of host alloreactive T cells using ...

COMP Monthly Report from 17-19 May 2016 meeting - European ...
May 26, 2016 - receptor for treatment of acromegaly, Coté Orphan Consulting UK Limited; ... Donor T lymphocytes depleted ex vivo of host alloreactive T cells ...

17 May 10
141/21 Moo 6, Bophut, Koh Samui, Surat Thani 84320, Thailand. 17 May 10. Dear Parents,. I am sorry for my sudden and unannounced departure last week ...

Menus May 17.pdf
Build your Lunch tray by picking 3 to 5 items (take 1⁄2c Fruit/Juice or 1⁄2c ... Check ChooseMyPlate.gov website for valuable nutrition related information.

Minutes May 17, 2016.pdf
K. Guiton, F. Fenton, K. Travis Absent: P. McGee, L. Evans, S. Carr, T. Blaisure, P. Staats, J. Baker, C. Childress, T. Jayne, M. Weisgold, C. Place(guest). Roll Call ...

Eastern News-May' 17.pdf
Page 3 of 21. CLASS-I FEDERATION'S RECENT CIRCULARS : Page 3 of 21. Eastern News-May' 17.pdf. Eastern News-May' 17.pdf. Open. Extract. Open with.

may-june 17.pdf
There was a problem previewing this document. Retrying... Download. Connect more apps... Try one of the apps below to open or edit this item. may-june 17.pdf.

Agenda May 17, 2016.pdf
Manager, EWSD School Board and Superintendents. Action. Required. III N/A .... Retrying... Agenda May 17, 2016.pdf. Agenda May 17, 2016.pdf. Open. Extract.

May 17 Mtg Minutes PTO.pdf
There was a problem previewing this document. Retrying... Download. Connect more apps... Try one of the apps below to open or edit this item. May 17 Mtg ...

(2010). From preferential response to parental
Jun 8, 2010 - All statistical analyses were performed with R software ... Statistical analysis of the effect of playback stimuli on behavioural response (number.

(2010). From preferential response to parental
Jun 8, 2010 - study confirms this general view, but also clearly indicates that this recognition may continue in the .... 360e380. Sunderland, Massachussetts: ...

Photoelectric Response from Two Amphiphilic ...
dye molecule (dye0 shown in Chart 1) with electroneutral chromophores has a .... water purified with an EASYpure RF compact ultrapure system. (R ∼ 18 MΩ).

2015 05 17 Newsletter May 17 2015.pdf
May 17, 2015 - There was a problem previewing this document. Retrying... Download. Connect more apps... Try one of the apps below to open or edit this item.

15 May 17.pdf
Mid-Term Break: Monday 29th May – Friday 2nd June 2017. School Closes: Friday 14th July 2017. School Opens: Thursday 31st August 2017. Mid-Term Break: Monday 16. th – Friday 20th October 2017. School Closes: Thursday 21st December 2017. School Op

May 17, 2017 Minutes.pdf
2300 Esprit Drive, Orleans, Ontario K4A 0T5 ... The Ottawa Catholic School Board is in the process of reviewing the Board. priorities ... C) Parish Representative:.

RES May 17 menu.pdf
Rice. C: Chicken Nuggets. Peas. Fresh Broccoli. A: Beefy Nachos. B: Chicken Caesar. Salad. C: Chicken Nuggets. Baked Beans. Celery Sticks. A: Cheese Pizza.

Adds From May 1 - May 15, 2016.pdf
32 Jan Marie Therese N. Guadana 81 Adriel T. Setik. 33 Cynthia T. ... Adds From May 1 - May 15, 2016.pdf. Adds From May 1 - May 15, 2016.pdf. Open. Extract.

Adds from May 1 - May 31, 2015.pdf
There was a problem previewing this document. Retrying... Download. Connect more apps... Try one of the apps below to open or edit this item. Adds from May 1 ...

Adds From May 1 - May 15, 2016.pdf
There was a problem previewing this document. Retrying... Download. Connect more apps... Try one of the apps below to open or edit this item. Adds From May ...

Saving Zen From Moral Ineptitude: A Response to ...
reflect on what Zen social ethics actually is or has been, their primary concern is .... enlightenment, or social activism of Korean Minjung Buddhism), they offer ...

Knowing This from That: Brain Response to Objects ...
the mail, from the internet), the event itself, buying a ticket, is a highly probable ..... Cognitive Neuroscience Society, San Francisco, CA, 2004. Hanson, C., & Hirst ...

(May 17, 1991) Abuses in Federal Student Aid Programs PSI.pdf ...
There was a problem previewing this document. Retrying... Download. Connect more apps... Try one of the apps below to open or edit this item. (May 17, 1991) ...