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.