BILL ANALYSIS
AB 124
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Date of Hearing: March 16, 2005
ASSEMBLY COMMITTEE ON PUBLIC EMPLOYEES, RETIREMENT AND SOCIAL
SECURITY
Alberto Torrico, Chair
AB 124 (Dymally) - As Introduced: January 13, 2005
SUBJECT: Civil service: equal opportunity programs.
SUMMARY : Clarifies current Equal Employment Opportunity
requirements and clearly expresses the state's equal employment
opportunity and non-discrimination policy in statute, thereby
reinforcing the importance of this policy. Specifically, this
bill :
1) Substitutes the concept of "Equal Employment
Opportunity" for the concepts of "affirmative action" and
"goals and timetables" throughout the bill; defines equal
employment opportunity as including non-discrimination,
consistent with Proposition 209.
2) Eliminates all references to goals and timetables,
consistent with the Connerly court decision.
3) Substitutes the phrase "racial, gender and ethnic
groups" for the outdated phrase "minorities and women,"
consistent with Proposition 209.
4) Conforms definition of "underutilization" to existing
federal law, as it pertains to the use of "relevant labor
force" rather than general population or general labor
force.
5) Eliminates statutory language that was used in the past
to justify preferential corrective actions, and clarified
that underutilization must be addressed by means consistent
with Proposition 209, such as by the broad, inclusive
recruitment identified in Connerly decision.
6) Clarifies the existing duties (referenced in other code
sections and existing regulations) of appointing powers,
notwithstanding Proposition 209, to have in place policies
that insure equal employment opportunity in the workplace,
including discrimination complaint and upward mobility
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procedures, as well as existing rights of employees to file
appeals should department procedures fail to address equal
employment opportunity concerns.
7) Clarifies that, consistent with Proposition 209 and
Connerly , underutilization under an equal employment
opportunity concept is addressed by the removal of non
job-related barriers to equal employment opportunity rather
than preference-based measures.
EXISTING LAW The State Civil Service Act requires each state
agency and department to establish an effective affirmative
action program with specified components, and to establish goals
and timetables designed to overcome any identified
underutilization of minorities and women in their respective
organizations. Existing law requires the State Personnel Board
to conduct specified activities in this regard. Portions of
these provisions have been held to be in violation of the
California Constitution and the United States Constitution.
FISCAL EFFECT : According to the State Personnel Board, this bill
will have little fiscal impact, since most of its provisions are
not new, and departments have been required to comply with them
for years. If departments fully comply with EEO requirements,
any perceived costs associated with this bill should be more
than offset by reducing the number of discrimination complaints
and lawsuits.
COMMENTS : According to the sponsor (State Personnel Board),
the purpose of this bill is to update state statutes to be
consistent with the California Constitution as interpreted by
the California courts, while clarifying that state departments
still have a legal responsibility to collect statistical
information on the composition of the state workforce to insure
equal employment opportunity (EEO) and non-discrimination
requirements in the state civil service.
In 2001, the California Court of Appeal ruled that provisions in
the state's affirmative action/equal employment opportunity
statutes requiring the establishment of annual employment goals
and timetables based on race and gender violated the California
Constitution, as amended by Proposition 209, and invalidated
them. This bill would repeal the invalidated statutory
sections.
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With the passage of Proposition 209 in 1996, state departments
became unsure as to the continuing validity of various EEO
requirements in the state civil service. Many state managers
have the mistaken attitude that Proposition 209 invalidated EEO,
resulting in a decline in a failure of departments to comply
with equal employment opportunity requirements. There have been
many examples of this, including the following:
Many departments have failed, in recent years, to fully
develop EEO plans and to inform their employees about written
procedures for filing complaints;
Many departments have failed to submit the results of their
annual workforce analysis and action plan to the SPB for
approval by the July 1st statutory deadline;
Departments have failed to comply with the statutory
requirement that the EEO Office report directly to the
department director and have reduced EEO staff;
Some departments are using untrained EEO investigators;
EEO investigations are taking far too long to meet the legal
requirement of completing investigations in a timely manner;
EEO investigative reports are inadequate or incomplete
Departments have failed to train their departmental managers
and supervisors in EEO issues;
The number of discrimination complaints from state employees has
increased since the passage of Proposition 209. Formal
discrimination complaints filed by state employees with their
department have increased from 387, reported by departments in
1995 prior to Proposition 209, to a high of 691, in 2001 after
passage of Proposition 209. This is a 78.6% increase in
workload and associated costs.
Arguments in Support:
The State Personnel Board supports this bill because it will
clarify existing law, strengthening California's merit civil
service system by better ensuring equal employment opportunity
and non-discrimination.
Arguments in Opposition
According to the American Civil Rights Coalition, this bill does
not differ significantly from AB 2275 which was vetoed by
Governor Schwarzenegger on September 29, 2004 This legislation,
while again trying to give the appearance of simply addressing
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the implementation of existing Equal Opportunity provisions,
continues to perpetuate language that suggests the state
workforce must be racially and ethnically statistically balanced
to the population in general. For example here are two of many
such clauses:
Section 19791 (b) reads as proposed, "'Underutilization' means
having a statistically significant, smaller percentage of
persons of a group in an occupation or at a level in state
agency than would reasonable be expected by the percentage
representation in the relevant labor force?"
Section 19791 (h) reads in part, "The statistical information
shall include specific data to determine the significant
underutilization of specific groups based on race, ethnicity,
gender, and disability."
This implies some kind of balancing that ensures the workforce
in question reflects the racial/gender makeup of the surrounding
community. This balancing could easily cross the almost
imperceptible line into quotas or "goals" as outlawed in the
Connerly v. State Personnel Board decision of 2001.
REGISTERED SUPPORT / OPPOSITION :
Support
American Civil Liberties Union
American Federation of State, County and Municipal Employees
California School Employees Association
California State Employees Association
Service Employees International Union
Opposition
American Civil Rights Coalition
Analysis Prepared by : Clem Meredith / P.E., R. & S.S. / (916)
319-3957