Over the last several years, virtually all levels of government have increasingly recognized the critical link between building a diverse, equitable, and inclusive workplace and effectively meeting the needs of the communities they serve—in particular, historically underserved and marginalized communities.
At the federal level, the Biden Administration has issued several Executive Orders that recognize the need for a systemic approach to identifying and addressing policies and programs “that serve as barriers to equal opportunity.” Most recently, in June 2021, President Biden signed Executive Order 14035, which in part, directs the Office of Personnel Management (in coordination with several federal commissions and executive councils and departments) to develop a federal Government-wide Diversity, Equity, Inclusion, and Accessibility (DEIA) Initiative and Strategic Plan. The DEIA plan must identify strategies to advance equitable policies and practices in areas including, but not limited to federal workforce recruitment, hiring, background investigations, performance reviews, and promotions, as well as take a data-driven approach to determine what federal agency practices result in inequitable employment outcomes.
At the state level, California is currently working in partnership with a staffing organization to source talent in a manner that helps the government “better reflect the diversity of the state – in geography, racial and ethnic representation, sexual orientation and gender identity, professional experience, and disability status.” Additionally, for decades, the California Community College system has promulgated and enforced robust equal employment opportunity (EEO) regulations that require districts to develop and implement EEO Plans and utilize external recruitments for all vacant positions.
Finally, at the local level, many cities, counties and other municipal agencies are examining their own recruitment and hiring practices, including by hiring EEO/Diversity, Equity, and Inclusion (DEI) officers to assist in these efforts.
The challenge that all California public agencies face is that they must navigate two competing obligations: their increased interest (and in some cases legal duty) to promote EEO/DEI in the workplace; and their duty to comply with the constitutional prohibition against discrimination and “preferential treatment” effectuated by Proposition 209. To engage in such balancing, those involved in agency recruitment and hiring should first understand the legal parameters and obligations that surround EEO hiring. Second, they should understand the range of proactive strategies that may operate within this legal framework. Each of these is discussed below.
The Legal Backdrop: Proposition 209 and the Legislative Responsive
Proposition 209, which voters passed in 1996, amended the California Constitution to now read:
“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.”
While discrimination against protected classes was unlawful long before passage of Prop. 209, the additional prohibition against “preferential treatment” has been broadly interpreted by the California Supreme Court to prohibit any consideration of protected status by a public agency in a hiring or other decision. This prohibition extends to practices that give special consideration to a protected group for the purpose of correcting an identified underrepresentation of that group. In other words, what was once called “benign” discrimination in the context of traditional affirmative action programs no longer exists; in California, there is no such thing as “benign” discrimination.
However, despite this prohibition against preferential treatment in public employment, the California Legislature has declared that Proposition 209 “does not prevent governmental agencies from engaging in inclusive public sector outreach and recruitment programs that, as a component of general recruitment, may include, but not be limited to, focused outreach and recruitment of minority groups and women if any group is underrepresented in entry-level positions of a public sector employer.” (Gov. Code, § 7400, et. seq.)
Further, the Legislature enacted legislation requiring public agencies to engage in general recruitment and outreach that includes outreach and recruitment of individuals who are “economically disadvantaged.” Given the timing of this legislation in relation to the passage of Prop. 209, it is likely that the Legislature enacted this mandate as a way to require employment practices that did not violate Prop. 209 while nonetheless improving outreach to minority communities—given the correlation between poverty and race in the United States.
It is against this legal backdrop that agencies should consider several best practices to correct systemic inequities and promote DEI, all while finding the best, most qualified candidates for the job.
Best Practices for Hiring the Best While Facilitating DEI in the Workforce
Promoting DEI in the workplace involves much more than just ensuring that agencies act defensively to protect against discrimination in their hiring practices. It requires agencies to be proactive, which involves: taking concrete steps to foster a workplace culture that genuinely values the benefits of a broadly diverse workforce; being willing to examine their own policies and practices for potential engrained and systemic biases; and implementing practices designed to preclude irrational factors from influencing institutional decisions and behavior.
Implementing lawful EEO/DEI strategies also requires an understanding of what EEO/DEI hiring is, and what it is not. EEO/DEI hiring is not about lowering standards in order to get a more diverse group of applicants to the table. Rather, EEO/DEI hiring is about eliminating the false predictors of performance that cause qualified candidates to be excluded from consideration. By engaging in these recommended practices, agencies can begin to improve workforce diversity by a) building highly diverse and qualified applicant pools; b) from which agencies use objective processes to select the most qualified candidates—without consideration given to protected status.
Finally, what all the suggested strategies below have in common is that they support a hiring process that:
- utilizes neutral practices that do not give preference based on protected status, but are designed to increase the diversity of qualified pools;
- from which the agency hires without consideration given to protected status;
- using a structured, fair process implemented by well-trained staff.
- Use Data to Inform Your Strategies. Two different policy considerations inform agencies’ interests in workforce diversification:
First, “EEO”—as the term suggests—is concerned with equality in employment. Thus, it is concerned with processes that are fair and equitable for job candidates. Data that informs EEO strategies looks at such things as the demographics of qualified applicant pools, as compared to who the agency invites to interview, as compared to who the agency ultimately selects for the position.
Second, “DEI”—as this term suggests—is concerned not just with the composition of the workforce, but a work culture that is equitable and inclusive. Additionally, it considers how workforce diversity affects equity in community access to services and employment. Data relevant to these interests include such things as comparing the demographics of the workforce to the community the agency serves.
Neither consideration should be looked at in isolation. For example, focusing exclusively on the demographics of a community to guide workforce composition could lead to employment discrimination—if the community itself is not diverse. That said, if an agency does not have a clear picture of its own workforce and community, it is ill equipped to design strategic initiatives that are designed to meet its employment and community service needs.
Data may also be used to identify the underrepresentation of protected groups in the workforce. Agencies can utilize various methods and measures to assess this kind of disproportionality. For example, the California Community College system compares the percentage of individuals in a particular protected group in a job category with their projected availability in the workforce from which the candidate pool is drawn.
Representation in the work force below eighty (80) percent of projected availability is considered underrepresentation. Agencies interested in designing focused recruitment programs should consider developing data that documents underrepresentation. As noted above, the Legislature expressly authorizes focused recruitment efforts where an agency has identified underrepresentation.
- Conduct Focused or Highly Inclusive Recruitments Informed by Your Data. First, it is important to distinguish “focused recruiting” from “targeted recruiting.” “Targeted” recruiting only recruits within the group from which you are hoping to hire—and is unlawful. “Focused” recruiting ensures that the position is advertised to the general population within the geographic area of the recruitment—and then also reaches out to members of the protected group that you want to be more represented in the workforce. For example, if a County Mental Health Department determined that African Americans were underrepresented among its psychologists, it would not be lawful to exclusively announce the position through the Association of Black Psychologists. However, it would be lawful to reach out to the ABP, in addition to publishing the job announcements through the agency’s regular general recruitment process.
Further, it is possible (and probably more common) that agencies identify an interest in increasing the representation of a particular group or groups in the workforce, without the ability to demonstrate statistical underrepresentation. For example, the demographics of the community the agency serves is not a relevant indicator of workforce underrepresentation—but might inform an agency’s policy interest in increasing the representation of a particular group in its workforce. Similarly, an agency may have data that is suggestive of underrepresentation, but is statistically inconclusive. In these situations, because there is not a clear indication of underrepresentation, the law does not expressly authorize focused recruitment. However, we think an agency could engage in what we call “highly inclusive” recruitments that recruit through general circulation platforms, and then also recruit through a wide array of specialized platforms.
- Train HR Employees, Hiring Committees, Hiring Managers and Other Decision Makers, Including Boards and Councils, Regarding EEO/DEI Practices. California law requires that all agency officials and employees receive anti-harassment training upon hire and every two years thereafter. In addition, employees and officials involved in hiring decisions, including Human Resources employees, members of selection committees, hiring managers, and board and council members should receive EEO training. Trainings should cover nondiscrimination laws and regulations; the benefits of workforce diversity; elimination of bias in hiring decisions; and best practices for selection committees and hiring managers.
- Update Job Announcements. In order to identify the most qualified candidates for any job, selection committees should work with Human Resources to review and update job announcements before posting a vacancy. Agencies should ensure that job announcements reflect the actual functions of the job and that the required and preferred qualifications accurately reflect the knowledge, skills, and abilities (KSAs) that are reasonable predictors of success for a particular role. For example, if a hiring manager wants to include “Master’s Degree preferred,” the agency should be sure that a Master’s is—in fact—a reliable predictor of performance. This is because the preference for a Master’s also may reduce the diversity of the pool. We especially encourage agencies to update job descriptions to ensure they capture the most current knowledge and skills relevant to the position. Agencies will find the greatest concentration of diverse, qualified candidates among those who are most recent to the field. Thus, a process that gives more recent entrants to the field an opportunity for consideration will have the tendency to diversify the qualified pool.
- Develop Agency-Wide Hiring Procedures for All Stages of the Hiring Process. Agencies should establish procedures that standardize hiring practices at each stage of the process, including the final round of interviews. Procedures should include developing guidelines for the review of written applications (paper screenings); appropriate interview questions that assess the KSAs of the candidates; and rating criteria and model answers for the interview questions. Rating criteria and model answers should only assess candidates’ answers based on the job-related criteria articulated in the applicable job description. Trained Human Resources employees should review interview questions developed by selection committees or hiring managers to ensure the questions do not implicate protected statuses.
- Focus on Workplace Culture. Ultimately, any agency’s best tool for recruitment and retention is to foster an inclusive, curious, and respectful work culture. Nontraditional candidates look for a work environment where they will be welcomed and respected. Thus attracting—and retaining—a diverse workforce hinges on creating the sort of work culture that serves to attract and retain the employees who contribute to an agency’s diversity.
The key factors essential to promoting an inclusive and respectful work culture include:
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- Visible buy-in from leadership and all agency stakeholders, including an agency’s executives, board or council, and union leadership;
- Demonstrated action through policy development; and
- Dedication of resources to agency-wide training.
Developing mentorship programs and sponsoring cultural events that celebrate workforce and community diversity can also assist in this process.
Agencies interested in examining their recruitment and hiring policies and practices to identify whether they serve as barriers to equal employment opportunities for qualified individuals should contact trusted legal advisers.
