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What is California Proposition 209?

Although California is a state with a reputation for strong employee protection laws prohibiting workplace discrimination, you may have heard of a state proposition that is often referred to as an "affirmative action ban." This ban is also known as California Proposition 209. But if California is known for protection against discrimination, how does an affirmative action ban work - and how does it affect workplace discrimination laws?

First, you should understand what exactly California Proposition 209 does and does not prohibit. According to the CA Secretary of State website, CA Prop 209 prevents both preferential treatment and discrimination in hiring practices based on race, ethnicity, sexuality, gender, religion or national origin. However, the proposition only affects hiring in public/government, education and public contracting. It also does not prevent awards from being granted to minority populations when those awards are specifically intendd to provide aid based on marginalization and need.

What this means is that California expects merit-based hiring for positions in these sectors, based solely on qualifications for the role and no other factors. While it prevents preferential selection of candidates to increase minority representation in roles as one might under affirmative action, it also prevents said minority candidates from being screened out based on discriminatory practices despite being qualified for the job. That means Prop 209 is less an affirmative action ban and more a different approach to preventing discrimination of any form in hiring practices.

Because of this, California workplace discrimination laws under the California Fair Employment and Housing Act typically only apply after an employee has already been hired. However, there can be significant overlap in cases regarding discriminatory hiring practices and cases regarding workplace discrimination, meaning overlap between Prop 209 and the California Fair Employment and Housing Act.

This information is provided only for reference purposes and does not constitute legal advice.

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