Among the 2020 ballot initiatives, California voters had the opportunity to weigh in on a 24-year ban on affirmative action in California.   In 1996, California voters approved the California Civil Rights Initiative (Proposition 209) which amended the California Constitution to prohibit the consideration of race, sex, color, ethnicity or national origin in public education, employment and contracting.  California became the first state to enact such a measure.   Proposition 16, which appeared on the 2020 ballot, would have repealed Proposition 209, meaning that public institutions could have considered race, gender or ethnicity as a positive element in admission, hiring, and contract decisions.   Californians voted against this measure, maintaining the current ban on affirmative action in the state. 

While Proposition 16 failed, California employers should bear in mind that the ballot measure applied to public employers and concerned the ability to use race, sex, color, ethnicity, or national origin as a positive factor.  The measure, whether or not it passed, did not alter the numerous safeguards in place, at both the state and federal level that protect against discrimination.  At the federal level, Title VII of the Civil Rights Act of 1964 specifically prohibits employers from discriminating on the basis of race, color, religion, sex, and national origin.  California has adopted even broader protections for employees, earning its title as the most employee-friendly state in the nation.  The California Constitution and state statutes offer a broad range of protections against arbitrary discrimination based on protected characteristics.  Arguably the strongest protection against employment discrimination comes from the California Fair Employment and Housing Act (“FEHA”), which applies to both private and public employers.  The FEHA prohibits employers from discriminating against job applicants and employees because of a protected category, or retaliating against them because they have asserted their rights under the law.  Additionally, for larger employers (50 or more employees) with qualifying federal contracts or subcontracts, there are additional affirmative action requirements under the Rehabilitation Act of 1973, Executive Order 11246, and the Vietnam Era Veterans’ Readjustment Assistant Act (“VEVRA”). 

Despite the defeat of Proposition 16, California remains an employee-friendly state with a host of broad protections and nuances that employers must carefully consider in making business decisions.