Oregon Advisory Opinions February 26, 1982: OAG 82-17 (February 26, 1982)

OAG 82-17.

We are asked whether the Chancellor of the Oregon Department of Higher Education (department) is subject to affirmative action requirements in the filling of positions on his staff, including that of Associate Vice Chancellor. We note that both federal and state statutes and constitutional provisions bear upon this question.

The possibly applicable federal requirements concerning affirmative action are found in Title VII of the Civil Rights Act of 1964, providing for equal employment opportunities; Executive Order 11246, as amended, applying to federal contractors; the supplementary federal rules; and the Thirteenth and Fourteenth Amendments.

Title VII has been applicable to the department since 1972. 42 USC 2000e(a), (b) (sec 701 (a) and (b));(fn1) See H.R. Rep. No. 238, 92d Cong., 2d Sess., reprinted in [1972] U.S. Code Cong & Ad News 2137, 2152-2155; H.R. Conf. Rep. No. 899, 92d Cong., 2d Sess., reprinted in [1972] U.S. Code Cong & Ad News 2179, 2180. Certain state employes are exempted from Title VII protec

tions, however. 42 USC 2000e(f) provides:

"The term 'employee' means an individual employed by an individual employed by an employer, except that the term 'employee' shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policymaking level or an immediate adviser with respect to the exercise of the constitutional or legal powers of office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, government agency or political subdivision."

This provision is intended to exempt elected officials, their staffs and advisers, and their policymaking appointees. No employe of the Department of Higher Education, not even its Chancellor, is appointed by an elected official. ORS 351.070(1)(a), 351.075(1), 351.085(6). We therefore conclude that the protections of Title VII, as it has been construed by the courts, appears to extend to every employe of the department.

Title VII is designed to prevent unlawful employment practices and to provide remedies when they occur. The unlawful employment practices under Title VII are listed in 42 USC 2000e-2 and 2000e-3 (secs 703 and 704). 42 USC 2000e-2(a), (sec 703(a)), provides:

"It shall be an unlawful employment practice for an employer--

"(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or

"(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin."

It is not an unlawful employment practice to fail to employ an affirmative action hiring plan.

We note that affirmative action requirements may be imposed under Title VII as remedies for unlawful employment practices. Alexander v. Gardner-Denver Co., 415 US 36, 44-45 (1974); cf. Davis v. County of Los Angeles, 566 F2d 1334, 1342-1343 (9th Cir 1977), vacated, 440 US 625 (1979) (42 USC sec 1981 case listing numerous authorities supporting use of affirmative action as a Title VII remedy). Where no unlawful employment pratice has been proven, however, Title VII remedies may not be imposed. Furnco Construction Corp. v. Waters, 438 US 567, 578 (1978). No court has yet imposed such remedies on the Chancellor's Office.

Affirmative action is required under federal Executive Order 11246 as amended. Section 202 of the executive order, as amended, provides in part:

"Except in contracts exempted in accordance with Section 204 of this Order, all Government contracting agencies shall include in every Government contract hereafter entered into the following provisions:

"During the performance of this contract, the contractor agrees as follows:

"'(1) The contractor will not discriminate against any employe or applicant for employment because of race, color, religion, sex, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employes are treated during employment, without regard to their race, color, religion, sex or national

origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion, or transfer; recuitment or recruitment advertising; . . . and selection for training, including apprenticeship. . . .

"'. . . .

"'(7) The contractor will include the provisions of paragraphs (1) through (7) in every subcontract or purchase order . . . so that such provisions will be binding upon each subcontractor or vendor. . . .'"

The requirements of the executive order extend only to federal contractors, their subcontractors, and their suppliers. The Chancellor's office has no federal contracts, nor is it a subcontractor or supplier of a federal contractor. We understand, however, that some institutions in the Department of Higher Education have federal contracts.(fn2) However, these contracts do not subject the entire Department of Higher Education to the requirements of the executive order. Section 204 of the executive order provides in part:

". . . The Secretary of Labor may also provide, by rule, regulation, or order, for the exemption of facilities of a contractor which are in all respects separate and distinct from activities of the contractor related to the performance of the contract: Provided, That such exemption will not interfere with or impede the effectuation of the purposes of this Order: And provided further, That in the absence of such an exemption all facilities shall be covered by the provisions of this Order." (Emphasis in original.)

The Secretary of Labor has promulgated 41 CFR sec 601.5(a)(4), which provides in part:

"(4) Contracts with State or local governments. The requirements of the equal opportunity clause in any contract or subcontract with a State or local government (or any agency, instrumentality or subdivision thereof) shall not be applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the contract or subcontract. . . ." (Emphasis in original.)

Because the Chancellor's office has no federal contracts and does not participate in work on or under the federal contracts held by institutions within the department, we conclude that the Chancellor's office is not subject to the affirmative action requirements of Executive Order 11246.

Finally, we note that the Thirteenth Amendment of the United States Constitution bans slavery and involuntary servitude, except as punishment for crime. To enforce this provision, Congress enacted 42 USC sec 1981, guaranteeing to all persons within the jurisdiction of the United States the equal right to make and enforce contracts. The Fourteenth Amendment provides that no state shall deny to any person within its jurisdiction the equal protection of the laws.

These provisions prohibit the department from discriminating invidiously between individuals or groups. It is not sufficient for relief under these provisions, however, that personnel policies may have a disparate impact. A racially discriminatory purpose must be found. Washington v. Davis, 426 US 229, 239-240 (1976). These provisions do not require affirmative action.(fn3) We conclude that federal law imposes no affirmative action obligations upon the Chancellor's office.

The possibly applicable state requirements concerning employment discrimination are Art I, sec 20 of the Oregon Constitution, and ORS 243.305 and the executive orders issued pursuant thereto. Oregon Const Art I, sec 20 provides:

"No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens."

The Oregon Supreme Court has said:

"'The controlling principles which guide the courts in determining questions of alleged unconstitutional discrimination or class legislation are the same whether it is the equal protection clause of the Fourteenth Amendment of the Constitution of the United States which is involved, or the privileges and immunities provision in Art. I, [sec] 20 of the Oregon Constitution. . . .'" School District No. 12 v. Wasco County, 270 Or 622, 628, 529 P2d 386 (1974) (quoting Plummer v. Donald M. Drake Co., 212 Or 430, 437, 320 P2d 245 (1958)).

See generally State v. Clark, 291 Or 231, 630 P2d 810 (1981) (reviewing the history of Or Const Art I, sec 20).

Article I, sec 20 of the Oregon Constitution prohibits the Chancellor's office from discriminating invidiously; but like its federal counterpart, it does not impose an affirmative action obligation.

ORS 243.305, enacted in 1975, established a state policy of affirmative action to eliminate the effects of discrimination in employment and advancement regardless of race, religion, national origin, age, sex, marital status, or a physical or mental handicap not shown to prevent adequate performance of available work. It provides:

"It is declared to be the public policy of Oregon that state government shall be a leader among employing entities within the state in providing to its citizens and employes, through a program of affirmative action, fair and equal opportunities for employment and advancement regardless of race, religion, national origin, age, sex, marital status, or physical or mental handicap not shown to prevent adequate performance of available work. 'Affirmative action' means a method of eliminating the effects of past and present discrimination, intended or unintended, that are evident or indicated by analysis of present employment patterns, practices and policies."(fn4)

The 1975 Legislature also created the position of Director of Affirmative Action to implement this policy. ORS 243.315.

Governor Straub issued Executive Order 75-21 on October 7, 1975, as a step toward implementing the state's affirmative action policy. It ordered and directed that all state agencies develop clear, written affirmative action plans to carry out this policy and to insure equal employment opportunities at all levels of state government.

On September 12, 1979, Governor Atiyeh issued Executive Order 79-22, which further defined the state affirmative action program and the duties of the state Director of Affirmative Action. The executive order states that:

"3. The affirmative action program shall serve as the instrumentality by which state government, its agencies and institutions, will recruit, hire, train and promote those applicants and employees of the protected classes.

". . . .

"5. The affirmative action program shall require and insure equality in employment in the State of Oregon, and provide for clearcut standards and criteria for hiring, promotion and termination."

The Governor and the Director of Affirmative Action signed and published a state-wide affirmative action plan on October 31, 1979. The plan, in part, provided:

"The Affirmative Action Plan is the employment policy of State Government and requires:

". . . .

"9. That personnel policies and practices in recruitment and selection be examined and evaluated to assure a fair and open process;

". . . .

"12. That evaluation of each agency's affirmative action program occur regularly by this office to assist in identifying areas of non-compliance."

We conclude that ORS 243.305 and the executive orders and statewide plans issued pursuant to it clearly subject the Chancellor's office to affirmative action requirements in the filling of staff positions.

We are next asked what, if any, recruitment activities are mandated by these affirmative action requirements. The executive orders and state-wide affirmative action policy statements contain no explicit recruitment requirements. The task of translating the vague, general requirement of affirmative action into procedures for day-to-day application is delegated to the individual state agencies.

Even before ORS 243.305 was enacted, the department adopted an affirmative action program. The program, adopted March 30, 1973, lists one of the affirmative action objectives of the Chancellor's office of the department as being:

"To eliminate the concept of male or female job classifications through affirmative efforts in the recruitment, placement, promotion and transfer of qualified women applicants and employees into positions from which they have traditionally been excluded."

Despite the directives of the Straub and Atiyeh executive orders and the 1979 state-wide plan, the department has yet officially to bring its 1973 plan up to date. However, a draft revision of the department's affirmative action program was prepared in 1977-1978. It noted disparities in the utilization of minorities and women, especially in higher-level positions. The draft states:

"The utilization analysis for centralized activities shows that there is some significant (more than .5 FTE) underutilization of both females and minorities evidenced throughout the categories in each of the divisions. The most prominent areas of underutilization exist, however, in the higher salary ranges of the unclassified positions. Two factors are primarily responsible for this problem. One is the extremly low turnover rate in these positions and the other is the low number of qualified females/minorities who have applied for these positions." Id. at 82.

Because of low turnover and high disparity in the higher-paid unclassified positions, and because of the difficulty of attracting qualified female and minority applicants

A memorandum, dated January 16, 1981, of the Chancellor to the Board of Higher Education, summarizes recent hiring by the Chancellor's office:

"The policy and practice of the Chancellor's Office is to recruit as widely as is feasible for each position unless circumstances--including the opportunity to promote--suggest otherwise. The following lists the appointments made to professional positions in the Chancellor's Office in the last half dozen years: (Position, Search, Appointee)

Compliance Officer (Temporary), Limited, Minority Male; Compliance Officer, National, White Female; Management Studies Coordinator, National, White Male; Management Studies Coordinator, Regional, White Male; Research Analyst,(fn*) Regional, White Female; Administrative Intern, None, White Female; Administrative Intern, Regional, None--Position Frozen; Assistant to Vice Chancellor, None, White Male; Assistant Budget Director, National, White Female; High School Relations Counselor, Limited, White Female; Vice Chancellor for Administration, National, White Male; Acting Vice Chancellor for Academic Affairs, None, White Female; Vice Chancellor for Academic Affairs, National, Pending.

* Successful candidate for this position was identified in formal search for similar position being filled concurrently."

The foregoing policy, practice and record of recruitment searches and appointments are evidence of effort by the Chancellor's office to comply with the recruitment objectives of the state-wide and the department affirmative action plans. We cannot say that more is required under these plans.

Thus, we conclude that neither state nor federal affirmative action laws or rules, nor the United States or Oregon Constitution, require a recruitment search for the filling of each position on the Chancellor's staff. He may fill a position without a recruitment search, if such limited procedure is neither overtly discriminatory nor part of a pattern of neutral-appearing action or inaction having a cognizable discriminatory result.

"In the present case appellant has failed to prove that a pattern of discrimination