HomeMy WebLinkAbout6B - SB194 - Anti-Affirmative Action Bill~
Memo: SB194 - Anti-
Affi~mation Action
Bill
•
Agenda Item VI-B
~
i
March 10, 2004
TO: Auman Relations Commission
rR: Carmen Atilano
RE: Colorado Civil Rights Act (SB 194)
The City Counc~l has asked that the HRC review and make a recommendarion for the
Apr~l $ Council meetmg regardmg Senate Bill 194, Colorado Civil Rights Act. This
matter has been placed on your March 15 meetmg agenda as an Achon Item. The b~ll ~s
attached for your review
Colorado State Senator Ed Jones and State Representatrve Shawn Mrtchell have
mtroduced the Colorado C~vil R~ghts Act (SB 194), legislat~on that would ban the use of
affirmanve action programs and pol~cies m public h~rmg, contracting, and admiss~ons to
public colleges and univers~t~es The bill would require state and local governments, as
well as public school d~str~cts and universrt~es, to adopt race-neutral language for all
hiring and admissions prachces.
. Opponents to the bill contend that affirmanve act~on programs seek to mcrease the
recrurtment, promot~on, retention, and on-the ~ob trammg opportumt~es m employm
for women, mmor~t~es and others and ~emove barriers to admission to educational
mstitut~ons for these populahons. Because of the long h~story of discrimmation bas
sex and race, most affirmat~ve action programs have been directed towards improv
employment and educat~on opportunrties for women and mmorities
Attachment:
Colorado Crvil Rights Act (SB 194)
ent
ed on
ing
~
Second Regular Session
• Sixty-fourth General Assembly
~ STATE OF COLORADO
INTRODUCED
LLS NO 04-0897 Ol Ed DeCecco SENATE BILL 04-194
SENATE SPONSORSHIP
Jones, Dyer, McElhany, May R, Cauns, Andrews, Arnold, Chlouber, Entz, Evans, Johnson
S., Kester, Lambom, Owen, Taylor, and Teck
HOUSE SPONSORSHIP
Mitchell, Harvey, Brophy, Cadman, Crane, Hefley, Kmg, Lee, May M, and Wiens
Senate Committees
Education
•
House Committees
A BILL FOR AN ACT
lO1 CONC~RNING THE REQUIREMENT 1'IIAT A PUBLIC ENTITY TREAT
lO2 P~OPL~ EQUALLY IN THE OPERATION OF CF,RTAIN PUBLIC
1~3 PUNCTIONS~ AND, IN CONNECTION TIIEREWITH~ CREATING THE
1 O4 "COLORADO CML RIGHTS ACT".
Bill Summary
~
(Note: This summary applies to this bill as introduced and does
not necessarily re,~lect any amendments that may be subsequently
adopted.)
Enacts the "Colorado Civil Rights Act° (Act), which prohibits a
public entity from discrimmatuig against, or granting a preference to, any
individual or group on the basis of race, sex, color, ethnicity, or national
origm m the operation of public employment, public education, or public
contracting. Limits the Act so that it does not apply to cases where an
~uhailipg dep,ot'e';`~F1QT.~SE am~pdnaent, Double underlmme denotes SENATE amendment
Cnpita/ /etters +r~dmate new material to be added to e.clsdng sfatufe.
Dashes ~8roiagd the words md:cale deletlons jrom ezlsHng statute.
otherwise lawful and bona fide qualification based on sex is reasonably .
necessary to the normal operarion of public employment, public
education, or pubhc contracting.
Establi shes that the Act shall not be interpreted as invalidating any
court order or consent decree that is m force as of the effective date of
this section or prohibiting action that must be taken to establish or
maintaui ehgtbility for any federal program, where meligibility would
result m a loss of federal funds to a public entity.
Establ~shes that the remedies for a violation of the Act in the area
of public employment shall be the remedies currently available for
discriminatory or unfair employment practices. Estabhshes the right to
damages or equitable rehef for all other violations ofthe Act, and pernuts
the preva~ling party to receive reasonable attorney fees and costs in an
act~on for such damages or relief.
Makes confomung amendments to ensure that there is no
discnnunatmg against, oz in~a~reference t~ any individual or
group on the basis of race, sex, color, ethnicity, or nahonal origin in the
operation of public employment, public education, or public contracting.
Defines "public entity" to mean the state of Colorado, any city,
county, city and county, institution of higher education, school district,
special district, or any other political subdivision or governmental
insm~mentality of or wrthin the state. •
Makes legislative declazations.
Be at enacted by the General Assembly of the State of Colorado •
SECTION 1. Title 24, Colorado Revised Statutes, is amended
BY THE ADDITION OF A NEW ARTICLE to read:
4 ARTICLE 115
Colorado Civil Rights Act
6 24-115-101. Short title. THIS ARTICLE SHALL BE KNOWN AND
7 MAY BE CITED AS THE "COLORADO CIVIL RIGHTS ACT".
24-115-102. Legislative declaration. TxL GEt~rExnI, ASSEMBLY
9 HEREBY FINDS AND DECLARES THAT THE DIFFERENTIAL TREATMENT OF
10 PERSONS BY REASON OF THEIR IMMiJTABLE CHARACTERISTICS, SUCH AS
11 RACE, SEX, COLOR, ETHNICITY, OR NATIONAL ORIGIN, IN THE OPERATION
12 OF GOVERNMENT IS ANTITHETICAL TO THE PRINCIPLE OF EQUAL ~
-2- SB04-194
• 1 PROTECTION OF LAW, AND THAT PROHIBITING DIFFERENTIAL TREATMENT
2 FROM PUBLIC EMPLOYMENT, PUBLIC EDUCATION, AND PUBLIC
3 CONTRACTING WOULD BENEFIT ALL OF THE CITIZENS OF THIS STATE. THE
4 G~N~RAL ASSEMBLY FURTH~R FINDS AND DHCLARES THAT PROHIBITING
S SUCH DIFFERENTIAL TREATMENT IN ALL GOVERNMENT OF OR WITHIN THE
6 STATC IS A MATTER OP STATEWIDE CONCERN.
7 24-I15-]03. Discrimination or preferential treatment
8 pro}iiUited. ~1~ NOTWITHSTANDING ANY PROVISION OF LAW TO THE
S CONTRARY, A PUBLIC ENTITY SHALL NOT DISCRIMINATE AGAINST, OR
I O GRANT A PREFERENCE TO, ANY INDNIDUAL OR GROUP ON THE BASIS OF
11 RAC~,SBX,COLOR,ETHNICITY,ORNATIONALORIGININTHEOPERATIONOF
12 PUBLIC EMPLOYMENT, PUBLIC EDUCATION, OR PUBLIC CONTRACTING.
13 (2~ THIS SECTION SHALL NOT APPLY IN CASES WHERE AN
~ 14 OTH~RWISE LAWFUL AND BONA FIDE QUALIFICATION BASED ON SEX IS
IS REASONABLY NECESSARY TO THE NORMAL OPERATION OF PUBLIC
16 EMPLOYMENT, PUBLIC EDUCATION, OR PUBLIC CONTRACTING.
17 (3~ NOTHING IN THIS SECTION SHALL BE INTERPRETED AS
18 INVALIDATING ANY COURT ORDER OR CONSENT DECREE THAT IS IN FORCE
19 AS OP 7'HE EFFECTIVE DATE OF THIS SECTION.
20 (4~ NOTHING IN THIS SECTION SHALL BE INTERPRETED AS
21 PROHIBITING ACTION THAT MUST BE TAKEN TO ESTABLISH OR MAINTAIN
22 ELIGIBILITY FOR ANY FEDERAL PROGRAM, WHERE INELIGIBILITY WOULD
23 RESULT IN A LOSS OF FEDERAL FUNDS TO A PUBLIC ENTITY.
24 ~S~ AS USED IN THIS ARTICLE, UNLESS THE CONTEXT OTHERWISE
2$ REQUIRES, "PIJBLIC ENTITY" MEANS THE STATE OF COLORADO, ANY CITY,
2E COUNTY, CITY ANDCOUNTY, INSTITUTION OF HIGHEREDUCATION, SCHOOL
. 27 DISTRICT, SPECIAL DISTRICT, OR ANY OTHER POLITICAL SUBDMSION OR
-3- SB04-194
1 GOVERNMENTAL INSTRUMENTALITY OF OR WITHIN THE STATE.
2 24-115-104. Remedies - enforcement by aggrieved persons.
3 (1) (a) IF A PUBLIC ENTITY VIOLATES SECTION 24-115-103 IN THE
4 OPERATION OF PUBLIC EMPLOYMENT, THEN THE REMEDIES SET FORTH IN
S PARTS 3 AND 4 OF ARTICLE 34 AND PART 1 OF ARTICLE 50 OF THIS TITLE
6 SHALL BE THE SOLE REMGDIES AVAILABLE TO THS AGGRIEVED PERSON.
'] (b~ FOR ALL OTHER VIOLATIONS OF SSCTION 24-115-103, AN
8
9
10
11
12
13
14
1$
16
17
18
19
20
21
22
23
24
2S
26
27
AGGRIEVED PERSON SHALL HAVE A CIVIL CAUSE OF ACTION.
(2~ IN AN ACTION COMMENCED PURSUANT TO PARAGRAPH ~b~ OF
SUBSECTION (1~ OF THIS SECTION, IF A COURT DETERMINES THAT A
VIOLATION OF SECTION 24-115-103 HAS OCCURRED OR IS ABOUT TO
OCCUR, THE COURT MAY AWARD TO AN AGGRIEVED PERSON ACTUAL
DAMAGBSANDINJUNCTIVEOROTHEREQUITABLERELIEF. ACOURT,INITS
DISCRETION, MAY AWARD THE PREVAILING PARTY REASONABLEATTORNEY
FEES AND COSTS.
(3~ AS USED IN THIS SECTION, UNLESS THE CONTEXT OTHERWISE
REQUIR~S, "AGGRIEVED PERSON° MEANS ANY PERSON WHO CLAIMS TO
HAVE BEEN INJURED BY A VIOLATION OF SECTION 24-11 S-1 O3 OR BELIEVES
THAT HEOR SHE WILL BE INJURED BY A VIOLATIONOF SECTION 24-115-103
THAT IS ABOUT TO OCCUR.
24-115-1~5. SCVCI'ablllty. IFANYPROVISIONOFTHISARTICLEOR
THE APPLICATION THEREOF TO ANY PERSON OR CIRCUMSTANCES IS HELD
INVALID, SUCH INVALIDITY SI-IALL NOT AFFECT OTHER PROVISIONS OR
APPLICATIONS OF THIS ARTICLE THAT MAY BE GIVEN EFFECT WITHOUT THE
INVALID PROVISION OR APPLICATION, AND TO THIS END THEPROVISIONS OF
THIS ARTICLE ARE DECLARED TO BE SEVERABLE.
SECTION 2. Repeal. 22-2-124 (6) (b), Colorado Revised
~
-4- SB04-194
~
•
~
1 Statutes, is repealed as follows:
2 22-2-124. Family literacy education grant program -
3 rule-making - repeaL (6) The state board shall consider, at aminimum,
4 the followmg factors when evaluatmg applications for grants through the
5 family l~teracy education grant program:
6 (b)
7
8 ,
9 SECTION 3. 23-1-108 (1) (fl, Colorado Revised Statutes, is
10 amended to read:
11 23-1-108. Duties and powers of the commission with regard to
12 systemwide planning. (1) The commiss~on shall develop and submit to
13 the governor and the general assembly a master plan for Colorado
14 postsecondary educarion. In developing the master plan, the commission
15 shall examme the statewide expectations and goals specified in section
16 23-13-104andrecommendthatthegeneralassemblyamendthestatewide
17 expectarions and goals if necessary. Following amendment of the
18 statewide expectat~ons and goals, the commission shall design the master
19 plan to assure achievement of the statewide expectations and goals in the
20 most timely, effic~ent, and effective manner. This plan shall recognize
21 the importance of private and proprietary mstitutions and the role and
22 relationship of elementary and secondary education in the state, though
23 their mclusion in the plan in no way implies control or state authonty
24 over their operat~ons. The commission, after consultation with the
25 governuig boards of institutions and as a part of the master planning
26 process, shall have the authority to:
27 (fl Adopt statewide affirmative action policies for the
-5-
SB04-194
.
1 commission, governingboards, and state-supported instituhons ofhigher
2 eduC8t10ri. THE POLICIES ADOPTED BY THE COMMISSION SHALL COMPLY
3 WITHTHEPROVISIONSOFARTICLE1150FTITLE24,C.R.S. Responsibility
4 for implementation of such policies shall be reserved to the governing
5 boards.
6 SECTION 4. 24-30-1403 (2), Colorado Revised Statutes, is
7 amended to read:
8 24-30-1403. Professional services - listings - preliminary
9 selections. (2) Foreachproposedpro~ectforwtuchprofessionalservices
10 are required, the prmcipal representative of the state agency for which the
11 pro~ect is to be done shall evaluate current statements of qualifications
12 and performance data on file with the department and shall conduct
13 discussions with no less than three persons regarding their qualifications,
14 approaches to the pro~ect, abilities to furnish the required professional •
15 services, anticipated design concepts, and use of alternative methods of
16 approach for fumishing the required professional services. The principal
17 representative shall then select, in order of preference, no less than three
18 persons ranked in order and deemed to be most highly qualified to
19 perform the required professional services after considenng, and based
20 upon, such factors as the ability of professional personnel, past
21 performance, willmgness to meet time and budget requirements, location,
22 current and projected work loads, a,rm the volume of work previously
23 awarded to the person by the state agency,
24 , with the object of
25 effecting an equitable distribution of contracts among qualified persons
26 as long as such distribution does not violate the principle of selection of
27 the most highly qualified person. In selection as mentioned in this ~
-6- SB04-194
~ 1 section, Colorado firms shall be ~ven preference when qualifications
2 appeaz to be equal. Al] selections are subject to approvat by the pruicipal
3 representative, and all contracts between the pnncipal representative and
4 such selected professionals shall be consistent with appropriation and
5 legislat~ve mtent.
( SECTION 5. 24-34-104 (9) (b) (VIII), Colorado Revised
7 Statutes, is amended to read:
g 24-34-104. General assembly review of regulatory agencies and
9 Tunctions for termination, continuation, or reestaUlishment. (9) (b) In
10 such heanngs, the determmation as to whether an agency has
11 demonstrated a publ~c need for contmued existence of the agency or
12 funchon and for the degee ofregulation rt practices shall be based on the
13 following factors, among others:
• 14 (VIII) Whether the scope of practice of the regulated occupaUon
15 contnbutes to the optimum utihzation of personnel and whether entry
16 requirements encourage affirmative achon WHILE COMPLYING WITH THE
17 PROVISIONS OF ARTICLE 11 S OF THIS TITLE;
lg SECTION 6. 24-34-402 (1), Colorado Revised Statutes, is
19 amended BY THE ADDITION OF A NEW PARAGRAPH to read:
2p 24-34-402. Discriminatory or unfair employment practices.
21 ( I) It shall be a discriminatory or unfa~r employment practice:
22 (1~ FOR ANY EMPLOYER THAT IS A PUBLIC ENTITY, AS DEFINED BY
23 SEC'rtorr 24-115-103 (5), TO GRANT A PREFERENCE TO AN EMPLOYEE ON
Z4 THE BASIS OF RACE, SEX, COLOR, ETHNICITY, OR NATIONAL ORIGIN IN THE
ZS OPERATION OF PUBLIC EMPLOYMENT, AS PROHIBITED BY SECTION
26 24-115-103.
~ 2'7 SECTION 7. 24-49.5-103 (1) (c), Colorado Revised Statutes, is
_~_ SB04-194
1 amended to read: .
2 24-49.5-103. Authority and responsibility of the director.
3 (1) In furtherance of the policy expressed in section 24-49.5-101, the
4 director shall:
5 (c) Promote minority business part~cipation in federal, state, and
6 local procurement, purchasing, financing, and contracting, m accordance
7 wrth existmg federa] and state statutes, SO LONG AS THE PROMOTION
8 COMPLIES WITH THE PROVISIONS OF ARTICLE 11$ OF THIS TITLE;
9 SECTION S. 24-50-101 (3) (e), Colorado Revised Statutes, is
10 amended to read:
11 24-50-101. Short title - legislative declaration - terminology.
12 (3) (e) The state personnel director shall establish and adininister an
13 affumative action progam
14 ~ , ,
15 , ~LnTEn To persons covered by
16 part 4 of article 34 of tlus title, SO LONG AS THS AFFIRMATIVE ACTION
1 ~ PROGRAM COMPLI~S WITH THE PROVISIONS OF ARTICLE 11 S OF THIS TITLE.
18 SECTION 9. Repeal. 24-50-141 (1) and (2), Colorado Revised
19 Statutes, are repealed as follows:
20 24-50-141. Rules and regulations - limitations -~affirmative
21 action corrective remedies - implementatioa (1)
22
23
24
25
26 .
27 , , ~
-8- SB04-194
. 1
2 ,
3
4 .
5
6
7 .
8
9 ,
10
11
12 , , ~
13 ' >
• 14
15
16 .
17 (2)
18 ' ,
19
20 ~ ,
21 , , >
22 ,
23 , ,
24
25
2V I"~~_ "_ _ __ `_A _ '_'_L .1..~...
)
~ 27 SECTION 10. 32-9-119.5 (3) (d), Colorado Revised Statutes, is
-9- SB04-194
1 amended to read:
2 32-9-119.5. Competitiontoprovidevehicularservicewithinthe
3 regional transportation district. (3) (d) Any qualified provider may
4 respond to any request far proposals. Wx[LE COtvmLYING wITH THE
S PROVISIONS OF ARTICLE ~ I S OF TITLE 24, C.R.S., the district sha11 ensure
6 that disadvantaged busmess enterpnses, as defined in part 23 of title 49
7 of the code of federal regulatrons, as amended, have the greatest possible
8 opportunity to respond. Any response shall be timely if received by the
9 district withm the time specified in its request for proposals, which shall
10 not exceed mnety days nor be less than forty-five days. Each response
11 shall specify the least cost to the district required by the provider
12 submrttmg the proposal to provide the services descrzbed in the request
13 for proposals. If it determines the pubhc interest requires such, the
14 district retams the nght to enter mto noncompetitively awarded contcacts
15 on an intenm basis for the tune needed to implement the request for
16 proposal process.
17 SECTION 11. 32-15-106 (5) (b) (I) (B) and (5) (b) (II), Colorado
18 Revised Statutes, are amended to read:
19 32-IS-106. Board of directors - powers and duties. (5) In
20 carrying out rts duties m connection with the operation of the'stadium, the
21 board shall duly consider:
22 (b) That, for all food and beverage concession contracts, due
23 consideration be given to persons or businesses that are authorized to
24 transact busmess in Colorado and that:
25 (I) (B) Maintam a place of business m Colorado and that have
26 filed unemployment compensationreports m at least seventy-five percent
27 of the eight quarters immediately before commencement of the contract;
-10-
SB04-194
~
•
e
~ 1 er Arm
2 (II)
,
3 SECTION 12. Applicability. This act shall apply to action by
4 a pubhc ent~ty taken on or after the effechve date of this act.
5 SECTION 13. Safety clause. The general assembly hereby
6 finds, deternunes, and declares that this act is necessary for the immediate
7 preservation of the publ~c peace, health, and safety.
~
~
-11- SB04-194