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Such circumstances could arise based upon evidence of discrimination in state contracting that cannot be resolved through race- or sex- neutral means.
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I-200 prohibits only situations in which government uses race or gender to select a less qualified contractor over a more qualified contractor.We therefore draw three conclusions in response to your first question: I-200 conditionally prohibits the former, with important exceptions, but does not prohibit the latter. I-200 draws a distinction between (1) preferences that have the effect of using race or gender to select a less qualified contractor over a more qualified contractor, and (2) race- or sex-conscious measures that do not have that effect. Initiative 200 (I-200) does not categorically prohibit all race- and sex-conscious actions regarding state contracting. Does the answer to the first question depend on whether the contracts at issue are being awarded by a state agency that receives federal funds and is therefore subject to Title VI of the federal Civil Rights Act of 1964?ġ. Does Initiative 200 prohibit the State from implementing race- or sex-conscious measures to address significant disparities in the public contracting sector that are documented in a disparity study if it is first determined that race- and sex-neutral measures will be insufficient to address those disparities?Ģ. The conclusion that an agency may employ a preference when necessary to do so in order to avoid the loss of eligibility for federal funds necessarily depends upon the agency’s receipt of federal funds in that program or some other program.ĭirector, Department of Enterprise Servicesīy letter previously acknowledged, you have requested our opinion on the following questions:ġ. The conclusion that agencies may use preferences based on race or sex in order to remedy sufficiently documented discrimination in state contracting also applies without regard to whether the agency receives federal funds. The conclusion that Initiative 200 allows race- or sex-conscious measures that do not amount to preferences applies without regard to whether the agency receives federal funds. The conclusions summarized above do not solely depend on whether an agency receives federal funds.State agencies may also employ race- or sex-based preferences when necessary to do so in order to avoid losing eligibility for programs providing federal funds. In narrow circumstances, an agency may be allowed to use a narrowly tailored preference based on race or sex when no other means is available to remedy demonstrated discrimination in state contracting. The measure allows the use of measures that take race or gender into account in state contracting without elevating a less qualified contractor over a more qualified contractor. Initiative 200 does not categorically prohibit all uses of race- or sex-conscious measures in state contracting.
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LAW AGAINST DISCRIMINATION-AFFIRMATIVE ACTION-DISCRIMINATION -CONTRACTS-CONTRACTORS AND SUBCONTRACTORS-Use Of Race- Or Sex-Conscious Measures Or Preferences To Remedy Discrimination In State Contracting