Johnson v. Transportation Agency Primary Source eText

Primary Source

Road dispatcher Diane Joyce won a landmark 6-3 Supreme Court ruling for affirmative action. The decision upheld Santa Clara County, California's right to give her a promotion over an arguably more qualified man. © BETTMANN/CORBIS. REPRODUCED BY PERMISSION Road dispatcher Diane Joyce won a landmark 6-3 Supreme Court ruling for affirmative action. The decision upheld Santa Clara County, California's right to give her a promotion over an arguably more qualified man.. © BETTMANN/CORBIS. REPRODUCED BY PERMISSION Published by Gale Cengage © BETTMANN/CORBIS. REPRODUCED BY PERMISSION

Supreme Court decision

By: William J. Brennan and Antonin Scalia

Date: March 25, 1987

Source: Brennan, William J. and Antonin Scalia. Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616. Available online at http://laws.findlaw.com/us/480/616.html; website home page: http://laws.findlaw.com (accessed April 20, 2003).

About the Authors: William Brennan (1906–1997) received his law degree from Harvard. After serving as a trial court judge, then an appellate court judge, he was appointed to the U.S. Supreme Court in 1957. He retired from the Court for health reasons in 1990.

Antonin Scalia (1936–) graduated from Harvard Law School in 1961. After teaching at the University of Virginia and Georgetown University, he was appointed to the U.S. Supreme Court in 1986. He is noted as a consistent advocate of "textualism," or holding the Constitution to its literal meaning only.

Introduction

The Fourteenth Amendment, ratified in 1868, reaffirmed the principle that everyone was entitled to equal protection under the laws. This protection, though, was not always extended to women. It was not until 1920 that women were granted the right to vote. In the decades that followed, women continued to be barred from equal opportunity in education, employment, and the professions. For example, Sandra Day O'Connor was appointed to the U.S. Supreme Court in 1981, a testament to her legal skills. Yet, after graduating third in her class from Stanford in the early 1950s, O'Connor could not find a job in a law firm because none would hire a woman.

In 1964, Congress attempted to remedy this situation by passing the Civil Rights Act, which banned, among other practices, sexual discrimination in employment. Inequalities, though, continued to plague the workplace. Men continued to be given preferential treatment, and often had advantages in promotion because of seniority, previously established business contacts, more experience, or leadership positions in labor. Federal programs to remedy this and other discrimination, sometimes required affirmative action. Affirmative action refers to a program or policy that gives preferential treatment to women and/or minority groups that were discriminated against in the past. The intention is to counteract the advantages held by white men because of past discrimination. Some state and county governments adopted voluntary affirmative action programs of their own. The legality of one such plan was challenged in Johnson v. Transportation Agency.

Significance

The transportation agency of Santa Clara County in California adopted an affirmative action plan intended to correct the gender imbalance in certain job classifications. After he was passed over for promotion in favor of a woman, Paul Johnson sued, claiming that his rights had been violated under the Civil Rights Act. The trial court agreed, but the court of appeals reversed this decision. The Supreme Court affirmed the decision of the court of appeals, upholding the county's voluntary affirmative action plan. Unlike strict quota plans, which require that a certain number of jobs or promotions be given to women, this plan required that when candidates were equally qualified, a woman could be hired or promoted based on gender. The Supreme Court has generally rejected quota programs, unless they were imposed by a court that found the specific company or organization involved had engaged in a long pattern of past discrimination. In his dissent, Justice Scalia argued that Title VII of the 1964 Civil Rights Act, which guaranteed "gender-blind" hiring, had instead guaranteed gender conscious employment. Since Johnson, the Supreme Court has generally looked with disfavor on affirmative action plans.

Primary Source: Johnson v. Transportation Agency [excerpt]

SYNOPSIS: Justice Brennan, writing for the majority, notes that women have been underrepresented in the job dispatcher category and that the affirmative action plan did not set quotas. He then notes that a qualified applicant had been promoted, and that using gender as one of many factors to be considered was reasonable to remedy past discrimination, making the hiring decision legal. Justice Scalia dissents, arguing that the wrong goals are being pursued and that the court is legitimizing discrimination.

Justice Brennan delivered the opinion of the Court.

Respondent, Transportation Agency of Santa Clara County, California, unilaterally promulgated an Affirmative Action Plan applicable. . . , to promotions of employees. In selecting applicants for the promotional position of road dispatcher, the Agency, pursuant to the Plan, passed over petitioner Paul Johnson, a male employee, and promoted a female employee applicant, Diane Joyce.…

Relevant to this case, the Agency Plan provides that, in making promotions to positions within a traditionally segregated job classification in which women have been significantly underrepresented, the Agency is authorized to consider as one factor the sex of a qualified applicant.…

As for the job classification relevant to this case, none of the 238 Skilled Craft Worker positions was held by a woman.…

The Agency's Plan thus set aside no specific number of positions for minorities or women, but authorized the consideration of ethnicity or sex as a factor when evaluating qualified candidates for jobs in which members of such groups were poorly represented. One such job was the road dispatcher position that is the subject of the dispute in this case.…

As a preliminary matter, we note that petitioner bears the burden of establishing the invalidity of the Agency's Plan.… Once a plaintiff establishes a prima facie case that race or sex has been taken into account in an employer's employment decision, the burden shifts to the employer to articulate a nondiscriminatory rationale for its decision. The existence of an affirmative action plan provides such a rationale. If such a plan is articulated as the basis for the employer's decision, the burden shifts to the plaintiff to prove that the employer's justification is pretextual and the plan is invalid. As a practical matter, of course, an employer will generally seek to avoid a charge of pretext by presenting evidence in support of its plan. That does not mean, however, as petitioner suggests, that reliance on an affirmative action plan is to be treated as an affirmative defense requiring the employer to carry the burden of proving the validity of the plan. The burden of proving its invalidity remains on the plaintiff.

The assessment of the legality of the Agency Plan must be guided by our decision in Weber, … In that case.…

We upheld the employer's decision to select less senior black applicants over the white respondent, for we found that taking race into account was consistent with Title VII's objective of "break[ing] down old patterns of racial segregation and hierarchy." …Our decision was grounded in the recognition that voluntary employer action can play a crucial role in furthering Title VII's purpose of eliminating the effects of discrimination in the workplace, and that Title VII should not be read to thwart such efforts.…

In reviewing the employment decision at issue in this case, we must first examine whether that decision was made pursuant to a plan prompted by concerns similar to those of the employer in Weber. Next, we must determine whether the effect of the Plan on males and nonminorities is comparable to the effect of the plan in that case.

The first issue is therefore whether consideration of the sex of applicants for Skilled Craft jobs was justified by the existence of a "manifest imbalance" that reflected underrepresentation of women in "traditionally segregated job categories." …The requirement that the "manifest imbalance" relate to a "traditionally segregated job category" provides assurance both that sex or race will be taken into account in a manner consistent with Title VII's purpose of eliminating the effects of employment discrimination, and that the interests of those employees not benefiting from the plan will not be unduly infringed.…

It is clear that the decision to hire Joyce was made pursuant to an Agency plan that directed that sex or race be taken into account for the purpose of remedying underrepresentation.…

As an initial matter, the Agency adopted as a benchmark for measuring progress in eliminating underrepresentation the long-term goal of a work force that mirrored in its major job classifications the percentage of women in the area labor market. Even as it did so, however, the Agency acknowledged that such a figure could not by itself necessarily justify taking into account the sex of applicants for positions in all job categories. For positions requiring specialized training and experience, the Plan observed that the number of minorities and women "who possess the qualifications required for entry into such job classifications is limited.." …The Plan therefore directed that annual short-term goals be formulated that would provide a more realistic indication of the degree to which sex should be taken into account in filling particular positions.…

By contrast, had the Plan simply calculated imbalances in all categories according to the proportion of women in the area labor pool, and then directed that hiring be governed solely by those figures, its validity fairly could be called into question. This is because analysis of a more specialized labor pool normally is necessary in determining underrepresentation in some positions.…

The Agency's Plan emphatically did not authorize such blind hiring. It expressly directed that numerous factors be taken into account in making hiring decisions, including specifically the qualifications of female applicants for particular jobs. Thus, despite the fact that no precise short-term goal was yet in place for the Skilled Craft category in mid-1980, the Agency's management nevertheless had been clearly instructed that they were not to hire solely by reference to statistics.…

Furthermore, in considering the candidates for the road dispatcher position in 1980, the Agency hardly needed to rely on a refined short-term goal to realize that it had a significant problem of under-representation that required attention. Given the obvious imbalance in the Skilled Craft category, and given the Agency's commitment to eliminating such imbalances, it was plainly not unreasonable for the Agency to determine that it was appropriate to consider as one factor the sex of Ms. Joyce in making its decision. The promotion of Joyce thus satisfies the first requirement enunciated in Weber, since it was undertaken to further an affirmative action plan designed to eliminate Agency work force imbalances in traditionally segregated job categories.

We next consider whether the Agency Plan unnecessarily trammeled the rights of male employees or created an absolute bar to their advancement.… [T]he Plan sets aside no positions for women. The Plan expressly states that "[t]he 'goals' established for each Division should not be construed as 'quotas' that must be met." …Rather, the Plan merely authorizes that consideration be given to affirmative action concerns when evaluating qualified applicants. As the Agency Director testified, the sex of Joyce was but one of numerous factors he took into account in arriving at his decision.…

In addition, petitioner had no absolute entitlement to the road dispatcher position. Seven of the applicants were classified as qualified and eligible, and the Agency Director was authorized to promote any of the seven. Thus, denial of the promotion unsettled no legitimate, firmly rooted expectation on the part of petitioner. Furthermore, while petitioner in this case was denied a promotion, he retained his employment with the Agency, at the same salary and with the same seniority, and remained eligible for other promotions.…

The Agency has identified a conspicuous imbalance in job categories traditionally segregated by race and sex. It has made clear from the outset, however, that employment decisions may not be justified solely by reference to this imbalance, but must rest on a multitude of practical, realistic factors. It has therefore committed itself to annual adjustment of goals so as to provide a reasonable guide for actual hiring and promotion decisions. The Agency earmarks no positions for anyone; sex is but one of several factors that may be taken into account in evaluating qualified applicants for a position. As both the Plan's language and its manner of operation attest, the Agency has no intention of establishing a work force whose permanent composition is dictated by rigid numerical standards.

We therefore hold that the Agency appropriately took into account as one factor the sex of Diane Joyce in determining that she should be promoted to the road dispatcher position. The decision to do so was made pursuant to an affirmative action plan that represents a moderate, flexible, case-by-case approach to effecting a gradual improvement in the representation of minorities and women in the Agency's work force. Such a plan is fully consistent with Title VII, for it embodies the contribution that voluntary employer action can make in eliminating the vestiges of discrimination in the workplace.…

Justice Scalia, with whom The Chief Justice joins, and with whom Justice White joins in Parts I and II, dissenting.…

Ever so subtly, without even alluding to the last obstacles preserved by earlier opinions that we now push out of our path, we effectively replace the goal of a discrimination-free society with the quite incompatible goal of proportionate representation by race and by sex in the workplace. Part I of this dissent will describe the nature of the plan that the Court approves, and its effect upon this petitioner. Part II will discuss prior holdings that are tacitly overruled, and prior distinctions that are disregarded. Part III will describe the engine of discrimination we have finally completed.…

Not only was the plan not directed at the results of past sex discrimination by the Agency, but its objective was not to achieve the state of affairs that this Court has dubiously assumed would result from an absence of discrimination—an overall work force "more or less representative of the racial and ethnic composition of the population in the community." …Rather, the oft-stated goal was to mirror the racial and sexual composition of the entire county labor force, not merely in the Agency work force as a whole, but in each and every individual job category at the Agency. In a discrimination-free world, it would obviously be a statistical oddity for every job category to match the racial and sexual composition of even that portion of the county work force qualified for that job; it would be utterly miraculous for each of them to match, as the plan expected, the composition of the entire work force. Quite obviously, the plan did not seek to replicate what a lack of discrimination would produce, but rather imposed racial and sexual tailoring that would, in defiance of normal expectations and laws of probability, give each protected racial and sexual group a governmentally determined "proper" proportion of each job category.…

The most significant proposition of law established by today's decision is that racial or sexual discrimination is permitted under Title VII when it is intended to overcome the effect, not of the employer's own discrimination, but of societal attitudes that have limited the entry of certain races, or of a particular sex, into certain jobs.…

In fact, however, today's decision goes well beyond merely allowing racial or sexual discrimination in order to eliminate the effects of prior societal discrimination. The majority opinion often uses the phrase "traditionally segregated job category" to describe the evil against which the plan is legitimately (according to the majority) directed.… There are, of course, those who believe that the social attitudes which cause women themselves to avoid certain jobs and to favor others are as nefarious as conscious, exclusionary discrimination. Whether or not that is so (and there is assuredly no consensus on the point equivalent to our national consensus against intentional discrimination), the two phenomena are certainly distinct. And it is the alteration of social attitudes, rather than the elimination of discrimination, which today's decision approves as justification for state-enforced discrimination. This is an enormous expansion, undertaken without the slightest justification or analysis.…

It is impossible not to be aware that the practical effect of our holding is to accomplish de facto what the law …forbids anyone from accomplishing de jure: in many contexts it effectively requires employers, public as well as private, to engage in intentional discrimination on the basis of race or sex.… A statute designed to establish a color-blind and gender-blind workplace has thus been converted into a powerful engine of racism and sexism, not merely permitting intentional race-and sex-based discrimination, but often making it, through operation of the legal system, practically compelled.

It is unlikely that today's result will be displeasing to politically elected officials, to whom it provides the means of quickly accommodating the demands of organized groups to achieve concrete, numerical improvement in the economic status of particular constituencies. Nor will it displease the world of corporate and governmental employers (many of whom have filed briefs as amici in the present case, all on the side of Santa Clara) for whom the cost of hiring less qualified workers is often substantially less—and infinitely more predictable—than the cost of litigating Title VII cases and of seeking to convince federal agencies by nonnumerical means that no discrimination exists. In fact, the only losers in the process are the Johnsons of the country, for whom Title VII has been not merely repealed but actually inverted. The irony is that these individuals—predominantly unknown, unaffluent, unorganized—suffer this injustice at the hands of a Court fond of thinking itself the champion of the politically impotent. I dissent.

Further Resources

BOOKS

Brisbin, Richard A. Justice Antonin Scalia and the Conservative Revival. Baltimore, Md.: Johns Hopkins University Press, 1997.

Curry, George E., and Cornel West. The Affirmative Action Debate. Reading, Mass.: Addison-Wesley, 1996.

Raza, M. Ali, A. Janell Anderson, and Harry Glynn Custred. The Ups and Downs of Affirmative Action Preferences. Westport, Conn.: Praeger, 1999.

Rosenkranz, E. Joshua, and Bernard Schwartz. Reason and Passion: Justice Brennan's Enduring Influence. New York: Norton, 1997.

Schultz, David A., and Christopher E. Smith, The Jurisprudential Vision of Justice Antonin Scalia. Lanham, Md.: Rowman and Littlefield, 1996.

Spann, Girardeau A. The Law of Affirmative Action: Twenty-Five Years of Supreme Court Decisions on Race and Remedies. New York: New York University Press, 2000.

Urofsky, Melvin I. A Conflict of Rights: The Supreme Court and Affirmative Action. New York: Scribner's, 1991.

WEBSITES

"Milestones in the History of the Equal Employment Opportunity Commission." Available online at ; website home page: http://www.eeoc.gov/ (accessed February 13, 2003).