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Affirmative-Action Plans for Women Upheld by Court

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Public employers, including school boards, can consider a "manifest imbalance'' in the sexual composition of their workforces in deciding whether to promote women over better-qualified men, the U.S. Supreme Court ruled last week.

In its first decision on an affirmative-action plan designed to benefit women, the Court voted 6 to 3 to uphold the legality of a California county highway agency's voluntarily adopted plan to gradually lift the percentage of women it employs to the percentage of women in the county labor pool.

Legal experts on both sides of the issue agreed that the Court's March 25 ruling represents a significant expansion of the bounds of affirmative action. Supporters of the decision said it is likely to encourage both public and private employers to implement affirmative-action policies.

The federal law barring job bias on the basis of sex does not require a public employer to produce evidence that it has actually discriminated against women or minorities before adopting a voluntary affirmative-action plan, Associate Justice William Brennan wrote for the majority in the case, Johnson v. Transportation Agency of Santa Clara County, Calif. (No. 85-1129).

An "obvious imbalance'' in the composition of its workforce provides such an employer with sufficient reason to consider race and sex in promotion decisions, he said.

Employers cannot, however, use such findings to justify rigid promotion quotas, the Justice added. Plans should be approved by federal courts only if they take "a moderate, gradual approach to eliminating'' the imbalances, and if they "[visit] minimal intrusion on the legitimate expectations of other employees.''

In a stinging dissent, Associate Justice Antonin Scalia charged that the majority's ruling "effectively replace[s] the goal of a discrimination-free society with the quite incompatible goal of proportionate representation by race and sex in the workplace.''

Title VII of the Civil Rights Act of 1964, "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 the operation of the legal system, practically compelled,'' he wrote.

Series of Decisions

The High Court's ruling was the latest in a series over the past decade in which it has addressed the issue of the allowable limits of affirmative action.

In those decisions, a majority of the Justices have approved race- and sex-based job preferences at the hiring and promotion stages of employment. However, the majority has indicated that policies that favor women and minorities in layoffs are too burdensome on innocent white and male workers.

Last week's ruling was also the latest defeat for the Reagan Administration, which has argued in affirmative-action cases for a narrow interpretation of the governing laws and constitutional provisions.

In the Johnson case, for example, the Administration argued in a brief that "a mere desire to achieve some numerical proportion or balance of race or gender cannot serve as a justification for discrimination against'' innocent white males. "[T]he employer must have firm, objective grounds suggesting that he has engaged in discrimination.''

Case Background

The lawsuit decided last week stemmed from a decision by county officials to promote a woman over a man, even though the man scored two points higher on a competitive examination. An affirmative-action policy adopted voluntarily by the agency in 1978 stated that, as a long-term goal, 36.4 percent of its jobs should be granted to women, a figure equal to the proportion of women in the local labor pool.

The plan did not establish hiring quotas to achieve that goal. Rather, it specified that sex should be one of the factors considered by the agency in reviewing candidates for jobs in which women have been traditionally underrepresented.

The male candidate filed suit in federal district court, arguing that Title VII requires that affirmative-action plans be grounded on firm evidence of discrimination, and not simply on a "naked statistical disparity'' in an employer's workforce.

A federal district judge ruled that the plan violated the law, and ordered the agency to promote the male candidate. The U.S. Court of Appeals for the Ninth Circuit reversed the ruling, holding that the law does not require an employer "to show its own history of purposeful discrimination,'' and thus open itself to a lawsuit, to justify a voluntary affirmative-action plan. Rather, it said, "it is sufficient for the employer to show a conspicuous statistical imbalance in its workforce.''

Brennan's Opinion

Writing for the majority, Justice Brennan said that the road agency "hardly needed'' to rely on county labor statistics "to realize that it had a significant problem of underrepresentation that required attention.''

Given the fact that no women held any of the agency's 238 skilled-craft positions, he said, "it was plainly not unreasonable for the agency to determine that it was appropriate to consider [sex] as one factor'' in its decision to promote the female candidate.

Justice Brennan—whose opinion was joined in full by Associate Justices Thurgood Marshall, Lewis F. Powell Jr., and Harry A. Blackmun—also noted that the county's plan did not rely on quotas to attain its goals. Instead, he wrote, it "merely authorizes that consideration be given to affirmative-action concerns when evaluating qualified applicants.''

He also noted that the plan did not unduly burden the male candidate, because he retained his employment at the same salary and with the same seniority, and remained eligible for other promotions.

Concurring Opinions

Associate Justices John Paul Stevens and Sandra Day O'Connor wrote separate concurring opinions.

Justice Stevens said he wrote separately to emphasize that the majority opinion should not be read to preclude employers from considering "forward looking'' factors, as well as discrimination, in decisions to adopt affirmative-action policies. In the education context, he noted, such considerations could include providing minority students with an adequate number of positive minority role models.

He added, however, that in his opinion, the Court's majority had strayed from the original intent of the authors of Title VII, which he said was to create "an absolute blanket prohibition against discrimination which neither required nor permitted discriminatory preferences for any group, minority or majority.''

Despite his misgivings, Justice Stevens said he felt compelled to uphold the Court's precedents in this area of law, and thus "adhere to an authoritative construction of the act that is at odds with my understanding of the actual intent of the authors of the legislation.''

Justice O'Connor, meanwhile, wrote separately to state that employers must be required to demonstrate evidence of discrimination sufficient "to support a prima facie claim under Title VII'' before they can be allowed to adopt a voluntary affirmative-action plan.

She chastised the majority for producing "an expansive and ill-defined approach to voluntary affirmative action by public employers.'' The Justice also criticized the dissenters for "addressing the question of how Title VII should be interpreted as if the Court were writing on a clean slate.''

Scalia's Dissent

Associate Justice Scalia wrote a dissenting opinion that was joined by Chief Justice William H. Rehnquist and Associate Justice Byron H. White. "The Court today completes the process of converting [Title VII] from a guarantee that race will not be the basis for employment determinations, to a guarantee that it often will,'' he wrote.

"It is absurd to think that the nationwide failure of road-maintenance crews, for example, to achieve the agency's ambition of 36.4 percent female representation is attributable primarily, if even substantially, to systematic exclusion of women eager to shoulder pick and shovel,'' he said.

"[I]t 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.''

Cincinnati Firefighters

Acting in another affirmative-action dispute, the Court last week declined to review lower court rulings requiring the Cincinnati fire department to give preference to blacks in promotions over whites with higher scores on a competitive examination.

The plan, which stemmed from a 1974 consent decree, was agreed to by city officials to resolve a discrimination suit brought by black firefighters. It required the department to promote at least one black for every six whites elevated to the rank of lieutenant between 1984 and 1986.

White firefighters, as did the male worker in the Johnson case, argued that the plan was adopted in the absence of "strong evidence of discrimination.'' A federal appeals court, however, upheld the validity of the plan in its November 1986 ruling in the case, Cincinnati Firefighters Union v. Youngblood (No. 86-1279).

Other Cases

Also last week, the Court:

  • Struck down a Utah law that restricted cable telecasts of "indecent'' programs to hours when children were most likely to be at school or under their parents' supervision.

The Court's decision in the case, Wilkinson v. Jones (No. 86-1125), came without having held oral arguments and without a written opinion. Chief Justice Rehnquist and Justice O'Connor noted they would have heard full arguments in the case.

The 1983 Utah law provided for fines against cable-television firms that broadcast "patently offensive'' depictions of nudity or sexual acts. The state said the law was intended to bar the showing of such programs between 7 A.M. and midnight.

A federal district judge struck down the law, saying that it was unconstitutionally "overbroad.'' A federal appeals court upheld his decision in September of last year.

  • Declined to review rulings by Iowa hearing officers and lower federal courts in a case involving the educational placement of a multiply-handicapped Iowa City preschool student.

The case, Mark A., Parent of Alleah A. v. Grant Wood Area Education Agency (No. 86-1934), stemmed from school officials' decision to place a 6-year-old girl with physical and mental handicaps in a special-education class where she would have had only limited contact with nonhandicapped students. Her parents unsuccesfully argued that their daughter's placement violated the provision of the Education for All Handicapped Children Act mandating that such children be educated in the least restrictive environment.

State hearing officers and lower federal courts had ruled in favor of the school district in the case.

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