Johnson v. Transportation Agency

The court extended legal protection to a greater range of affirmative action programs: those that are gender-based, those that are used by public employers, and those designed to remedy an uneven distribution of women in the work force even when that employer has not discriminated in the past.

The Santa Clara County Transportation Agency adopted its affirmative action plan in December of 1978, after noticing that the agency's higher positions were disproportionately filled by white males. Women were 36.4 percent of the available labor in the area, but only 22.4 percent of the agency's employees were women. The women were overwhelmingly present in traditionally female fields, accounting for 76 percent of the office and clerical workers, but they made up only 22 percent of the service/maintenance workers, 9.7 percent of the technicians, 8.6 percent of the professionals, and 7.1 percent of the officials and administrators.

The agency's long-term goal was to attain a work force in which women and minorities were present in the same proportions that they were available in the qualified labor pool. This goal was to be achieved by considering race and gender as relevant factors--but not the only factors--in evaluating each case for hiring or promotion. No quotas were established, and no positions were set aside exclusively for women or minorities.

The agency posted a vacancy for a promotional road dispatch position on 12 December 1979. The duties included assigning road crews, allocating resources and keeping records related to road maintenance work. Applicants needed to have at least four years of experience as a dispatch or road maintenance worker for the county. The position was classified as a "skilled craft" job; at that time, none of the agency's 238 skilled craft workers were women.

Diane Joyce and Paul Johnson were among the 12 employees who applied for the promotion. After an evaluation of each applicant's record and an interview process, seven applicants, including Joyce and Johnson, were considered qualified for the job. The applicants were ranked according to their score from the interview. Johnson and another man were tied for second with a score of 75, while Joyce was in third with a score of 73. The three agency supervisors who conducted the interviews recommended that Johnson receive the promotion, but the affirmative action coordinator recommended Joyce. James Graebner, the agency's director, gave the promotion to Joyce. Graebner later testified that his decision was based on several factors:

. . . the combination of [Joyce's] qualifications and Mr. Johnson's qualifications, their test scores, their expertise, their background, affirmative action matters, things like that . . .

Johnson sued the agency, arguing that he had been denied the promotion because of gender, a violation of Title VII of the 1964 Civil Rights Act. Title VII stipulates that an employer cannot withhold a job or promotion from an applicant because of that person's race, color, ethnicity, gender, or religion. The U.S. District Court for the Northern District of California found in Johnson's favor, ruling that Johnson was more qualified than Joyce but that Joyce had received the promotion by reason of her gender.

The Ninth Circuit Court of Appeals reversed this ruling, finding that the agency's affirmative action program met the standards outlined in the Supreme Court's earlier ruling in Steelworkers v. Weber (1979). In Weber, the Supreme Court allowed for temporary, race-based affirmative action programs as long as such programs did not call for the removal of white workers or absolutely prevent the advancement of any white employees. As long as the measure was designed to "eliminate a manifest racial imbalance" without "unnecessarily trammel[ing] the interests of the white employees," the Supreme Court said such a program would be consistent with the spirit of Title VII. The Ninth Circuit Court found that Santa Clara Transportation Agency's program was a temporary one that did not make it impossible for males to advance. Therefore, the circuit court ruled, the program was consistent with Title VII's intent of "break[ing] down old patterns of racial segregation and hierarchy."

The Supreme Court upheld the circuit court's ruling, 6-3. In his majority opinion, Justice Brennan defended the agency's program.

[The program] requires women to compete with all other qualified applicants. No persons are automatically excluded from consideration; all are able to have their qualifications weighed against those of other applicants.

The program allowed for gender to be one factor in evaluating an applicant, but female applicants still needed to meet the same experience and skill requirements as men to be competitive candidates, Brennan said. The majority praised the agency's program for being flexible and allowing for a case-by-case application of the program without setting rigid quotas.

Justice Stevens filed a concurring opinion, in which he recognized that affirmative action programs contradicted the literal reading of Title VII's provision that bars any consideration of race or gender, but he said such programs embody the spirit of Title VII. Quoting part of the Weber ruling, Stevens said:

It would be ironic indeed if a law triggered by a Nation's concern over centuries of racial injustice and intended to improve the lot of those who had "been excluded from the American dream for so long" constituted the first legislative prohibition of all voluntary, private, race-conscious efforts to abolish traditional patters of racial segregation and hierarchy.

In her concurring opinion, Justice O'Connor reiterated the consistency of the majority's ruling with the court's precedents, especially Weber, but she emphasized the constitutional limits on affirmative action. Affirmative action programs challenge the Fourteenth Amendment's equal protection clause, she said, but such programs can pass constitutional muster if the employer can point to the presence of an unusually low number of women or minorities in the work force. Such a disparity in the composition of the labor pool is considered prima facia evidence--evidence accepted on its face as fact unless otherwise proved--of the effects of discrimination, even if the employer had not intentionally discriminated in the past. The presence of discriminatory effects gives the state a compelling interest that allows it to temporarily suspend equal protection considerations, O'Connor said. Under these circumstances, the state and other employers may use affirmative action programs to remedy the lingering effects of past discrimination, she said.

In a thundering dissent, Justice Scalia, joined by Chief Justice Rehnquist and in part by Justice White, criticized the majority's ruling for blatantly contradicting the language of Title VII.

The Court today completes the process of converting [Title VII] from a guarantee that race or sex will not be the basis for employment determinations, to a guarantee that it often will.

Scalia called for a literal interpretation of Title VII and scolded the Court for breathing new meaning into the "unambiguous" language of the statute.

Supporters of affirmative action, such as Emily Spitzer, a lawyer with the National Organization of Women's Legal Defense and Education Fund, hailed the ruling. Spitzer told the Chicago Tribune:

[The ruling will] encourage employers to adopt voluntary affirmative action and promote women, particularly in areas where they have been excluded in the past.

Affirmative action critics argued that the ruling allowed for "reverse discrimination" against white males, signaling a step backwards from Title VII's goal of attaining a color-blind and gender-blind society.