Homework assignment

Johnson v. Transportation Agency,

Santa Clara County, California 480

U.S. 616 (1987)

A female was promoted over a male pursuant to an

affirmative action plan voluntarily adopted by the employer

to address a traditionally segregated job classification in

which women had been significantly underrepresented. A

male employee who also applied for the job sued, alleging

it was illegal discrimination under Title VII for the employer

to consider gender in the promotion process. The U.S.

Supreme Court upheld the promotion under the voluntary

affirmative action plan. It held that since it was permissible

for a public employer to adopt such a voluntary plan, the

plan was reasonable, and since the criteria for the plan had

been met, gender could be considered as one factor in the

promotion.

Brennan, J.

***

In December 1978, the Santa Clara County Transit DistrictBoard of

Supervisors adopted an Affirmative Action Plan (Plan) for the

County Transportation Agency. The Plan implemented a County

Affirmative Action Plan, which had been adopted because “mere

prohibition of discriminatory practices is not enough to remedy the

effects of past practices and to permit attainment of an equitable

representation of minorities, women and handicapped persons.”

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.

In reviewing the composition of its workforce, the Agency noted in

its Plan that women were represented in numbers far less than their

proportion of the County labor force in both the Agency as a whole

and in five of seven job categories. Specifically, while women

constituted 36.4 percent of the area labor market, they composed

only 22.4 percent of Agency employees. Furthermore, women

working at the Agency were concentrated largely in EEOC job

categories traditionally held by women: women made up 76 percent

of Office and Clerical Workers, but only 7.1 percent of Agency

Officials and Administrators, 8.6 percent of Professionals, 9.7

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percent of Technicians, and 22 percent of Service and Maintenance

Workers. As for the job classification relevant to this case, none of

the 238 Skilled Craft Worker positions was held by a woman. The

Plan noted that this underrepresentation of women in part reflected

the fact that women had not traditionally been employed in these

positions, and that they had not been strongly motivated to seek

training or employment in them “because of the

limited opportunities that have existed in the past

for them to work in such classifications.” The Plan also observed

that, while the proportion of ethnic minorities in the Agency as a

whole exceeded the proportion of such minorities in the County

workforce, a smaller percentage of minority employees held

management, professional, and technical positions.

The Agency stated that its Plan was intended to achieve “a

statistically measurable yearly improvement in hiring, training and

promotion of minorities and women throughout the Agency in all

major job classifications where they are underrepresented.” As a

benchmark by which to evaluate progress, the Agency stated that its

long-term goal was to attain a workforce whose composition

reflected the proportion of minorities and women in the area labor

force. Thus, for the Skilled Craft category in which the road

dispatcher position at issue here was classified, the Agency’s

aspiration was that eventually about 36 percent of the jobs would be

occupied by women.

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.

The Agency announced a vacancy for the promotional position of

road dispatcher in the Agency’s Roads Division. Twelve County

employees applied for the promotion, including Joyce and Johnson.

Nine of the applicants, including Joyce and Johnson, were deemed

qualified for the job, and were interviewed by a two-person board.

Seven of the applicants scored above 70 on this interview, which

meant that they were certified as eligible for selection by the

appointing authority. The scores awarded ranged from 70 to 80.

Johnson was tied for second with a score of 75, while Joyce ranked

next with a score of 73. A second interview was conducted by three

Agency supervisors, who ultimately recommended that Johnson be

promoted.

James Graebner, Director of the Agency, concluded that the

promotion should be given to Joyce. As he testified: “I tried to look

at the whole picture, the combination of her qualifications and Mr.

Johnson’s qualifications, their test scores, their expertise, their

background, affirmative action matters, things like that. . . . I believe

it was a combination of all those.”

The certification form naming Joyce as the person promoted to

the dispatcher position stated that both she and Johnson were rated

as well qualified for the job. The evaluation of Joyce read: “Well

qualified by virtue of 18 years of past clerical experience including

3½ years at West Yard plus almost 5 years as a [road maintenance

worker].” The evaluation of Johnson was as follows: “Well qualified

applicant; two years of [road maintenance worker] experience plus

11 years of Road Yard Clerk. Has had previous outside Dispatch

experience but was 13 years ago.” Graebner testified that he did not

regard as significant the fact that Johnson scored 75 and Joyce 73

when interviewed by the two-person board.

Johnson filed a complaint with the EEOC alleging that he had

been denied promotion on the basis of sex in violation of Title VII.

In reviewing the employment decision at issue in this case, we

must first examine 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.” In determining whether an

imbalance exists that would justify taking sex or race into account, a

comparison of the percentage of minorities or women in the

employer’s work force with the percentage in the area labor market

or general population is appropriate in analyzing jobs that require no

special expertise or training programs designed to provide

expertise. Where a job requires special training, however, the

comparison should be with those in the labor force who possess the

relevant qualifications. 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 benefitting 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. The Agency Plan

acknowledged the “limited opportunities that have existed in the

past,” for women to find employment in certain job classifications

“where women have not been traditionally employed in significant

numbers.” As a result, observed the Plan, women were

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concentrated in traditionally female jobs in the Agency, and

represented a lower percentage in other job classifications than

would be expected if such traditional segregation had not occurred.

Specifically, 9 of the 10 Para-Professionals and 110 of the 145

Office and Clerical Workers were women. By contrast, women were

only 2 of the 28 Officials and Administrators, 5 of the 58

Professionals, 12 of the 124 Technicians, none of

the Skilled Craft Workers, and 1—who was Joyce

—of the 110 Road Maintenance Workers. The Plan sought to

remedy these imbalances through “hiring, training and promotion of

. . . women throughout the Agency in all major job classifications

where they are underrepresented.”

The Agency adopted as a benchmark for measuring progress in

eliminating underrepresentation the long-term goal of a workforce

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. The Plan

stressed that such goals “should not be construed as ‘quotas’ that

must be met,” but as reasonable aspirations in correcting the

imbalance in the Agency’s workforce. These goals were to take into

account factors such as “turnover, layoffs, lateral transfers, new job

openings, retirements and availability of minorities, women and

handicapped persons in the area workforce who possess the

desired qualifications or potential for placement.” The Plan

specifically directed that, in establishing such goals, the Agency

work with the County Planning Department and other sources in

attempting to compile data on the percentage of minorities and

women in the local labor force that were actually working in the job

classifications constituting the Agency workforce. From the outset,

therefore, the Plan sought annually to develop even more refined

measures of the underrepresentation in each job category that

required attention.

As the Agency Plan recognized, women were most egregiously

underrepresented in the Skilled Craft job category, since none of the

238 positions was occupied by a woman. In mid-1980, when Joyce

was selected for the road dispatcher position, the Agency was still in

the process of refining its short-term goals for Skilled Craft Workers

in accordance with the directive of the Plan. This process did not

reach fruition until 1982, when the Agency established a short-term

goal for that year of 3 women for the 55 expected openings in that

job category—a modest goal of about 6 percent for that category.

The Agency’s Plan emphasized that the long-term goals were not

to be taken as guides for actual hiring decisions, but that

supervisors were to consider a host of practical factors in seeking to

meet affirmative action objectives, including the fact that in some job

categories women were not qualified in numbers comparable to

their representation in the labor force.

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. If

a plan failed to take distinctions in qualifications into account in

providing guidance for actual employment decisions, it would dictate

mere blind hiring by the numbers, for it would hold supervisors to

“achievement of a particular percentage of minority employment or

membership . . . regardless of circumstances such as economic

conditions or the number of available qualified minority applicants . .

. .”

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. The Agency’s

management had been clearly instructed that they were not to hire

solely by reference to statistics. The fact that only the long-term goal

had been established for this category posed no danger that

personnel decisions would be made by reflexive adherence to a

numerical standard.

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

underrepresentation 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 since it

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was undertaken to further an affirmative action plan designed to

eliminate Agency workforce 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. The 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. The Plan thus resembles the “Harvard

Plan” approvingly noted in Regents of University of California v.

Bakke, which considers race along with other criteria in determining

admission to the college. As the Court observed: “In such an

admissions program, race or ethnic background may be deemed a

‘plus’ in a particular applicant’s file, yet it does not insulate the

individual from comparison with all other candidates for the available

seats.” Similarly, the Agency Plan 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.

In addition, Johnson 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 Johnson.

Furthermore, while Johnson 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.

Finally, the Agency’s Plan was intended to attain a balanced

workforce not to maintain one. The Plan contains 10 references to

the Agency’s desire to “attain” such a balance, but no reference

whatsoever to a goal of maintaining it. The Director testified that,

while the “broader goal” of affirmative action, defined as “the desire

to hire, to promote, to give opportunity and training on an equitable,

non-discriminatory basis,” is something that is “a permanent part” of

“the Agency’s operating philosophy,” that broader goal “is divorced,

if you will, from specific numbers or percentages.” The Agency

acknowledged the difficulties that it would confront in remedying the

imbalance in its workforce, and it anticipated only gradual increases

in the representation of minorities and women. It is thus unsurprising

that the Plan contains no explicit end date, for the Agency’s flexible,

case-by-case approach was not expected to yield success in a brief

period of time.

Express assurance that a program is only temporary may be

necessary if the program actually sets aside positions according to

specific numbers. This is necessary both to minimize the effect of

the program on other employees, and to ensure that the plan’s

goals “[are] not being used simply to achieve and maintain . . .

balance, but rather as a benchmark against which” the employer

may measure its progress in eliminating the underrepresentation of

minorities and women. In this case, however, substantial evidence

shows that the Agency has sought to take a moderate, gradual

approach to eliminating the imbalance in its workforce, one which

establishes realistic guidance for employment decisions, and which

visits minimal intrusion on the legitimate expectations of other

employees. Given this fact, as well as the Agency’s express

commitment to “attain” a balanced workforce, there is ample

assurance that the Agency does not seek to use its Plan to maintain

a permanent racial and sexual balance.

In evaluating the compliance of an affirmative action plan with

Title VII’s prohibition on discrimination, we must be mindful of “this

Court’s and Congress’s consistent emphasis on ‘the value of

voluntary efforts to further the objectives of the law.’” The Agency in

the case before us has undertaken such a voluntary effort, and has

done so in full recognition of both the difficulties and the potential for

intrusion on males and nonminorities. 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 workforce 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

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improvement in the representation of minorities and women in the

Agency’s workforce. 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.

Accordingly, the judgment of the Court of Appeals is AFFIRMED.

Case Questions

1. What do you think of the Court’s decision in this case? Does it

make sense to you? Why or why not?

2. If you disagree with the Court’s decision, what would you as the

employer have done instead?

3. Are the Court’s considerations for how to institute an acceptable

affirmative action program consistent with how you thought affirmation action worked? Explain.