Read the Santa Clara County Transportation Agency case posted under the cases and readings link on the course menu, and the respond to the prompts stated below. The SCCTA director decided to overrule the recommendation of the interview panelists to offer

SANTA CLARA COUNTY TRANSPORTATION AGENCY CASE 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 fe- male 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, includ- ing Joyce and Johnson, were considered qualified for the job. The applicants were ranked ac- cording to their score from the interview conducted by three agency supervisors. Johnson and another man were tied for second with a score of 75, while Joyce was in third with a score of 73.

The decision is to be made by the Director. Who would you recommend for appointment and why? Paul Johnson •   Experience: 13 yrs., all at SCCTA •   Worked on road crews 2 years •   Sometimes worked as dispatcher (on an

acting basis) •   Current Job Rating: Excellent •   Personality: Likeable, part of “good ol’

boy” network •   Feels he deserves the job •   Interview Score: Higher •   Interview Test Score: 75% (Tied 2nd)

Diane Joyce •   Experience: 13 yrs. (10 at SCCTA, 3 at

another agency). •   Has worked on the road crews 5 yrs. •   No experience as dispatcher •   Current Job Rating: Excellent •   Personality: Said to be a “rebel rousing,

skirt-wearing person” •   Learned to stand up for her rights •   Confident she will get the job based on

merit •   Interview Score: 73% (Ranked 3rd)

Background to the SCTTA Case

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 profes- sions. 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, con- tinued 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 discrimi- nation, 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. Transporta- tion 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 volun- tary 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 quali- fied, 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" hir- ing, had instead guaranteed gender conscious employment. Since Johnson, the Supreme Court has generally looked with disfavor on affirmative action plans. Johnson v. Transportation Agency [excerpt]

SYNOPSIS: Justice Brennan, writing for the majority, notes that women have been underrepre- sented 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 deci- sion 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. The respondent, Transportation Agency of Santa Clara County, California, unilaterally promul- gated an Affirmative Action Plan applicable… to promotions of employees. In selecting appli- cants 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.… 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 posi- tions 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 rep- resented. One such job was the road dispatcher position that is the subject of the dispute in this case.