Case Study:
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 District Board 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 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 twoperson 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 31 /2 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 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 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 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
Q1. What do you think of the Court’s decision in this case? Does it make sense to you? Why or why not?
Q2. If you disagree with the Court’s decision, what would you have done, as the employer, instead?
Q3. Are the Court’s considerations for how to institute an acceptable affirmative action program consistent with how you thought affirmative action worked? Explain.
Your answer must be typed, double-spaced, Times New Roman font (size 12), one-inch margins on all sides, APA format.