In 1978, an Affirmative Action Plan (Plan) for hiring and
promoting minorities and women was voluntarily adopted by
respondent Santa Clara County Transportation Agency (Agency). The
Plan provides,
inter alia, 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. The Plan is intended to achieve a statistically
measurable yearly improvement in hiring and promoting minorities
and women in job classifications where they are underrepresented,
and the long-term goal is to attain a workforce whose composition
reflects the proportion of minorities and women in the area labor
force. The Plan sets aside no specific number of positions for
minorities or women, but requires that short-range goals be
established and annually adjusted to serve as the most realistic
guide for actual employment decisions. When the Agency announced a
vacancy for the promotional position of road dispatcher, none of
the 238 positions in the pertinent Skilled Craft Worker job
classification, which included the dispatcher position, was held by
a woman. The qualified applicants for the position were interviewed
and the Agency, pursuant to the Plan, ultimately passed over
petitioner, a male employee, and promoted a female, Diane Joyce,
both of whom were rated as well qualified for the job. After
receiving a right-to-sue letter from the Equal Employment
Opportunity Commission, petitioner filed suit in Federal District
Court, which held that the Agency had violated Title VII of the
Civil Rights Act of 1964. The court found that Joyce's sex was the
determining factor in her selection, and that the Agency's Plan was
invalid under the criterion announced in
Steelworkers v.
Weber, 443 U. S. 193,
that the Plan be temporary. The Court of Appeals reversed.
Held: The Agency appropriately took into account
Joyce's sex as one factor in determining that she should be
promoted. The Agency's Plan represents a moderate, flexible,
case-by-case approach to effecting a gradual improvement in the
representation of minorities and women
Page 480 U. S. 617
in the Agency's workforce, and is fully consistent with Title
VII. Pp.
480 U. S.
626-640.
(a) Petitioner bears the burden of proving that the Agency's
Plan violates Title VII. Once a plaintiff establishes a
prima
facie case that race or sex has been taken into account in an
employer's employment decision, the burden shifts to the employer
to articulate a nondiscriminatory rationale for its decision, such
as the existence of an affirmative action plan. The burden then
shifts to the plaintiff to prove that the plan is invalid and that
the employer's justification is pretextual. Pp.
480 U. S.
626-627.
(b) Assessment of the legality of the Agency's Plan must be
guided by the decision in
Weber. An employer seeking to
justify the adoption of an affirmative action plan need not point
to its own prior discriminatory practices, but need point only to a
conspicuous imbalance in traditionally segregated job categories.
Voluntary employer action can play a crucial role in furthering
Title VII's purpose of eliminating the effects of discrimination in
the workplace, and Title VII should not be read to thwart such
efforts. Pp.
480 U. S.
627-630.
(c) The employment decision here was made pursuant to a plan
prompted by concerns similar to those of the employer in
Weber,
supra. 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."
Id. at 197. Where a job
requires special training, the comparison for determining whether
an imbalance exists should be between the employer's workforce and
those in the area labor force who possess the relevant
qualifications. If a plan failed to take distinctions in
qualifications into account in providing guidance for actual
employment decisions, it would improperly dictate mere blind hiring
by the numbers. However, the Agency's Plan did not authorize such
blind hiring, but expressly directed that numerous factors be taken
into account in making employment decisions, including specifically
the number of female applicants qualified for particular jobs.
Thus, despite the fact that no precise short-term goal was yet in
place for the Skilled Craft Worker job category when Joyce was
promoted, 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 the job
category posed no danger that personnel decisions would be made by
reflexive adherence to a numerical standard. Pp.
480 U.S. 631-637.
(d) The Agency Plan did not unnecessarily trammel male
employees' rights or create an absolute bar to their advancement.
The Plan sets aside no positions for women, and expressly states
that its goals should
Page 480 U. S. 618
not be construed as "quotas" that must be met. Denial of the
promotion to petitioner unsettled no legitimate, firmly rooted
expectation on his part, since the Agency Director was authorized
to select any of the seven applicants deemed qualified for the job.
Express assurance that a program is only temporary may be necessary
if the program actually sets aside positions according to specific
numbers. 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. Pp.
480 U.S.
637-640.
770 F.2d 752, affirmed.
BRENNAN, J., delivered the opinion of the Court, in which
MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined. STEVENS, J.,
filed a concurring opinion,
post, p.
480 U. S. 642.
O'CONNOR, J., filed an opinion concurring in the judgment,
post, p.
480 U. S. 647.
WHITE, J., filed a dissenting opinion,
post, p.
480 U. S. 657.
SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C.J.,
joined, and in Parts I and II of which WHITE, J., joined,
post, p.
480 U. S.
657.
Page 480 U. S. 619
JUSTICE BRENNAN delivered the opinion of the Court.
Respondent, Transportation Agency of Santa Clara County,
California, unilaterally promulgated an Affirmative Action Plan
applicable,
inter alia, to promotions of employees. In
selecting applicants 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. The question for decision is
whether, in making the promotion, the Agency impermissibly took
into account the sex of the applicants in violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq.
[
Footnote 1] The District Court
for the
Page 480 U. S. 620
Northern District of California, in an action filed by
petitioner following receipt of a right-to-sue letter from the
Equal Employment Opportunity Commission (EEOC), held that
respondent had violated Title VII.App. to Pet. for Cert. 1a. The
Court of Appeals for the Ninth Circuit reversed. 770 F.2d 752
(1985). We granted certiorari, 478 U.S. 1019 (1986). We affirm.
[
Footnote 2]
I
A
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, declared the
County, 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."
App. 31. [
Footnote 3]
Relevant to this case, the Agency Plan provides that, in making
promotions to positions within a traditionally segregated job
classification in which women have
Page 480 U. S. 621
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% of the area labor market, they composed
only 22.4% of Agency employees. Furthermore, women working at the
Agency were concentrated largely in EEOC job categories
traditionally held by women: women made up 76% of Office and
Clerical Workers, but only 7.1% of Agency Officials and
Administrators, 8.6% of Professionals, 9.7% of Technicians, and 22%
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.
Id. at 49. 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."
Id. at 57. 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. [
Footnote 4]
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."
Id. at 43. 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
Page 480 U. S. 622
of minorities and women in the area labor force.
Id. at
54. 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% of the jobs would be
occupied by women.
The Plan acknowledged that a number of factors might make it
unrealistic to rely on the Agency's long-term goals in evaluating
the Agency's progress in expanding job opportunities for minorities
and women. Among the factors identified were low turnover rates in
some classifications, the fact that some jobs involved heavy labor,
the small number of positions within some job categories, the
limited number of entry positions leading to the Technical and
Skilled Craft classifications, and the limited number of minorities
and women qualified for positions requiring specialized training
and experience.
Id. at 56-57. As a result, the Plan
counseled that short-range goals be established and annually
adjusted to serve as the most realistic guide for actual employment
decisions. Among the tasks identified as important in establishing
such short-term goals was the acquisition of data
"reflecting the ratio of minorities, women and handicapped
persons who are working in the local area in major job
classifications relating to those utilized by the County
Administration,"
so as to determine the availability of members of such groups
who "possess the desired qualifications or potential for
placement."
Id. at 64. These data on qualified group
members, along with predictions of position vacancies, were to
serve as the basis for
"realistic yearly employment goals for women, minorities and
handicapped persons in each EEOC job category and major job
classification."
Ibid.
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.
Page 480 U. S. 623
B
On December 12, 1979, the Agency announced a vacancy for the
promotional position of road dispatcher in the Agency's Roads
Division. Dispatchers assign road crews, equipment, and materials,
and maintain records pertaining to road maintenance jobs.
Id. at 23-24. The position requires, at minimum, four
years of dispatch or road maintenance work experience for Santa
Clara County. The EEOC job classification scheme designates a road
dispatcher as a Skilled Craft Worker.
Twelve County employees applied for the promotion, including
Joyce and Johnson. Joyce had worked for the County since 1970,
serving as an account clerk until 1975. She had applied for a road
dispatcher position in 1974, but was deemed ineligible because she
had not served as a road maintenance worker. In 1975, Joyce
transferred from a senior account clerk position to a road
maintenance worker position, becoming the first woman to fill such
a job. Tr. 83-84. During her four years in that position, she
occasionally worked out of class as a road dispatcher.
Petitioner Johnson began with the County in 1967 as a road yard
clerk, after private employment that included working as a
supervisor and dispatcher. He had also unsuccessfully applied for
the road dispatcher opening in 1974. In 1977, his clerical position
was downgraded, and he sought and received a transfer to the
position of road maintenance worker.
Id. at 127. He also
occasionally worked out of class as a dispatcher while performing
that job.
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
Page 480 U. S. 624
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. Prior to the
second interview, Joyce had contacted the County's Affirmative
Action Office because she feared that her application might not
receive disinterested review. [
Footnote 5] The Office in turn contacted the Agency's
Affirmative Action Coordinator, whom the Agency's Plan makes
responsible for,
inter alia, keeping the Director informed
of opportunities for the Agency to accomplish its objectives under
the Plan. At the time, the Agency employed no women in any Skilled
Craft position, and had never employed a woman as a road
dispatcher. The Coordinator recommended to the Director of the
Agency, James Graebner, that Joyce be promoted.
Graebner, authorized to choose any of the seven persons deemed
eligible, thus had the benefit of suggestions by the second
interview panel and by the Agency Coordinator in arriving at his
decision. After deliberation, Graebner concluded
Page 480 U. S. 625
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."
Id. at 68.
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 3 1/2 years at West Yard plus almost 5 years
as a [road maintenance worker]."
App. 27. 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."
Ibid. 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. Tr. 57-58.
Petitioner Johnson filed a complaint with the EEOC, alleging
that he had been denied promotion on the basis of sex in violation
of Title VII. He received a right-to-sue letter from the EEOC on
March 10, 1981, and on March 20, 1981, filed suit in the United
States District Court for the Northern District of California. The
District Court found that Johnson was more qualified for the
dispatcher position than Joyce, and that the sex of Joyce was the
"
determining factor in her selection." App. to Pet. for
Cert. 4a (emphasis in original). The court acknowledged that, since
the Agency justified its decision on the basis of its Affirmative
Action Plan, the criteria announced in
Steelworkers v.
Weber, 443 U. S. 193
(1979), should be applied in evaluating the validity of the Plan.
App. to Pet. for Cert. 5a. It then found the Agency's Plan invalid
on the ground that the evidence did not satisfy
Weber's
criterion that the Plan be temporary. App. to Pet. for Cert. 6a.
The Court of Appeals for the Ninth Circuit reversed,
Page 480 U. S. 626
holding that the absence of an express termination date in the
Plan was not dispositive, since the Plan repeatedly expressed its
objective as the attainment, rather than the maintenance, of a
workforce mirroring the labor force in the County. 770 F.2d at 756.
The Court of Appeals added that the fact that the Plan established
no fixed percentage of positions for minorities or women made it
less essential that the Plan contain a relatively explicit
deadline. 770 F.2d at 757. The Court held further that the Agency's
consideration of Joyce's sex in filling the road dispatcher
position was lawful. The Agency Plan had been adopted, the court
said, to address a conspicuous imbalance in the Agency's workforce,
and neither unnecessarily trammeled the rights of other employees
nor created an absolute bar to their advancement.
Id. at
757-759.
II
As a preliminary matter, we note that petitioner bears the
burden of establishing the invalidity of the Agency's Plan. Only
last Term, in
Wygant v. Jackson Board of Education,
476 U. S. 267,
476 U. S.
277-278 (1986), we held that "[t]he ultimate burden
remains with the employees to demonstrate the unconstitutionality
of an affirmative action program," and we see no basis for a
different rule regarding a plan's alleged violation of Title VII.
This case also fits readily within the analytical framework set
forth in
McDonnell Douglas Corp. v. Green, 411 U.
S. 792 (1973). Once a plaintiff establishes a
prima
facie case that race or sex has been taken into account in an
employer's employment decision, the burden shifts to the employer
to articulate a nondiscriminatory rationale for its decision. The
existence of an affirmative action plan provides such a rationale.
If such a plan is articulated as the basis for the employer's
decision, the burden shifts to the plaintiff to prove that the
employer's justification is pretextual and the plan is invalid. As
a practical matter, of course, an employer will generally seek to
avoid a charge of
Page 480 U. S. 627
pretext by presenting evidence in support of its plan. That does
not mean, however, as petitioner suggests, that reliance on an
affirmative action plan is to be treated as an affirmative defense
requiring the employer to carry the burden of proving the validity
of the plan. The burden of proving its invalidity remains on the
plaintiff.
The assessment of the legality of the Agency Plan must be guided
by our decision in
Weber, supra. [
Footnote 6] In that case, the
Page 480 U. S. 628
Court addressed the question whether the employer violated Title
VII by adopting a voluntary affirmative action plan designed to
"eliminate manifest racial imbalances in traditionally segregated
job categories."
Id. at
443 U. S. 197.
The respondent employee in that case challenged the employer's
denial of his application for a position in a newly established
craft training program, contending that the employer's selection
process impermissibly took into account the race of the applicants.
The selection process was guided by an affirmative action plan,
which provided that 50% of the new trainees were to be black until
the percentage of black skilled craftworkers in the employer's
plant approximated the percentage of blacks in the local labor
force. Adoption of the plan had been prompted by the fact that only
5 of 273, or 1.83%, of skilled craftworkers at the plant were
black, even though the workforce in the area was approximately 39%
black. Because of the historical exclusion of blacks from craft
positions, the employer regarded its former policy of hiring
trained outsiders as inadequate to redress the imbalance in its
workforce.
We upheld the employer's decision to select less senior black
applicants over the white respondent, for we found that taking race
into account was consistent with Title VII's objective of
"break[ing] down old patterns of racial segregation and hierarchy."
Id. at
443 U. S. 208.
As we stated:
"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
Page 480 U. S. 629
the first legislative prohibition of all voluntary, private,
race-conscious efforts to abolish traditional patterns of racial
segregation and hierarchy."
Id. at
443 U. S. 204
(quoting remarks of Sen. Humphrey, 110 Cong.Rec. 6552 (1964)).
[
Footnote 7]
Page 480 U. S. 630
We noted that the plan did not "unnecessarily trammel the
interests of the white employees," since it did not require "the
discharge of white workers and their replacement with new black
hirees." 443 U.S. at
443 U. S. 208.
Nor did the plan create "an absolute bar to the advancement of
white employees," since half of those trained in the new program
were to be white.
Ibid. Finally, we observed that the plan
was a temporary measure, not designed to maintain racial balance,
but to "eliminate a manifest racial imbalance."
Ibid. As
JUSTICE BLACKMUN'S concurrence made clear,
Weber held that
an employer seeking to justify the adoption of a plan need not
point to its own prior discriminatory practices, nor even to
evidence of an "arguable violation" on its part.
Id. at
443 U. S. 212.
Rather, it need point only to a "conspicuous . . . imbalance in
traditionally segregated job categories."
Id. at
443 U. S. 209.
Our decision was grounded in the recognition that voluntary
employer action can play a crucial role in furthering Title VII's
purpose of eliminating the effects of discrimination in the
workplace, and that Title VII should not be read to thwart such
efforts.
Id. at
443 U. S. 204.
[
Footnote 8]
Page 480 U. S. 631
In reviewing the employment decision at issue in this case, we
must first examine whether that decision was made pursuant to a
plan prompted by concerns similar to those of the employer in
Weber. Next, we must determine whether the effect of the
Plan on males and nonminorities is comparable to the effect of the
plan in that case.
The first issue is therefore 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."
Id. at
443 U. S. 197.
In determining whether an imbalance exists that would justify
taking sex or race into account, a
Page 480 U. S. 632
comparison of the percentage of minorities or women in the
employer's workforce with the percentage in the area labor market
or general population is appropriate in analyzing jobs that require
no special expertise,
see Teamsters v. United States,
431 U. S. 324
(1977) (comparison between percentage of blacks in employer's
workforce and in general population proper in determining extent of
imbalance in truck driving positions), or training programs
designed to provide expertise,
see Steelworkers v. Weber,
443 U. S. 193
(1979) (comparison between proportion of blacks working at plant
and proportion of blacks in area labor force appropriate in
calculating imbalance for purpose of establishing preferential
admission to craft training program). Where a job requires special
training, however, the comparison should be with those in the labor
force who possess the relevant qualifications.
See Hazelwood
School District v. United States, 433 U.
S. 299 (1977) (must compare percentage of blacks in
employer's work ranks with percentage of qualified black teachers
in area labor force in determining underrepresentation in teaching
positions). 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
benefiting from the plan will not be unduly infringed.
A manifest imbalance need not be such that it would support a
prima facie case against the employer, as suggested in
JUSTICE O'CONNOR'S concurrence,
post at
480 U. S. 649,
since we do not regard as identical the constraints of Title VII
and the Federal Constitution on voluntarily adopted affirmative
action plans. [
Footnote 9]
Application of the "
prima facie" standard in Title VII
cases would be inconsistent with
Weber's focus on
Page 480 U. S. 633
statistical imbalance, [
Footnote 10] and could inappropriately create a
significant disincentive for employers to adopt an affirmative
action plan.
See Weber, supra, at
443 U. S. 204
(Title VII intended as a "catalyst" for employer efforts to
eliminate vestiges of discrimination). A corporation concerned with
maximizing return on investment, for instance, is hardly likely to
adopt a plan if in order to do so it must compile evidence that
could be used to subject it to a colorable Title VII suit.
[
Footnote 11]
Page 480 U. S. 634
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," App. 57, for women to find employment in certain job
classifications "where women have not been traditionally employed
in significant numbers."
Id. at 51. [
Footnote 12] 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.
Id. at 51-52. 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. "
Id. at 43.
Page 480 U. S. 635
As an initial matter, 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. [
Footnote 13] 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."
Id. at 56. 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.
Id. at 61-64. 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. Id. at 64. 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."
Ibid. 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.
Id. at 68-64. From the outset,
therefore, the Plan sought annually to develop even more refined
measures of the underrepresentation in each job category that
required attention.
Page 480 U. S. 636
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% for that
category.
We reject petitioner's argument that, since only the long-term
goal was in place for Skilled Craft positions at the time of
Joyce's promotion, it was inappropriate for the Director to take
into account affirmative action considerations in filling the road
dispatcher position. 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. . . ."
Sheet Metal Workers v.
EEOC, 478
Page 480 U. S. 637
U.S. 421,
478 U. S. 495
(1986) (O'CONNOR, J., concurring in part and dissenting in
part).
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. Thus,
despite the fact that no precise short-term goal was yet in place
for the Skilled Craft category in mid-1980, the Agency's management
nevertheless 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. [
Footnote
14] The promotion of Joyce thus satisfies the first requirement
enunciated in
Weber, 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
Page 480 U. S. 638
bar to their advancement. In contrast to the plan in
Weber, which provided that 50% of the positions in the
craft training program were exclusively for blacks, and to the
consent decree upheld last Term in
Firefighters v.
Cleveland, 478 U. S. 501
(1986), which required the promotion of specific numbers of
minorities, 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."
App. 64. 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. Tr. 68. The Plan thus resembles the "Harvard Plan"
approvingly noted by JUSTICE POWELL in Regents of University of
California v. Bakke, 438 U. S. 265,
438 U. S.
316-319 (1978), which considers race along with other
criteria in determining admission to the college. As JUSTICE POWELL
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."
Id. at
438 U. S. 317.
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, petitioner 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 petitioner.
Furthermore, while petitioner in this case 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. [
Footnote
15]
Page 480 U. S. 639
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, nondiscriminatory 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." Tr. 48-49.
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. [
Footnote 16] 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
Page 480 U. S. 640
only temporary may be necessary if the program actually sets
aside positions according to specific numbers.
See, e.g.,
Firefighters, supra, at
478 U. S. 510
(4-year duration for consent decree providing for promotion of
particular number of minorities);
Weber, 443 U.S. at
443 U. S. 199
(plan requiring that blacks constitute 50% of new trainees in
effect until percentage of employer workforce equal to percentage
in local labor force). 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 underrepresention of
minorities and women.
Sheet Metal Workers, 478 U.S. at
478 U. S.
477-478. 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.
III
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' consistent emphasis on
the value of
voluntary efforts to further the objectives of the law.'"
Wygant, 476 U.S. at 476 U. S. 290
(O'CONNOR, J., concurring in part and concurring in judgment)
(quoting Bakke, supra, at 438 U. S.
364). 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,
Page 480 U. S. 641
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. [
Footnote 17] 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
Page 480 U. S. 642
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.
[
Footnote 1]
Section 703(a) of the Act, 78 Stat. 255,
as amended, 86
Stat. 109, 42 U.S.C. § 2000e 2(a), provides that it
"shall be an unlawful employment practice for an employer --
"
"(1) to fail or refuse to hire or to discharge any individual,
or otherwise to discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of employment,
because of such individual's race, color, religion, sex, or
national origin; or"
"(2) to limit, segregate, or classify his employees or
applicants for employment in any way which would deprive or tend to
deprive any individual of employment opportunities or otherwise
adversely affect his status as an employee, because of such
individual's race, color, religion, sex, or national origin."
[
Footnote 2]
No constitutional issue was either raised or addressed in the
litigation below.
See 770 F.2d 752, 754, n. 1 (1985). We
therefore decide in this case only the issue of the prohibitory
scope of Title VII. Of course, where the issue is properly raised,
public employers must justify the adoption and implementation of a
voluntary affirmative action plan under the Equal Protection
Clause.
See Wygant v. Jackson Board of Education,
476 U. S. 267
(1986).
[
Footnote 3]
The Plan reaffirmed earlier County and Agency efforts to address
the issue of employment discrimination, dating back to the County's
adoption in 1971 of an Equal Employment Opportunity Policy. App.
37-40.
[
Footnote 4]
While minorities constituted 19.7% of the County labor force,
they represented 7.1% of the Agency's Officials and Administrators,
19% of its Professionals, and 16.9% of its Technicians.
Id. at 48.
[
Footnote 5]
Joyce testified that she had had disagreements with two of the
three members of the second interview panel. One had been her first
supervisor when she began work as a road maintenance worker. In
performing arduous work in this job, she had not been issued
coveralls, although her male coworkers had received them. After
ruining her pants, she complained to her supervisor, to no avail.
After three other similar incidents, ruining clothes on each
occasion, she filed a grievance, and was issued four pairs of
coveralls the next day. Tr. 89-90. Joyce had dealt with a second
member of the panel for a year and a half in her capacity as chair
of the Roads Operations Safety Committee, where she and he "had
several differences of opinion on how safety should be
implemented."
Id. at 90-91. In addition, Joyce testified
that she had informed the person responsible for arranging her
second interview that she had a disaster preparedness class on a
certain day the following week. By this time, about 10 days had
passed since she had notified this person of her availability, and
no date had yet been set for the interview. Within a day or two
after this conversation, however, she received a notice setting her
interview at a time directly in the middle of her disaster
preparedness class.
Id. at 94-95. This same panel member
had earlier described Joyce as a "rebel-rousing, skirt-wearing
person,"
id. at 153.
[
Footnote 6]
JUSTICE SCALIA's dissent maintains that the obligations of a
public employer under Title VII must be identical to its
obligations under the Constitution, and that a public employer's
adoption of an affirmative action plan therefore should be governed
by
Wygant. This rests on the following logic: Title VI
embodies the same constraints as the Constitution; Title VI and
Title VII have the same prohibitory scope; therefore, Title VII and
the Constitution are coterminous for purposes of this case. The
flaw is with the second step of the analysis, for it advances a
proposition that we explicitly considered and rejected in
Weber. As we noted in that case, Title VI was an exercise
of federal power "over a matter in which the Federal Government was
already directly involved," since Congress "was legislating to
assure federal funds would not be used in an improper manner." 443
U.S. at
443 U. S. 206,
n. 6.
"Title VII, by contrast, was enacted pursuant to the commerce
power to regulate purely private decisionmaking, and was not
intended to incorporate and particularize the commands of the Fifth
and Fourteenth Amendments. Title VII and Title VI, therefore,
cannot be read
in pari materia."
Ibid. This point is underscored by Congress' concern
that the receipt of any form of financial assistance might render
an employer subject to the commands of Title VI rather than Title
VII. As a result, Congress added § 604 to Title VI, 78 Stat. 263,
as set forth in 42 U.S.C. § 2000d-3, which provides:
"Nothing contained in this subchapter shall be construed to
authorize action under this subchapter by any department or agency
with respect to any employment practice of any employer, employment
agency, or labor organization except where a primary objective of
the Federal financial assistance is to provide employment."
The sponsor of this section, Senator Cooper, stated that it was
designed to clarify that "it was not intended that [T]itle VI would
impinge on [T]itle VII." 110 Cong.Rec. 11616 (1964).
While public employers were not added to the definition of
"employer" in Title VII until 1972, there is no evidence that this
mere addition to the definitional section of the statute was
intended to transform the substantive standard governing employer
conduct. Indeed, "Congress expressly indicated the intent that the
same Title VII principles be applied to governmental and private
employers alike."
Dothard v. Rawlinson, 433 U.
S. 321,
433 U. S. 332,
n. 14 (1977). The fact that a public employer must also satisfy the
Constitution does not negate the fact that the statutory
prohibition with which that employer must contend was not intended
to extend as far as that of the Constitution.
[
Footnote 7]
JUSTICE SCALIA's dissent maintains that
Weber's
conclusion that Title VII does not prohibit voluntary affirmative
action programs "rewrote the statute it purported to construe."
Post at
480 U. S. 670.
Weber's decisive rejection of the argument that the "plain
language" of the statute prohibits affirmative action rested on (1)
legislative history indicating Congress' clear intention that
employers play a major role in eliminating the vestiges of
discrimination, 443 U.S. at
443 U. S.
201-204, and (2) the language and legislative history of
§ 703(j) of the statute, which reflect a strong desire to preserve
managerial prerogatives so that they might be utilized for this
purpose.
Id. at
443 U. S.
204-207. As JUSTICE BLACKMUN said in his concurrence in
Weber,
"[I]f the Court has misperceived the political will, it has the
assurance that, because the question is statutory, Congress may set
a different course if it so chooses."
Id. at
443 U. S. 216.
Congress has not amended the statute to reject our construction,
nor have any such amendments even been proposed, and we therefore
may assume that our interpretation was correct.
JUSTICE SCALlA's dissent faults the fact that we take note of
the absence of congressional efforts to amend the statute to
nullify
Weber. It suggests that congressional inaction
cannot be regarded as acquiescence under all circumstances, but
then draws from that unexceptional point the conclusion that
any reliance on congressional failure to act is
necessarily a "canard."
Post at
480 U. S. 672.
The fact that inaction may not always provide crystalline
revelation, however, should not obscure the fact that it may be
probative to varying degrees.
Weber, for instance, was a
widely publicized decision that addressed a prominent issue of
public debate. Legislative inattention thus is not a plausible
explanation for congressional inaction. Furthermore, Congress not
only passed no contrary legislation in the wake of
Weber,
but not one legislator even proposed a bill to do so. The barriers
of the legislative process therefore also seem a poor explanation
for failure to act. By contrast, when Congress has been displeased
with our interpretation of Title VII, it has not hesitated to amend
the statute to tell us so. For instance, when Congress passed the
Pregnancy Discrimination Act of 1978, 42 U.S.C. § 2000e(k),
"it unambiguously expressed its disapproval of both the holding
and the reasoning of the Court in [
General Electric Co. v.
Gilbert, 429 U. S. 125 (1976)]."
Newport News Shipbuilding & Dry Dock Co. v. EEOC,
462 U. S. 669,
462 U. S. 678
(1983). Surely, it is appropriate to find some probative value in
such radically different congressional reactions to this Court's
interpretations of the same statute.
As one scholar has put it,
"When a court says to a legislature: 'You (or your predecessor)
meant X,' it almost invites the legislature to answer: 'We did
not.'"
G. Calabresi, A Common Law for the Age of Statutes 31-32 (1982).
Any belief in the notion of a dialogue between the judiciary and
the legislature must acknowledge that, on occasion, an invitation
declined is as significant as one accepted.
[
Footnote 8]
See also
Firefighters v. Cleveland, 478 U.
S. 501,
478 U. S. 515
(1986) ("We have on numerous occasions recognized that Congress
intended voluntary compliance to be the preferred means of
achieving the objectives of Title VII");
Alexander v.
Gardner-Denver Co., 415 U. S. 36,
415 U. S. 44
(1974) ("Cooperation and voluntary compliance were selected as the
preferred means for achieving [Title VII's] goal"). JUSTICE
SCALIA's suggestion that an affirmative action program may be
adopted only to redress an employer's past discrimination,
see
post at
480 U. S.
664-665, was rejected in
Steelworkers v. Weber,
443 U. S. 193
(1979), because the prospect of liability created by such an
admission would create a significant disincentive for voluntary
action. As JUSTICE BLACKMUN'S concurrence in that case pointed out,
such a standard would
"plac[e] voluntary compliance with Title VII in profound
jeopardy. The only way for the employer and the union to keep their
footing on the 'tightrope' it creates would be to eschew all forms
of voluntary affirmative action."
Id. at
443 U. S. 210.
Similarly, JUSTICE O'CONNOR has observed in the constitutional
context that
"[t]he imposition of a requirement that public employers make
findings that they have engaged in illegal discrimination before
they engage in affirmative action programs would severely undermine
public employers' incentive to meet voluntarily their civil rights
obligations."
Wygant, 476 U.S. at
476 U. S. 290
(O'CONNOR, J., concurring in part and concurring in judgment).
Contrary to JUSTICE ScALIA's contention,
post at
480 U. S.
664-668, our decisions last term in
Firefighters,
supra, and
Sheet Metal Workers v. EEOC, 478 U.
S. 501 (1986), provide no support for a standard more
restrictive than that enunciated in
Weber.
Firefighters raised the issue of the conditions under
which parties could enter into a consent decree providing for
explicit numerical quotas. By contrast, the affirmative action plan
in this case sets aside no positions for minorities or women.
See infra at
480 U. S. 635.
In
Sheet Metal Workers, the issue we addressed was the
scope of judicial remedial authority under Title VII, authority
that has not been exercised in this case. JUSTICE SCALlA's
suggestion that employers should be able to do no more voluntarily
than courts can order as remedies,
post at
480 U. S.
664-668, ignores the fundamental difference between
volitional private behavior and the exercise of coercion by the
State. Plainly, "Congress' concern that federal courts not impose
unwanted obligations on employers and unions,"
Firefighters,
supra, at
478 U. S. 524,
reflects a desire to preserve a relatively large domain for
voluntary employer action.
[
Footnote 9]
See n 6,
supra.
[
Footnote 10]
The difference between the "manifest imbalance" and "
prima
facie" standards is illuminated by
Weber. Had the
Court in that case been concerned with past discrimination by the
employer, it would have focused on discrimination in hiring
skilled, not unskilled, workers, since only the scarcity of the
former in Kaiser's workforce would have made it vulnerable to a
Title VII suit. In order to make out a
prima facie case on
such a claim, a plaintiff would be required to compare the
percentage of black skilled workers in the Kaiser workforce with
the percentage of black skilled craft workers in the area labor
market.
Weber obviously did not make such a comparison.
Instead, it focused on the disparity between the percentage of
black skilled craft workers in Kaiser's ranks and the percentage of
blacks in the area labor force. 443 U.S. at
443 U. S.
198-199. Such an approach reflected a recognition that
the proportion of black craft workers in the local labor force was
likely as miniscule as the proportion in Kaiser's workforce. The
Court realized that the lack of imbalance between these figures
would mean that employers in precisely those industries in which
discrimination has been most effective would be precluded from
adopting training programs to increase the percentage of qualified
minorities. Thus, in cases such as
Weber, where the
employment decision at issue involves the selection of unskilled
persons for a training program, the "manifest imbalance" standard
permits comparison with the general labor force. By contrast, the
"
prima facie" standard would require comparison with the
percentage of minorities or women qualified for the job for which
the trainees are being trained, a standard that would have
invalidated the plan in
Weber itself.
[
Footnote 11]
In some cases, of course, the manifest imbalance may be
sufficiently egregious to establish a
prima facie case.
However, as long as there is a manifest imbalance, an employer may
adopt a plan even where the disparity is not so striking, without
being required to introduce the nonstatistical evidence of past
discrimination that would be demanded by the "
prima facie"
standard.
See, e.g., Teamsters v. United States,
431 U. S. 324,
431 U. S. 339
(1977) (statistics in pattern and practice case supplemented by
testimony regarding employment practices). Of course, when there is
sufficient evidence to meet the more stringent "
prima
facie" standard, be it statistical, nonstatistical, or a
combination of the two, the employer is free to adopt an
affirmative action plan.
[
Footnote 12]
For instance, the description of the Skilled Craft Worker
category, in which the road dispatcher position is located, is as
follows:
"Occupations in which workers perform jobs which require special
manual skill and a thorough and comprehensive knowledge of the
process involved in the work which is acquired through on-the-job
training and experience or through apprenticeship or other formal
training programs. Includes: mechanics and repairmen; electricians,
heavy equipment operators, stationary engineers, skilled machining
occupations, carpenters, compositors and typesetters, and kindred
workers."
App. 108.
As the Court of Appeals said in its decision below,
"A plethora of proof is hardly necessary to show that women are
generally underrepresented in such positions and that strong social
pressures weigh against their participation."
748 F.2d at 1313.
[
Footnote 13]
Because of the employment decision at issue in this case, our
discussion henceforth refers primarily to the Plan's provisions to
remedy the underrepresentation of women. Our analysis could apply
as well, however, to the provisions of the plan pertaining to
minorities.
[
Footnote 14]
In addition, the Agency was mindful of the importance of finally
hiring a woman in a job category that had formerly been all male.
The Director testified that, while the promotion of Joyce "made a
small dent, for sure, in the numbers," nonetheless
"philosophically it made a larger impact in that it probably has
encouraged other females and minorities to look at the possibility
of so-called 'non-traditional' jobs as areas where they and the
agency both have samples of a success story."
Tr. 64.
[
Footnote 15]
Furthermore, from 1978 to 1982, Skilled Craft jobs in the Agency
increased from 238 to 349. The Agency's personnel figures indicate
that the Agency fully expected most of these positions to be filled
by men. Of the 111 new Skilled Craft jobs during this period, 105,
or almost 95%, went to men. As previously noted, the Agency's 1982
Plan set a goal of hiring only 3 women out of the 55 new Skilled
Craft positions projected for that year, a figure of about 6%.
While this degree of employment expansion by an employer is by no
means essential to a plan's validity, it underscores the fact that
the Plan in this case in no way significantly restricts the
employment prospects of such persons. Illustrative of this is the
fact that an additional road dispatcher position was created in
1983, and petitioner was awarded the job. Brief for Respondent
Transportation Agency 36, n. 35.
[
Footnote 16]
As the Agency Plan stated, after noting the limited number of
minorities and women qualified in certain categories, as well as
other difficulties in remedying underrepresentation:
"As indicated by the above factors, it will be much easier to
attain the Agency's employment goals in some job categories than in
others. It is particularly evident that it will be extremely
difficult to significantly increase the representation of women in
technical and skilled craft job classifications where they have
traditionally been greatly underrepresented. Similarly, only
gradual increases in the representation of women, minorities or
handicapped persons in management and professional positions can
realistically be expected, due to the low turnover that exists in
these positions and the small numbers of persons who can be
expected to compete for available openings."
App. 58.
[
Footnote 17]
JUSTICE SCALIA'S dissent predicts that today's decision will
loose a flood of "less qualified" minorities and women upon the
workforce, as employers seek to forestall possible Title VII
liability.
Post at
480 U. S.
673-677. The first problem with this projection is that
it is by no means certain that employers could in every case
necessarily avoid liability for discrimination merely by adopting
an affirmative action plan. Indeed, our unwillingness to require an
admission of discrimination as the price of adopting a plan has
been premised on concern that the potential liability to which such
an admission would expose an employer would serve as a disincentive
for creating an affirmative action program.
See n 8,
supra.
A second, and more fundamental, problem with JUSTICE SCALIA'S
speculation is that he ignores the fact that
"[i]t is a standard tenet of personnel administration that there
is rarely a single 'best qualified' person for a job. An effective
personnel system will bring before the selecting official several
fully qualified candidates who each may possess different
attributes which recommend them for selection. Especially where the
job is an unexceptional, middle-level craft position, without the
need for unique work experience or educational attainment and for
which several well qualified candidates are available, final
determinations as to which candidate is 'best qualified' are at
best subjective."
Brief for the American Society for Personnel Administration as
Amicus Curiae 9.
This case provides an example of precisely this point. Any
differences in qualifications between Johnson and Joyce were
minimal, to say the least.
See supra at
480 U. S.
623-625. The selection of Joyce thus belies JUSTICE
SCALlA's contention that the beneficiaries of affirmative action
programs will be those employees who are merely not "utterly
unqualified."
Post at
480 U. S.
675.
JUSTICE STEVENS, concurring.
While I join the Court's opinion, I write separately to explain
my view of this case's position in our evolving antidiscrimination
law and to emphasize that the opinion does not establish the
permissible outer limits of voluntary programs undertaken by
employers to benefit disadvantaged groups.
I
Antidiscrimination measures may benefit protected groups in two
distinct ways. As a sword, such measures may confer benefits by
specifying that a person's membership in a disadvantaged group must
be a neutral, irrelevant factor in governmental or private
decisionmaking or, alternatively, by compelling decisionmakers to
give favorable consideration to disadvantaged group status. As a
shield, an antidiscrimination statute can also help a member of a
protected class by assuring decisionmakers in some instances that,
when they elect for good reasons of their own to grant a preference
of some sort to a minority citizen, they will not violate the law.
The Court properly holds that the statutory shield allowed
respondent to take Diane Joyce's sex into account in promoting her
to the road dispatcher position.
Prior to 1978, the Court construed the Civil Rights Act of 1964
as an absolute blanket prohibition against discrimination which
neither required nor permitted discriminatory preferences
Page 480 U. S. 643
for any group, minority or majority. The Court unambiguously
endorsed the neutral approach, first in the context of gender
discrimination [
Footnote 2/1] and
then in the context of racial discrimination against a white
person. [
Footnote 2/2] As I
explained in my separate opinion in
Regents of University of
California v. Bakke, 438 U. S. 265,
438 U. S.
412-418 (1978), and as the Court forcefully stated in
McDonald v. Santa Fe Trail Transportation Co.,
427 U. S. 273,
427 U. S. 280
(1976), Congress intended
"'to eliminate all practices which operate to disadvantage the
employment opportunities of any group protected by Title VII,
including Caucasians'"
(citations omitted). If the Court had adhered to that
construction of the Act, petitioner would unquestionably prevail in
this case. But it has not done so.
Page 480 U. S. 644
In the
Bakke case in 1978 and again in
Steelworkers
v. Weber, 443 U. S. 193
(1979), a majority of the Court interpreted the antidiscriminatory
strategy of the statute in a fundamentally different way. The Court
held in the
Weber case that an employer's program designed
to increase the number of black craftworkers in an aluminum plant
did not violate Title VII. [
Footnote
2/3] It remains clear that the Act does not require any
employer to grant preferential treatment on the basis of race or
gender, but since 1978, the Court has unambiguously interpreted the
statute to
permit the voluntary adoption of special
programs to benefit members of the minority groups for whose
protection the statute was enacted. Neither the "same standards"
language used in
McDonald nor the "color blind" rhetoric
used by the Senators and Congressmen who enacted the bill is now
controlling. Thus, as was true in
Runyon v. McCrary,
427 U. S. 160,
427 U. S. 189
(1976) (STEVENS, J., concurring), the only problem for me is
whether to 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. I conclude without hesitation that I
must answer that question in the affirmative, just as I did in
Runyon. Id. at
427 U. S.
191-192.
Bakke and
Weber have been decided, and are now
an important part of the fabric of our law. This consideration is
sufficiently compelling for me to adhere to the basic construction
of this legislation that the Court adopted in
Bakke and in
Weber. There is an undoubted public interest in "stability
and orderly development of the law." 427 U.S. at
427 U. S. 190.
[
Footnote 2/4]
Page 480 U. S. 645
The logic of antidiscrimination legislation requires that
judicial constructions of Title VII leave "breathing room" for
employer initiatives to benefit members of minority groups. If
Title VII had never been enacted, a private employer would be free
to hire members of minority groups for any reason that might seem
sensible from a business or a social point of view. The Court's
opinion in
Weber reflects the same approach; the opinion
relied heavily on legislative history indicating that Congress
intended that traditional management prerogatives be left
undisturbed to the greatest extent possible.
See 443 U.S.
at
443 U. S.
206-207. As we observed last Term,
""[i]t 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
patterns of racial segregation and hierarchy.""
Firefighters v. Cleveland, 478 U.
S. 501,
478 U. S. 516
(1986) (quoting
Weber, 443 U.S. at
443 U. S.
204). In
Firefighters, we again acknowledged
Congress' concern in Title VII to avoid "undue federal interference
with managerial discretion." 478 U.S. at
478 U. S. 519.
[
Footnote 2/5]
Page 480 U. S. 646
As construed in
Weber and in
Firefighters, the
statute does not absolutely prohibit preferential hiring in favor
of minorities; it was merely intended to protect historically
disadvantaged groups
against discrimination, and not to
hamper managerial efforts to benefit members of disadvantaged
groups that are consistent with that paramount purpose. The
preference granted by respondent in this case does not violate the
statute as so construed; the record amply supports the conclusion
that the challenged employment decision served the legitimate
purpose of creating diversity in a category of employment that had
been almost an exclusive province of males in the past.
Respondent's voluntary decision is surely not prohibited by Title
VII as construed in
Weber.
II
Whether a voluntary decision of the kind made by respondent
would ever be prohibited by Title VII is a question we need not
answer until it is squarely presented. Given the interpretation of
the statute the Court adopted in
Weber, I see no reason
why the employer has any duty, prior to granting a preference to a
qualified minority employee, to determine whether his past conduct
might constitute an arguable violation of Title VII. Indeed, in
some instances the employer may find it more helpful to focus on
the future. Instead of retroactively scrutinizing his own or
society's possible exclusions of minorities in the past to
determine the outer limits of a valid affirmative action program --
or indeed, any particular affirmative action decision -- in many
cases the employer will find it more appropriate to consider other
legitimate reasons to give preferences to members of
underrepresented groups.
Page 480 U. S. 647
Statutes enacted for the benefit of minority groups should not
block these forward-looking considerations.
"Public and private employers might choose to implement
affirmative action for many reasons other than to purge their own
past sins of discrimination. The Jackson school board, for example,
said it had done so in part to improve the quality of education in
Jackson -- whether by improving black students' performance or by
dispelling for black and white students alike any idea that white
supremacy governs our social institutions. Other employers might
advance different forward-looking reasons for affirmative action:
improving their services to black constituencies, averting racial
tension over the allocation of jobs in a community, or increasing
the diversity of a workforce, to name but a few examples. Or they
might adopt affirmative action simply to eliminate from their
operations all
de facto embodiment of a system of racial
caste. All of these reasons aspire to a racially integrated future,
but none reduces to 'racial balancing for its own sake.'"
Sullivan, The Supreme Court -- Comment, Sins of Discrimination:
Last Term's Affirmative Action Cases, 100 Harv.L.Rev. 78, 96
(1986).
The Court today does not foreclose other voluntary decisions
based in part on a qualified employee's membership in a
disadvantaged group. Accordingly, I concur.
[
Footnote 2/1]
"Discriminatory preference for any group, minority or majority,
is precisely and only what Congress has proscribed. What is
required by Congress is the removal of artificial, arbitrary, and
unnecessary barriers to employment when the barriers operate
invidiously to discriminate on the basis of racial or other
impermissible classification."
Griggs v. Duke Power Co., 401 U.
S. 424,
401 U. S. 431
(1971).
[
Footnote 2/2]
"Similarly the EEOC, whose interpretations are entitled to great
deference, [401 U.S.] at
401 U. S. 433-434, has
consistently interpreted Title VII to proscribe racial
discrimination in private employment against whites on the same
terms as racial discrimination against nonwhites, holding that to
proceed otherwise would"
"constitute a derogation of the Commission's Congressional
mandate to eliminate all practices which operate to disadvantage
the employment opportunities of any group protected by Title VII,
including Caucasians."
"EEOC Decision No. 74-31, 7 FEP Cases 1326, 1328, CCH EEOC
Decisions � 6404, p. 4084 (1973)."
"This conclusion is in accord with uncontradicted legislative
history to the effect that Title VII was intended to 'cover white
men and white women and all Americans,' 110 Cong.Rec. 2578 (1964)
(remarks of Rep. Celler) and create an 'obligation not to
discriminate against whites,'
id. at 7218 (memorandum of
Sen. Clark).
See also id. at 7213 (memorandum of Sens.
Clark and Case);
id. at 8912 (remarks of Sen. Williams).
We therefore hold today that Title VII prohibits racial
discrimination against the white petitioners in this case upon the
same standards as would be applicable were they Negroes and Jackson
white."
McDonald v. Santa Fe Trail Transportation Co.,
427 U. S. 273,
427 U. S.
279-280 (1976) (footnotes omitted).
[
Footnote 2/3]
Toward the end of its opinion, the Court mentioned certain
reasons why the plan did not impose a special hardship on white
employees or white applicants for employment.
Steelworkers v.
Weber, 443 U.S. at
443 U. S. 208.
I have never understood those comments to constitute a set of
conditions that every race-conscious plan must satisfy in order to
comply with Title VII.
[
Footnote 2/4]
"As Mr. Justice Cardozo remarked with respect to the routine
work of the judiciary:"
"The labor of judges would be increased almost to the breaking
point if every past decision could be reopened in every case, and
one could not lay one's own course of bricks on the secure
foundation of the courses laid by others who had gone before
him."
"Turning to the exceptional case, Mr. Justice Cardozo
noted:"
"[W]hen a rule, after it has been duly tested by experience, has
been found to be inconsistent with the sense of justice or with the
social welfare, there should be less hesitation in frank avowal and
full abandonment. . . . If judges have woefully misinterpreted the
mores of their day, or if the mores of their day are no longer
those of ours, they ought not to tie, in helpless submission, the
hands of their successors."
"In this case, those admonitions favor adherence to, rather than
departure from, precedent."
427 U.S. at
427 U. S.
190-191. Even while writing in dissent in the
Weber case, Chief Justice Burger observed that the result
reached by the majority was one that he "would be inclined to vote
for were I a Member of Congress considering a proposed amendment of
Title VII." 443 U.S. at
443 U. S.
216.
[
Footnote 2/5]
JUSTICE BLACKMUN observed in
Weber, 443 U.S. at
443 U. S. 209,
443 U. S.
214-215 (concurring opinion):
"Strong considerations of equity support an interpretation of
Title VII that would permit private affirmative action to reach
where Title VII itself does not. The bargain struck in 1964 with
the passage.of Title VII guaranteed equal opportunity for white and
black alike, but where Title VII provides no remedy for blacks, it
should not be construed to foreclose private affirmative action
from supplying relief. . . . Absent compelling evidence of
legislative intent, I would not interpret Title VII itself as a
means of 'locking in' the effects of discrimination for which Title
VII provides no remedy."
JUSTICE O'CONNOR, concurring in the judgment.
In
Steelworkers v. Weber, 443 U.
S. 193 (1979), this Court held that § 703(d) of Title
VII does not prohibit voluntary affirmative action efforts if the
employer sought to remedy a "manifest . . . imbalanc[e] in
traditionally segregated job categories."
Id. at
443 U. S. 197.
As JUSTICE SCALIA illuminates with excruciating clarity, § 703 has
been interpreted by
Weber and succeeding cases to permit
what its language read literally would prohibit.
Post at
480 U. S.
669-671;
see also ante at
480 U. S.
642-643
Page 480 U. S. 648
(STEVENS, J., concurring). Section 703(d) prohibits employment
discrimination "against
any individual because of his
race, color, religion, sex, or national origin." 42 U.S.C. §
2000e-2(d) (emphasis added). The
Weber Court, however,
concluded that voluntary affirmative action was permissible in some
circumstances because a prohibition of every type of affirmative
action would "
bring about an end completely at variance with
the purpose of the statute.'" 443 U.S. at 443 U. S. 202
(quoting United States v. Public Utilities Comm'n,
345 U. S. 295,
345 U. S. 315
(1953)). This purpose, according to the Court, was to open
employment opportunities for blacks in occupations that had been
traditionally closed to them.
None of the parties in this case have suggested that we overrule
Weber, and that question was not raised, briefed, or
argued in this Court or in the courts below. If the Court is
faithful to its normal prudential restraints and to the principle
of
stare decisis, we must address once again the propriety
of an affirmative action plan under Title VII in light of our
precedents, precedents that have upheld affirmative action in a
variety of circumstances. This time the question posed is whether a
public employer violates Title VII by promoting a qualified woman
rather than a marginally better qualified man when there is a
statistical imbalance sufficient to support a claim of a pattern or
practice of discrimination against women under Title VII.
I concur in the judgment of the Court in light of our
precedents. I write separately, however, because the Court has
chosen to follow an expansive and ill-defined approach to voluntary
affirmative action by public employers despite the limitations
imposed by the Constitution and by the provisions of Title VII, and
because JUSTICE SCALIA'S dissent rejects the Court's precedents and
addresses the question of how Title VII should be interpreted as if
the Court were writing on a clean slate. The former course of
action gives insufficient guidance to courts and litigants; the
latter course of action serves as a useful point of academic
discussion, but fails
Page 480 U. S. 649
to reckon with the reality of the course that the majority of
the Court has determined to follow.
In my view, the proper initial inquiry in evaluating the
legality of an affirmative action plan by a public employer under
Title VII is no different from that required by the Equal
Protection Clause. In either case, consistent with the
congressional intent to provide some measure of protection to the
interests of the employer's nonminority employees, the employer
must have had a firm basis for believing that remedial action was
required. An employer would have such a firm basis if it can point
to a statistical disparity sufficient to support a
prima
facie claim under Title VII by the employee beneficiaries of
the affirmative action plan of a pattern or practice claim of
discrimination.
In
Weber, this Court balanced two conflicting concerns
in construing § 703(d): Congress' intent to root out invidious
discrimination against
any person on the basis of race or
gender,
McDonald v. Santa Fe Transportation Co.,
427 U. S. 273
(1976), and its goal of eliminating the lasting effects of
discrimination against minorities. Given these conflicting
concerns, the Court concluded that it would be inconsistent with
the background and purpose of Title VII to prohibit affirmative
action in all cases. As I read
Weber, however, the Court
also determined that Congress had balanced these two competing
concerns by permitting affirmative action only as a remedial device
to eliminate actual or apparent discrimination or the lingering
effects of this discrimination.
Contrary to the intimations in JUSTICE STEVENS' concurrence,
this Court did not approve preferences for minorities "for any
reason that might seem sensible from a business or a social point
of view."
Ante at
480 U. S. 645. Indeed, such an approach would have been
wholly at odds with this Court's holding in
McDonald that
Congress intended to prohibit practices that operate to
discriminate against the employment opportunities of nonminorities
as well as minorities. Moreover, in
Weber the Court was
careful to consider the effects of the affirmative
Page 480 U. S. 650
action plan for black employees on the employment opportunities
of white employees. 443 U.S. at
443 U. S. 208.
Instead of a wholly standardless approach to affirmative action,
the Court determined in
Weber that Congress intended to
permit affirmative action only if the employer could point to a
"manifest . . . imbalanc[e] in traditionally segregated job
categories."
Id. at
443 U. S. 197.
This requirement both
"provides assurance . . . 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,"
ante at
480 U. S. 632,
and is consistent with this Court's and Congress' consistent
emphasis on the value of voluntary efforts to further the
antidiscrimination purposes of Title VII.
Wygant v. Jackson
Board of Education, 476 U. S. 267,
476 U. S. 290
(1986) (O'CONNOR, J., concurring in part and concurring in
judgment).
The
Weber view of Congress' resolution of the
conflicting concerns of minority and nonminority workers in Title
VII appears substantially similar to this Court's resolution of
these same concerns in
Wygant v. Jackson Board of Education,
supra, which involved the claim that an affirmative action
plan by a public employer violated the Equal Protection Clause. In
Wygant, the Court was in agreement that remedying past or
present racial discrimination by a state actor is a sufficiently
weighty interest to warrant the remedial use of a carefully
constructed affirmative action plan. The Court also concluded,
however, that "[s]ocietal discrimination, without more, is too
amorphous a basis for imposing a racially classified remedy."
Id. at
476 U. S. 276.
Instead, we determined that affirmative action was valid if it was
crafted to remedy past or present discrimination by the employer.
Although the employer need not point to any contemporaneous
findings of actual discrimination, I concluded in
Wygant
that the employer must point to evidence sufficient to establish a
firm basis for believing that remedial action is required, and that
a statistical imbalance sufficient for a Title VII
prima
facie
Page 480 U. S. 651
case against the employer would satisfy this firm basis
requirement:
"Public employers are not without reliable benchmarks in making
this determination. For example, demonstrable evidence of a
disparity between the percentage of qualified blacks on a school's
teaching staff and the percentage of qualified minorities in the
relevant labor pool sufficient to support a
prima facie
Title VII pattern or practice claim by minority teachers would lend
a compelling basis for a competent authority such as the School
Board to conclude that implementation of a voluntary affirmative
action plan is appropriate to remedy apparent prior employment
discrimination."
Id. at
476 U. S.
292.
The
Wygant analysis is entirely consistent with
Weber. In
Weber, the affirmative action plan
involved a training program for unskilled production workers. There
was little doubt that the absence of black craftworkers was the
result of the exclusion of blacks from craft unions.
Steelworkers v. Weber, 443 U.S. at
443 U. S. 198,
n. 1 ("Judicial findings of exclusion from crafts on racial grounds
are so numerous as to make such exclusion a proper subject for
judicial notice"). The employer in
Weber had previously
hired as craftworkers only persons with prior craft experience, and
craft unions provided the sole avenue for obtaining this
experience. Because the discrimination occurred at entry into the
craft union, the "manifest racial imbalance" was powerful evidence
of prior race discrimination. Under our case law, the relevant
comparison for a Title VII
prima facie case in those
circumstances -- discrimination in admission to entry-level
positions such as membership in craft unions -- is to the total
percentage of blacks in the labor force.
See Teamsters v.
United States, 431 U. S. 324
(1977).
cf. Sheet Metal Workers v. EEOC, 478 U.
S. 421,
478 U. S.
437-439 (1986) (observing that lower courts had relied
on comparison to general labor force in finding Title VII violation
by union). Here, however, the evidence of past discrimination is
more complex. The number
Page 480 U. S. 652
of women with the qualifications for entry into the relevant job
classification was quite small. A statistical imbalance between the
percentage of women in the workforce generally and the percentage
of women in the particular specialized job classification,
therefore, does not suggest past discrimination for purposes of
proving a Title VII
prima facie case.
See Hazelwood
School District v. United States, 433 U.
S. 299,
433 U. S. 308,
and n. 13 (1977).
Unfortunately, the Court today gives little guidance for what
statistical imbalance is sufficient to support an affirmative
action plan. Although the Court denies that the statistical
imbalance need be sufficient to make out a
prima facie
case of discrimination against women,
ante at
480 U. S. 632,
the Court fails to suggest an alternative standard. Because both
Wygant and
Weber attempt to reconcile the same
competing concerns, I see little justification for the adoption of
different standards for affirmative action under Title VII and the
Equal Protection Clause.
While employers must have a firm basis for concluding that
remedial action is necessary, neither
Wygant nor
Weber places a burden on employers to prove that they
actually discriminated against women or minorities. Employers
are
"trapped between the competing hazards of liability to
minorities if affirmative action is
not taken to remedy
apparent employment discrimination and liability to nonminorities
if affirmative action
is taken."
Wygant v. Jackson Board of Education, 476 U.S. at
476 U. S. 291
(O'CONNOR, J., concurring in part and concurring in judgment).
Moreover, this Court has long emphasized the importance of
voluntary efforts to eliminate discrimination.
Id. at
476 U. S. 290.
Thus, I concluded in
Wygant that a contemporaneous finding
of discrimination should not be required, because it would
discourage voluntary efforts to remedy apparent discrimination. A
requirement that an employer actually prove that it had
discriminated in the past would also unduly discourage voluntary
efforts to remedy apparent discrimination. As I emphasized in
Wygant, a challenge
Page 480 U. S. 653
to an affirmative action plan
"does not automatically impose upon the public employer the
burden of convincing the court of its liability for prior unlawful
discrimination; nor does it mean that the court must make an actual
finding of prior discrimination based on the employer's proof
before the employer's affirmative action plan will be upheld."
Id. at
476 U. S. 292.
Evidence sufficient for a
prima facie Title VII pattern or
practice claim against the employer itself suggests that the
absence of women or minorities in a workforce cannot be explained
by general societal discrimination alone, and that remedial action
is appropriate.
In applying these principles to this case, it is important to
pay close attention to both the affirmative action plan and the
manner in which that plan was applied to the specific promotion
decision at issue in this case. In December, 1978, the Santa Clara
Transit District Board of Supervisors adopted an affirmative action
plan for the Santa Clara County Transportation Agency (Agency). At
the time the plan was adopted, not one woman was employed in
respondents' 238 skilled craft positions, and the plan recognized
that women
"are not strongly motivated to seek employment in job
classifications where they have not been traditionally employed
because of the limited opportunities that have existed in the past
for them to work in such classifications."
App. 57. Additionally, the plan stated that respondents
recognize[d] that 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,
id. at 31, and that "the selection and appointment
processes are areas where hidden discrimination frequently occurs."
Id. at 71. Thus, respondents had the expectation that the
plan
"should result in improved personnel practices that will benefit
all Agency employees who may have been subjected to discriminatory
personnel practices in the past."
Id. at 35.
Page 480 U. S. 654
The long-term goal of the plan was
"to attain a workforce whose composition in all job levels and
major job classifications approximates the distribution of women .
. . in the Santa Clara County workforce."
Id. at 54. If this long-term goal had been applied to
the hiring decisions made by the Agency, in my view, the
affirmative action plan would violate Title VII.
"[I]t is completely unrealistic to assume that individuals of
each [sex] will gravitate with mathematical exactitude to each
employer . . . absent unlawful discrimination."
Sheet Metal Workers, 478 U.S. at
478 U. S. 494
(O'CONNOR, J., concurring in part and dissenting in part). Thus, a
goal that makes such an assumption, and simplistically focuses on
the proportion of women and minorities in the workforce without
more, is not remedial. Only a goal that takes into account the
number of women and minorities qualified for the relevant position
could satisfy the requirement that an affirmative action plan be
remedial. This long-range goal, however, was never used as a guide
for actual hiring decisions. Instead, the goal was merely a
statement of aspiration, wholly without operational significance.
The affirmative action plan itself recognized the host of reasons
why this goal was extremely unrealistic, App. 56-57, and as I read
the record, the long-term goal was not applied in the promotion
decision challenged in this case. Instead, the plan provided for
the development of short-term goals, which alone were to guide
respondents,
id. at 61, and the plan cautioned that even
these goals "should not be construed as
quotas' that must be
met." Id. at 64. Instead, these short-term goals were to
be focused on remedying past apparent discrimination, and
would
"[p]rovide an objective standard for use in determining if the
representation of minorities, women and handicapped persons in
particular job classifications is at a reasonable level in
comparison with estimates of the numbers of persons from these
groups in the area workforce who can meet the educational and
experience requirements for employment."
Id. at 61.
Page 480 U. S. 655
At the time of the promotion at issue in this case, the
short-term goals had not been fully developed. Nevertheless, the
Agency had already recognized that the long-range goal was
unrealistic, and had determined that the progress of the Agency
should be judged by a comparison to the
qualified women in
the area workforce. As I view the record, the promotion decision in
this case was entirely consistent with the philosophy underlying
the development of the short-term goals.
The Agency announced a vacancy for the position of road
dispatcher in the Agency's Roads Division on December 12, 1979.
Twelve employees applied for this position, including Diane Joyce
and petitioner. Nine of these employees were interviewed for the
position by a two-person board. Seven applicants -- including Joyce
and petitioner -- scored above 70 on this interview, and were
certified as eligible for selection for the promotion. Petitioner
scored 75 on the interview, while Joyce scored 73. After a second
interview, a committee of three agency employees recommended that
petitioner be selected for the promotion to road dispatcher. The
County's Affirmative Action Officer, on the other hand, urged that
Joyce be selected for the position.
The ultimate decision to promote Joyce rather than petitioner
was made by James Graebner, the Director of the Agency. As JUSTICE
SCALIA views the record in this case, the Agency Director made the
decision to promote Joyce rather than petitioner solely on the
basis of sex, and with indifference to the relative merits of the
two applicants.
See post at
480 U. S.
662-663. In my view, however, the record simply fails to
substantiate the picture painted by JUSTICE SCALIA. The Agency
Director testified that he
"tried to look at the whole picture, the combination of
[Joyce,'s] qualifications and Mr. Johnson's qualifications, their
test scores, their experience, their background, affirmative action
matters, things like that."
Tr. 68. Contrary to JUSTICE SCALIA'S suggestion,
post
at
480 U. S. 663,
the Agency Director knew far more than
Page 480 U. S. 656
merely the sex of the candidates and that they appeared on a
list of candidates eligible for the job. The Director had spoken to
individuals familiar with the qualifications of both applicants for
the promotion, and was aware that their scores were rather close.
Moreover, he testified that, over a period of weeks, he had spent
several hours making the promotion decision, suggesting that Joyce
was nOt selected solely on the basis of her sex. Tr. 63.
Additionally, the Director stated that, had Joyce's experience been
less than that of petitioner by a larger margin, petitioner might
have received the promotion.
Id. at 69-70. As the Director
summarized his decision to promote Joyce, the underrepresentation
of women in skilled craft positions was only one element of a
number of considerations that led to the promotion of Ms. Joyce.
Ibid. While I agree with JUSTICE SCALIA'S dissent that an
affirmative action program that automatically and blindly promotes
those marginally qualified candidates falling within a preferred
race or gender category, or that can be equated with a permanent
plan of "proportionate representation by race and sex," would
violate Title VII, I cannot agree that this is such a case. Rather,
as the Court demonstrates, Joyce's sex was simply used as a "plus"
factor.
Ante at
480 U. S.
636-637.
In this case, I am also satisfied that respondents had a firm
basis for adopting an affirmative action program. Although the
District Court found no discrimination against women in fact, at
the time the affirmative action plan was adopted, there were no
women in its skilled craft positions. Petitioner concedes that
women constituted approximately 5% of the local labor pool of
skilled craft workers in 1970. Reply Brief for Petitioner 9. Thus,
when compared to the percentage of women in the qualified
workforce, the statistical disparity would have been sufficient for
a
prima facie Title VII case brought by unsuccessful women
job applicants.
See Teamsters, 431 U.S. at
431 U. S. 342,
n. 23 ("[F]ine tuning of the statistics could not have obscured the
glaring absence of minority line drivers. . . . [T]he company's
inability to rebut the inference
Page 480 U. S. 657
of discrimination came not from a misuse of statistics, but from
the inexorable zero'").
In sum, I agree that respondents' affirmative action plan, as
implemented in this instance with respect to skilled craft
positions, satisfies the requirements of
Weber and of
Wygant. Accordingly, I concur in the judgment of the
Court.
JUSTICE WHITE, dissenting.
I agree with Parts I and II of JUSTICE SCALIA'S dissenting
opinion. Although I do not join Part III, I also would overrule
Weber. My understanding of
Weber was, and is,
that the employer's plan did not violate Title VII, because it was
designed to remedy the intentional and systematic exclusion of
blacks by the employer and the unions from certain job categories.
That is how I understood the phrase "traditionally segregated jobs"
that we used in that case. The Court now interprets it to mean
nothing more than a manifest imbalance between one identifiable
group and another in an employer's labor force. As so interpreted,
that case, as well as today's decision, as JUSTICE SCALIA so well
demonstrates, is a perversion of Title VII. I would overrule
Weber and reverse the judgment below.
JUSTICE SCALIA, with whom THE CHIEF JUSTICE joins, and with whom
JUSTICE WHITE joins in Parts I and II, dissenting.
With a clarity which, had it not proven so unavailing, one might
well recommend as a model of statutory draftsmanship, Title VII of
the Civil Rights Act of 1964 declares:
"It shall be an unlawful employment practice for an employer --
"
"(1) to fail or refuse to hire or to discharge any individual,
or otherwise to discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of employment,
because of such individual's race, color, religion, sex, or
national origin; or "
Page 480 U. S. 658
"(2) to limit, segregate, or classify his employees or
applicants for employment in any way which would deprive or tend to
deprive any individual of employment opportunities or otherwise
adversely affect his status as an employee, because of such
individual's race, color, religion, sex, or national origin."
42 U.S.C. § 2000e-2(a). The Court today completes the process of
converting this from a guarantee that race or sex will
not
be the basis for employment determinations to a guarantee that it
often
will. Ever so subtly, without even alluding to the
last obstacles preserved by earlier opinions that we now push out
of our path, we effectively replace the goal of a
discrimination-free society with the quite incompatible goal of
proportionate representation by race and by sex in the workplace.
Part I of this dissent will describe the nature of the plan that
the Court approves, and its effect upon this petitioner. Part II
will discuss prior holdings that are tacitly overruled, and prior
distinctions that are disregarded. Part III will describe the
engine of discrimination we have finally completed.
I
On October 16, 1979, the County of Santa Clara adopted an
Affirmative Action Program (County plan) which sought the
"attainment of a County workforce whose composition . . .
includes women, disabled persons and ethnic minorities in a ratio
in all job categories that reflects their distribution in the Santa
Clara County area workforce."
App. 113. In order to comply with the County plan and various
requirements imposed by federal and state agencies, the
Transportation Agency adopted, effective December 18, 1978, the
Equal Employment Opportunity Affirmative Action Plan (Agency plan
or plan) at issue here. Its stated long-range goal was the same as
the County plan's:
"to attain a workforce whose composition in all job levels and
major job classifications approximates the distribution of women,
minority and handicapped persons in the Santa Clara County
workforce."
Id.
Page 480 U. S. 659
at 54. The plan called for the establishment of a procedure by
which Division Directors would review the ethnic and sexual
composition of their workforces whenever they sought to fill a
vacancy, which procedure was expected to include
"a requirement that Division Directors indicate why they did
not select minorities, women and handicapped persons if
such persons were on the list of eligibles considered and if the
Division had an underrepresentation of such persons in the job
classification being filled."
Id. at 75 (emphasis in original).
Several salient features of the plan should be noted. Most
importantly, the plan's purpose was assuredly not to remedy prior
sex discrimination by the Agency. It could not have been, because
there was no prior sex discrimination to remedy. The majority, in
cataloging the Agency's alleged misdeeds,
ante at
480 U. S. 624,
n. 5, neglects to mention the District Court's finding that the
Agency
"has not discriminated in the past, and does not discriminate in
the present against women in regard to employment opportunities in
general and promotions in particular."
App. to Pet. for Cert. 13a. This finding was not disturbed by
the Ninth Circuit.
Not only was the plan not directed at the results of past sex
discrimination by the Agency, but its objective was not to achieve
the state of affairs that this Court has dubiously assumed would
result from an absence of discrimination -- an overall workforce
"more or less representative of the racial and ethnic composition
of the population in the community."
Teamsters v. United
States, 431 U. S. 324,
431 U. S. 340,
n. 20 (1977). Rather, the oft-stated goal was to mirror the racial
and sexual composition of the entire county labor force, not merely
in the Agency workforce as a whole, but in each and every
individual job category at the Agency. In a discrimination-free
world, it would obviously be a statistical oddity for every job
category to match the racial and sexual composition of even that
portion of the county workforce
qualified for that job; it
would be utterly miraculous for each of them to match, as the plan
expected, the composition of the
entire workforce.
Page 480 U. S. 660
Quite obviously, the plan did not seek to replicate what a lack
of discrimination would produce, but rather imposed racial and
sexual tailoring that would, in defiance of normal expectations and
laws of probability, give each protected racial and sexual group a
governmentally determined "proper" proportion of each job
category.
That the plan was not directed at remedying or eliminating the
effects of past discrimination is most clearly illustrated by its
description of what it regarded as the "
Factors Hindering Goal
Attainment" --
i.e., the existing impediments to the
racially and sexually representative workforce that it pursued. The
plan noted that it would be "difficult," App. 55, to attain its
objective of across-the-board statistical parity in at least some
job categories, because:
"a. Most of the positions require specialized training and
experience. Until recently, relatively few minorities, women and
handicapped persons sought entry into these positions.
Consequently, the number of persons from these groups in the area
labor force who possess the qualifications required for entry into
such job classifications is limited."
"
* * * *"
"c. Many of the Agency positions where women are
underrepresented involve heavy labor;
e.g., Road
Maintenance Worker. Consequently, few women seek entry into these
positions."
"
* * * *"
"f. Many women are not strongly motivated to seek employment in
job classifications where they have not been traditionally employed
because of the limited opportunities that have existed in the past
for them to work in such classifications."
Id. at 56-57. That is, the qualifications and desires
of women may fail to match the Agency's Platonic ideal of a
workforce. The plan concluded from this, of course, not that the
ideal should be reconsidered, but that its attainment could not be
immediate.
Page 480 U. S. 661
Id. at 58-60. It would, in any event, be rigorously
pursued, by giving
"special consideration to Affirmative Action requirements in
every individual hiring action pertaining to positions where
minorities, women and handicapped persons continue to be
underrepresented."
Id. at 60. [
Footnote
3/1]
Finally, the one message that the plan unmistakably communicated
was that concrete results were expected, and supervisory personnel
would be evaluated on the basis of the affirmative action numbers
they produced. The plan's implementation was expected to
"result in a statistically measurable yearly improvement in the
hiring, training and promotion of minorities, women and handicapped
persons in the major job classifications utilized by the Agency
where these groups are underrepresented."
Id. at 35. Its Preface declared that
"[t]he degree to which each Agency Division
attains the
Plan's objectives will provide a direct measure of that
Division Director's personal commitment to the EEO Policy,"
ibid. (emphasis added), and the plan itself repeated
that
"[t]he degree to which each Division
attains the Agency
Affirmative Action employment goals will provide a measure of
that Director's commitment and effectiveness in carrying out the
Division's EEO Affirmative Action requirements."
Id. at 44 (emphasis added). As noted earlier,
supervisors were reminded of the need to give attention to
affirmative action in every employment decision, and to explain
their reasons for
failing to hire women and minorities
whenever there was an opportunity to do so.
The petitioner in the present case, Paul E. Johnson, had been an
employee of the Agency since 1967, coming there from a private
company where he had been a road dispatcher for 17 years. He had
first applied for the position of Road Dispatcher at the Agency in
1974, coming in second. Several
Page 480 U. S. 662
years later, after a reorganization resulted in a downgrading of
his Road Yard Clerk II position, in which Johnson "could see no
future," Tr. 127, he requested and received a voluntary demotion
from Road Yard Clerk II to Road Maintenance Worker, to increase his
experience and thus improve his chances for future promotion. When
the Road Dispatcher job next became vacant, in 1979, he was the
leading candidate -- and indeed was assigned to work out of class
full-time in the vacancy, from September 1979 until June 1980.
There is no question why he did not get the job.
The fact of discrimination against Johnson is much clearer, and
its degree more shocking, than the majority and JUSTICE O'CONNOR'S
concurrence would suggest -- largely because neither of them
recites a single one of the District Court findings that govern
this appeal, relying instead upon portions of the transcript which
those findings implicitly rejected, and even upon a document
(favorably comparing Joyce to Johnson),
ante at
480 U. S. 625,
that was prepared
after Joyce was selected.
See
App. 27-28; Tr. 223-227. Worth mentioning, for example, is the
trier of fact's determination that, if the Affirmative Action
Coordinator had not intervened, "the decision as to whom to promote
. . . would have been made by [the Road Operations Division
Director]," App. to Pet. for Cert. 12a, who had recommended that
Johnson be appointed to the position.
Ibid. [
Footnote 3/2] Likewise, the even more
extraordinary
Page 480 U. S. 663
findings that James Graebner, the Agency Director who made the
appointment, "did not inspect the applications and related
examination records of either [Paul Johnson] or Diane Joyce before
making his decision,"
ibid., and indeed
"did little or nothing to inquire into the results of the
interview process and conclusions which [were] described as of
critical importance to the selection process."
Id. at 3a. In light of these determinations, it is
impossible to believe (or to think that the District Court
believed) Graebner's self-serving statements relied upon by the
majority and JUSTICE O'CONNOR's concurrence, such as the assertion
that he
"tried to look at the whole picture, the combination of
[Joyce's] qualifications and Mr. Johnson's qualifications, their
test scores, their expertise, their background, affirmative action
matters, things like that,"
Tr. 68 (quoted
ante at
480 U. S. 625;
ante at
480 U. S. 655
(O'CONNOR, J., concurring in judgment)). It was evidently enough
for Graebner to know that both candidates (in the words of
Johnson's counsel, to which Graebner assented) "met the M.Q.'s, the
minimum. Both were minimally qualified." Tr. 25. When asked whether
he had "any basis,"
ibid., for determining whether one of
the candidates was more qualified than the other, Graebner candidly
answered, "No. . . . As I've said, they both appeared, and my
conversations with people tended to corroborate, that they were
both capable of performing the work."
Ibid.
After a 2-day trial, the District Court concluded that Diane
Joyce's gender was "
the determining factor," App. to Pet.
for Cert. 4a, in her selection for the position. Specifically, it
found that,
"[b]ased upon the examination results and the departmental
interview, [Mr. Johnson] was more qualified for
Page 480 U. S. 664
the position of Road Dispatcher than Diane Joyce,"
id. at 12a; that, "[b]ut for [Mr. Johnson's] sex, male,
he would have been promoted to the position of Road Dispatcher,"
id. at 13a; and that, "[b]ut for Diane Joyce's sex,
female, she would not have been appointed to the position. . . ."
Ibid. The Ninth Circuit did not reject these factual
findings as clearly erroneous, nor could it have done so on the
record before us. We are bound by those findings under Federal Rule
of Civil Procedure 52(a).
II
The most significant proposition of law established by today's
decision is that racial or sexual discrimination is permitted under
Title VII when it is intended to overcome the effect, not of the
employer's own discrimination, but of societal attitudes that have
limited the entry of certain races, or of a particular sex, into
certain jobs. Even if the societal attitudes in question consisted
exclusively of conscious discrimination by other employers, this
holding would contradict a decision of this Court rendered only
last Term.
Wygant v. Jackson Board of Education,
476 U. S. 267
(1986), held that the objective of remedying societal
discrimination cannot prevent remedial affirmative action from
violating the Equal Protection Clause.
See id. at
476 U. S. 276;
id. at
476 U. S. 288
(O'CONNOR, J., concurring in part and concurring in judgment);
id. at
476 U. S. 296
(WHITE, J., concurring in judgment). While Mr. Johnson does not
advance a constitutional claim here, it is most unlikely that Title
VII was intended to place a lesser restraint on discrimination by
public actors than is established by the Constitution. The Court
has already held that the prohibitions on discrimination in Title
VI, 42 U.S.C. § 2000d, are at least as stringent as those in the
Constitution.
See Regents of University of California v.
Bakke, 438 U. S. 265,
438 U. S.
286-287 (1978) (opinion of POWELL, J.) (Title VI
embodies constitutional restraints on discrimination);
id.
at
438 U. S.
329-340 (opinion of BRENNAN, WHITE, MARSHALL, and
BLACKMUN, JJ.) (same);
id. at
438 U. S. 416
(opinion of
Page 480 U. S. 665
STEVENS, J., joined by Burger, C.J., and Stewart and REHNQUIST,
JJ.) (Title VI "has independent force, with language and emphasis
in addition to that found in the Constitution") (emphasis
added). There is no good reason to think that Title VII, in this
regard, is any different from Title VI. [
Footnote 3/3] Because, therefore, those justifications
(
e.g., the remedying of past societal wrongs) that are
inadequate to insulate discriminatory action from the racial
discrimination prohibitions of the Constitution are also inadequate
to insulate it from the racial discrimination prohibitions of Title
VII; and because the portions of Title VII at issue here treat race
and sex equivalently;
Wygant, which dealt with race
discrimination, is fully applicable precedent, and is squarely
inconsistent with today's decision. [
Footnote 3/4]
Page 480 U. S. 666
Likewise, on the assumption that the societal attitudes relied
upon by the majority consist of conscious discrimination by
employers, today's decision also disregards the limitations
carefully expressed in last Term's opinions in
Sheet Metal
Workers v. EEOC, 478 U. S. 421
(1986). While those limitations were dicta, it is remarkable to see
them so readily (and so silently) swept away. The question in
Sheet Metal Workers was whether the remedial provision of
Title VII, 42 U.S.C. § 2000e-5(g), empowers courts to order
race-conscious relief for persons who were not identifiable victims
of discrimination. Six Members of this Court concluded that it
does,
under narrowly confined circumstances. The plurality
opinion for four Justices found that race-conscious relief could be
ordered at least when
"an employer or a labor union has engaged in persistent or
egregious discrimination, or where necessary to dissipate the
lingering effects of pervasive discrimination."
478 U.S. at
478 U. S. 445
(opinion of BRENNAN, J., joined by MARSHALL, BLACKMUN, and STEVENS,
JJ.).
See also id. at
478 U. S. 476.
JUSTICE POWELL concluded that race-conscious relief can be ordered
"in cases involving
Page 480 U. S. 667
particularly egregious conduct,"
id. at
476 U. S. 483
(concurring in part and concurring in judgment), and JUSTICE WHITE
similarly limited his approval of race-conscious remedies to
"unusual cases."
Id. at
476 U. S. 499
(dissenting).
See also Firefighters v. Cleveland,
478 U. S. 501,
478 U. S. 533
(1986) (WHITE, J., dissenting) ("I also agree with JUSTICE
BRENNAN's opinion in
Sheet Metal Workers . . . that, in
Title VII cases, enjoining discriminatory practices and granting
relief only to victims of past discrimination is the general rule,
with relief for nonvictims being reserved for particularly
egregious conduct"). There is no sensible basis for construing
Title VII to permit employers to engage in race- or sex-conscious
employment practices that courts would be forbidden from ordering
them to engage in following a judicial finding of discrimination.
As JUSTICE WHITE noted last Term:
"There is no statutory authority for concluding that, if an
employer desires to discriminate against a white applicant or
employee on racial grounds, he may do so without violating Title
VII, but may not be ordered to do so if he objects. In either case,
the harm to the discriminatee is the same, and there is no
justification for such conduct other than as a permissible remedy
for prior racial discrimination practiced by the employer
involved."
Id. at
478 U. S. 533.
The Agency here was not seeking to remedy discrimination -- much
less "unusual" or "egregious" discrimination.
Firefighters, like
Wygant, is given only the most
cursory consideration by the majority opinion.
In fact, however, today's decision goes well beyond merely
allowing racial or sexual discrimination in order to eliminate the
effects of prior societal
discrimination. The majority
opinion often uses the phrase "traditionally segregated job
category" to describe the evil against which the plan is
legitimately (according to the majority) directed. As originally
used in
Steelworkers v. Weber, 443 U.
S. 193 (1979), that phrase described skilled jobs from
which employers and unions
Page 480 U. S. 668
had systematically and intentionally excluded black workers --
traditionally segregated jobs, that is, in the sense of conscious,
exclusionary discrimination.
See id. at
443 U. S.
197-198. But that is assuredly not the sense in which
the phrase is used here. It is absurd to think that the nationwide
failure of road maintenance crews, for example, to achieve the
Agency's ambition of 36.4% female representation is attributable
primarily, if even substantially, to systematic exclusion of women
eager to shoulder pick and shovel. It is a "traditionally
segregated job category"
not in the
Weber sense,
but in the sense that, because of longstanding social attitudes, it
has not been regarded
by women themselves as desirable
work. Or as the majority opinion puts the point, quoting
approvingly the Court of Appeals:
"'A plethora of proof is hardly necessary to show that women are
generally underrepresented in such positions, and that strong
social pressures weigh against their participation.'"
Ante at
480 U. S. 634,
n. 12 (quoting 748 F.2d 1308, 1313 (CA9 1984)). Given this meaning
of the phrase, it is patently false to say that
"[t]he requirement that the 'manifest imbalance' relate to a
'traditionally segregated job category' provides assurance . . .
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."
Ante at
480 U. S. 632.
There are, of course, those who believe that the social attitudes
which cause women themselves to avoid certain jobs and to favor
others are as nefarious as conscious, exclusionary discrimination.
Whether or not that is so (and there is assuredly no consensus on
the point equivalent to our national consensus against intentional
discrimination), the two phenomena are certainly distinct. And it
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.
Page 480 U. S. 669
III
I have omitted from the foregoing discussion the most obvious
respect in which today's decision o'erleaps, without analysis, a
barrier that was thought still to be overcome. In
Weber,
this Court held that a private-sector affirmative action training
program that overtly discriminated against white applicants did not
violate Title VII. However, although the majority does not advert
to the fact, until today the applicability of
Weber to
public employers remained an open question. In
Weber
itself,
see 443 U.S. at
443 U. S. 200,
443 U. S. 204,
and in later decisions,
see Firefighters v. Cleveland,
supra, at
478 U. S. 517;
Wygant, 476 U.S. at
476 U. S. 282,
n. 9 (opinion of POWELL, J.), this Court has repeatedly emphasized
that
Weber involved only a private employer.
See
Williams v. New Orleans, 729 F.2d 1554, 1565 (CA5 1984) (en
banc) (Gee, J., concurring) ("Writing for the Court in
Weber, Justice Brennan went out of his way, on at least
eleven different occasions, to point out that what was there before
the Court was private affirmative action") (footnote omitted). This
distinction between public and private employers has several
possible justifications.
Weber rested in part on the
assertion that the 88th Congress did not wish to intrude too deeply
into private employment decisions.
See 443 U.S. at
443 U. S.
206-207.
See also Firefighters v. Cleveland,
supra, at
478 U. S.
519-521. Whatever validity that assertion may have with
respect to private employers (and I think it negligible), it has
none with respect to public employers or to the 92d Congress that
brought them within Title VII.
See Equal Employment
Opportunity Act of 1972, Pub. L. 92-261, § 2, 86 Stat. 103, 42
U.S.C. § 2000e(a). Another reason for limiting
Weber to
private employers is that state agencies, unlike private actors,
are subject to the Fourteenth Amendment. As noted earlier, it would
be strange to construe Title VII to permit discrimination by public
actors that the Constitution forbids.
In truth, however, the language of 42 U.S.C. § 2000e-2 draws no
distinction between private and public employers,
Page 480 U. S. 670
and the only good reason for creating such a distinction would
be to limit the damage of
Weber. It would be better, in my
view, to acknowledge that case as fully applicable precedent, and
to use the Fourteenth Amendment ramifications -- which
Weber did not address and which are implicated for the
first time here -- as the occasion for reconsidering and overruling
it. It is well to keep in mind just how thoroughly
Weber
rewrote the statute it purported to construe. The language of that
statute, as quoted at the outset of this dissent, is unambiguous:
it is an unlawful employment practice
"to fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of employment,
because of such individual's race, color, religion, sex, or
national origin."
42 U.S.C. § 2000e-2(a).
Weber disregarded the text of
the statute, invoking instead its "
spirit,'" 443 U.S. at
443 U. S. 201
(quoting Holy Trinity Church v. United States,
143 U. S. 457,
143 U. S. 459
(1892)), and "practical and equitable [considerations] only
partially perceived, if perceived at all, by the 88th Congress,"
443 U.S. at 443 U. S. 209
(BLACKMUN, J., concurring). It concluded, on the basis of these
intangible guides, that Title VII's prohibition of intentional
discrimination on the basis of race and sex does not prohibit
intentional discrimination on the basis of race and sex, so long as
it is "designed to break down old patterns of racial [or sexual]
segregation and hierarchy," "does not unnecessarily trammel the
interests of the white [or male] employees," "does not require the
discharge of white [or male] workers and their replacement with new
black [or female] hirees," "does [not] create an absolute bar to
the advancement of white [or male] employees," and "is a temporary
measure . . . not intended to maintain racial [or sexual] balance,
but simply to eliminate a manifest racial [or sexual] imbalance."
Id. at 443 U. S. 208.
In effect, Weber held that the legality of intentional
discrimination by private employers against certain disfavored
groups or individuals is to be judged not by Title VII, but by a
judicially
Page 480 U. S. 671
crafted code of conduct, the contours of which are determined by
no discernible standard, aside from (as the dissent convincingly
demonstrated) the divination of congressional "purposes" belied by
the face of the statute and by its legislative history. We have
been recasting that self-promulgated code of conduct ever since --
and what it has led us to today adds to the reasons for abandoning
it.
The majority's response to this criticism of
Weber,
ante at
480 U. S. 629,
n. 7, asserts that, since
"Congress has not amended the statute to reject our
construction, . . . we . . . may assume that our interpretation was
correct."
This assumption, which frequently haunts our opinions, should be
put to rest. It is based, to begin with, on the patently false
premise that the correctness of statutory construction is to be
measured by what the current Congress desires, rather than by what
the law as enacted meant. To make matters worse, it assays the
current Congress' desires
with respect to the particular
provision in isolation, rather than (the way the provision was
originally enacted) as part of a total legislative package
containing many
quids pro quo. Whereas the statute as
originally proposed may have presented to the enacting Congress a
question such as "Should hospitals be required to provide medical
care for indigent patients, with federal subsidies to offset the
cost?," the question theoretically asked of the later Congress, in
order to establish the "correctness" of a judicial interpretation
that the statute provides no subsidies, is simply "Should the
medical care that hospitals are required to provide for indigent
patients be federally subsidized?" Hardly the same question -- and
many of those legislators who accepted the subsidy provisions in
order to gain the votes necessary for enactment of the care
requirement would not vote for the subsidy in isolation, now that
an unsubsidized care requirement is, thanks to the judicial
opinion, safely on the books. But even accepting the flawed premise
that the intent of the current Congress, with respect to the
provision in isolation, is determinative, one must ignore
rudimentary
Page 480 U. S. 672
principles of political science to draw any conclusions
regarding that intent from the
failure to enact
legislation. The "complicated check on legislation," The Federalist
No. 62, p. 378 (C. Rossiter ed. 1961), erected by our Constitution
creates an inertia that makes it impossible to assert with any
degree of assurance that congressional failure to act represents
(1) approval of the
status quo, as opposed to (2)
inability to agree upon how to alter the
status quo, (3)
unawareness of the
status quo, (4) indifference to the
status quo, or even (5) political cowardice. It is
interesting to speculate on how the principle that congressional
inaction proves judicial correctness would apply to another issue
in the civil rights field, the liability of municipal corporations
under § 1983. In 1961, we held that that statute did not reach
municipalities.
See Monroe v. Pape, 365 U.
S. 167,
365 U. S. 187
(1961). Congress took no action to overturn our decision, but we
ourselves did, in
Monell v. New York City Dept. of Social
Services, 436 U. S. 658,
436 U. S. 663
(1978). On the majority's logic,
Monell was wrongly
decided, since Congress' 17 years of silence established that
Monroe had not "misperceived the political will," and one
could therefore "assume that [
Monroe's] interpretation was
correct." On the other hand, nine years have now gone by since
Monell, and Congress
again has not amended §
1983. Should we now "assume that [
Monell's] interpretation
was correct"? Rather, I think we should admit that vindication by
congressional inaction is a canard.
JUSTICE STEVENS' concurring opinion emphasizes the "undoubted
public interest in
stability and orderly development of the
law,'" ante at 480 U. S. 644
(citation omitted), that often requires adherence to an erroneous
decision. As I have described above, however, today's decision is a
demonstration not of stability and order, but of the instability
and unpredictable expansion which the substitution of judicial
improvisation for statutory text has produced. For a number of
reasons, stare decisis ought not to save Weber.
First, this Court has applied the doctrine of stare
decisis to civil rights
Page 480 U. S. 673
statutes less rigorously than to other laws.
See Maine v.
Thiboutot, 448 U. S. 1,
448 U. S. 33
(1980) (POWELL, J., dissenting);
Monroe v. Pape, supra, at
365 U. S.
221-222 (Frankfurter, J., dissenting in part). Second,
as JUSTICE STEVENS acknowledges in his concurrence,
ante
at
480 U. S. 644,
Weber was itself a dramatic departure from the Court's
prior Title VII precedents, and can scarcely be said to be "so
consistent with the warp and woof of civil rights law as to be
beyond question."
Monell v. New York City Dept. of Social
Services, supra, at
436 U. S. 696.
Third,
Weber was decided a mere seven years ago, and has
provided little guidance to persons seeking to conform their
conduct to the law, beyond the proposition that Title VII does not
mean what it says. Finally,
"even under the most stringent test for the propriety of
overruling a statutory decision . . . -- 'that it appear beyond
doubt . . . that [the decision] misapprehended the meaning of the
controlling provision,'"
436 U.S. at
436 U. S. 700
(quoting
Monroe v. Pape, supra, at
365 U. S. 192
(Harlan, J., concurring)),
Weber should be overruled.
In addition to complying with the commands of the statute,
abandoning
Weber would have the desirable side effect of
eliminating the requirement of willing suspension of disbelief that
is currently a credential for reading our opinions in the
affirmative action field -- from
Weber itself, which
demanded belief that the corporate employer adopted the affirmative
action program "voluntarily," rather than under practical
compulsion from government contracting agencies,
see 443
U.S. at
443 U. S. 204;
to
Bakke, a Title VI case cited as authority by the
majority here,
ante at
480 U. S. 638,
which demanded belief that the University of California took race
into account as merely one of the many diversities to which it felt
it was educationally important to expose its medical students,
see 438 U.S. at
438 U. S.
311-315; to today's opinion, which -- in the face of a
plan obviously designed to force promoting officials to prefer
candidates from the favored racial and sexual classes, warning them
that their "personal commitment" will be determined by how
successfully they "attain" certain numerical goals,
Page 480 U. S. 674
and in the face of a particular promotion awarded to the less
qualified applicant by an official who "did little or nothing" to
inquire into sources "critical" to determining the final
candidates' relative qualifications other than their sex -- in the
face of all this, demands belief that we are dealing here with no
more than a program that "merely authorizes that consideration be
given to affirmative action concerns when evaluating qualified
applicants."
Ante at
480 U. S. 638.
Any line of decisions rooted so firmly in naivete must be
wrong.
The majority emphasizes, as though it is meaningful, that
"
No persons are automatically excluded from consideration;
all are able to have their qualifications weighed against
those of other applicants."
Ibid. One is reminded of the
exchange from Shakespeare's King Henry the Fourth, Part I:
"GLENDOWER: I can call Spirits from the vasty Deep."
"HOTSPUR: Why, so can I, or so can any man. But will they come
when you do call for them?"
Act III, Scene I, lines 53-55. Johnson was indeed entitled to
have his qualifications weighed against those of other applicants
-- but more to the point, he was virtually assured that, after the
weighing, if there was any minimally qualified applicant from one
of the favored groups, he would be rejected.
Similarly hollow is the Court's assurance that we would strike
this plan down if it "failed to take distinctions in qualifications
into account," because that "would dictate mere blind hiring by the
numbers."
Ante at
480 U. S. 636. For what the Court means by "taking
distinctions in qualifications into account" consists of no more
than eliminating from the applicant pool those who are not even
minimally qualified for the job. Once that has been done,
once the promoting officer assures himself that all the candidates
before him are "M.Q.'s" (minimally qualifieds), he can then ignore,
as the Agency Director did here, how much better than minimally
qualified some of the candidates may be, and can proceed to
appoint
Page 480 U. S. 675
from the pool solely on the basis of race or sex, until the
affirmative action "goals" have been reached. The requirement that
the employer "take distinctions in qualifications into account"
thus turns out to be an assurance, not that candidates' comparative
merits will always be considered, but only that none of the
successful candidates selected over the others solely on the basis
of their race or sex will be utterly unqualified. That may be of
great comfort to those concerned with American productivity; and it
is undoubtedly effective in reducing the effect of affirmative
action discrimination upon those in the upper strata of society,
who (unlike road maintenance workers, for example) compete for
employment in professional and semiprofessional fields where, for
many reasons, including most notably the effects of past
discrimination, the numbers of "M.Q." applicants from the favored
groups are substantially less. But I fail to see how it has any
relevance to whether selecting among final candidates solely on the
basis of race or sex is permissible under Title VII, which
prohibits discrimination on the basis of race or sex. [
Footnote 3/5]
Today's decision does more, however, than merely reaffirm
Weber, and more than merely extend it to public actors. It
is impossible not to be aware that the practical effect of our
holding is to accomplish
de facto what the law -- in
language
Page 480 U. S. 676
even plainer than that ignored in
Weber, see 42 U.S.C.
§ 2000e-2(j) -- forbids anyone from accomplishing
de jure:
in many contexts, it effectively
requires employers,
public as well as private, to engage in intentional discrimination
on the basis of race or sex. This Court's prior interpretations of
Title VII, especially the decision in
Griggs v. Duke Power
Co., 401 U. S. 424
(1971), subject employers to a potential Title VII suit whenever
there is a noticeable imbalance in the representation of minorities
or women in the employer's workforce. Even the employer who is
confident of ultimately prevailing in such a suit must contemplate
the expense and adverse publicity of a trial, because the extent of
the imbalance, and the "job relatedness" of his selection criteria,
are questions of fact to be explored through rebuttal and
counterrebuttal of a "
prima facie case" consisting of no
more than the showing that the employer's selection process
"selects those from the protected class at a
significantly'
lesser rate than their counterparts." B. Schlei & P. Grossman,
Employment Discrimination Law 91 (2d ed. 1983). If, however,
employers are free to discriminate through affirmative action,
without fear of "reverse discrimination" suits by their nonminority
or male victims, they are offered a threshold defense against Title
VII liability premised on numerical disparities. Thus, after
today's decision, the failure to engage in reverse
discrimination is economic folly, and arguably a breach of duty to
shareholders or taxpayers, wherever the cost of anticipated Title
VII litigation exceeds the cost of hiring less capable (though
still minimally capable) workers. (This situation is more likely to
obtain, of course, with respect to the least skilled jobs --
perversely creating an incentive to discriminate against precisely
those members of the nonfavored groups least likely to
have profited from societal discrimination in the past.) It is
predictable, moreover, that this incentive will be greatly
magnified by economic pressures brought to bear by government
contracting agencies upon employers who refuse to discriminate in
the fashion
Page 480 U. S. 677
we have now approved. A statute 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 operation of the legal system,
practically compelled.
It is unlikely that today's result will be displeasing to
politically elected officials, to whom it provides the means of
quickly accommodating the demands of organized groups to achieve
concrete, numerical improvement in the economic status of
particular constituencies. Nor will it displease the world of
corporate and governmental employers (many of whom have filed
briefs as
amici in the present case, all on the side of
Santa Clara) for whom the cost of hiring less qualified workers is
often substantially less -- and infinitely more predictable -- than
the cost of litigating Title VII cases and of seeking to convince
federal agencies by nonnumerical means that no discrimination
exists. In fact, the only losers in the process are the Johnsons of
the country, for whom Title VII has been not merely repealed, but
actually inverted. The irony is that these individuals --
predominantly unknown, unaffluent, unorganized -- suffer this
injustice at the hands of a Court fond of thinking itself the
champion of the politically impotent. I dissent.
[
Footnote 3/1]
This renders utterly incomprehensible the majority's assertion
that
"the Agency acknowledged that [its long-term goal] could not by
itself necessarily justify taking into account the sex of
applicants for positions in all job categories."
Ante at
480 U. S.
635.
[
Footnote 3/2]
The character of this intervention, and the reasoning behind it,
was described by the Agency Director in his testimony at trial:
"Q. How did you happen to become involved in this particular
promotional opportunity?"
"A. I . . . became aware that there was a difference of opinion
between specifically the Road Operations people [Mr. Shields] and
the Affirmative Action Director [Mr. Morton] as to the desirability
of certain of the individuals to be promoted."
"
* * * *"
". . . Mr. Shields felt that Mr. Johnson should be appointed to
that position."
"Q. Mr. Morton felt that Diane Joyce should be appointed?"
"A. Mr. Morton was less interested in the particular individual;
he felt that this was an opportunity for us to take a step toward
meeting our affirmative action goals, and because there was only
one person on the [eligibility] list who was one of the protected
groups, he felt that this afforded us an opportunity to meet those
goals through the appointment of that member of a protected
group."
Tr. 16-18.
[
Footnote 3/3]
To support the proposition that Title VII is more narrow than
Title VI, the majority repeats the reasons for the dictum to that
effect set forth in
Steelworkers v. Weber, 443 U.
S. 193,
443 U. S. 206,
n. 6 (1979) -- a case which, as JUSTICE O'CONNOR points out,
ante at
480 U. S.
651-652, could reasonably be read as consistent with the
constitutional standards of
Wygant. Those reasons are
unpersuasive, consisting only of the existence in Title VII of 42
U.S.C. § 2000e-2(j) (the implausibility of which, as a
restriction upon the scope of Title VII, was demonstrated
by CHIEF JUSTICE REHNQUIST's literally unanswered
Weber
dissent) and the fact that Title VI pertains to recipients of
federal funds, while Title VII pertains to employers generally. The
latter fact, while true and perhaps interesting, is not conceivably
a reason for giving to virtually identical categorical language the
interpretation, in one case, that intentional discrimination is
forbidden, and, in the other case, that it is not.
Compare
42 U.S.C. § 2000d ("No person . . . shall, on the ground of race,
color, or national origin, be . . . subjected to discrimination"),
with § 2000e-2(a)(1) (no employer shall "discriminate against any
individual . . . because of such individual's race, color,
religion, sex, or national origin").
[
Footnote 3/4]
JUSTICE O'CONNOR's concurrence at least makes an attempt to
bring this Term into accord with last. Under her reading of Title
VII, an employer may discriminate affirmatively, so to speak, if he
has a "firm basis" for believing that he might be guilty of
(nonaffirmative) discrimination under the Act, and if his action is
designed to remedy that suspected prior discrimination.
Ante at
480 U. S. 649.
This is something of a halfway house between leaving employers
scot-free to discriminate against disfavored groups, as the
majority opinion does, and prohibiting discrimination, as do the
words of Title VII. In the present case, although the District
Court found that in fact no sex discrimination existed, JUSTICE
O'CONNOR would find a "firm basis" for the agency's belief that sex
discrimination existed in the "inexorable zero": the complete
absence, prior to Diane Joyce, of any women in the Agency's skilled
positions. There are two problems with this: First, even positing a
"firm basis" for the Agency's belief in prior discrimination, as I
have discussed above, the plan was patently not
designed to
remedy that prior discrimination, but rather to establish a
sexually representative workforce. Second, even an absolute zero is
not "inexorable." While it may inexorably provide "firm basis" for
belief in the mind of an outside observer, it cannot conclusively
establish such a belief
on the employer's part, since he
may be aware of the particular reasons that account for the zero.
That is quite likely to be the case here, given the nature of the
jobs we are talking about and the list of "
Factors Hindering
Goal Attainment" recited by the Agency plan.
See
supra at
480 U. S. 622.
The question is in any event one of fact, which, if it were indeed
relevant to the outcome, would require a remand to the District
Court, rather than an affirmance.
[
Footnote 3/5]
In a footnote purporting to respond to this dissent's
(nonexistent) "predict[ion] that today's decision will loose a
flood of
less qualified' minorities and women upon the
workforce," ante at 480 U. S. 641,
n. 17, the majority accepts the contention of the American Society
for Personnel Administration that there is no way to determine who
is the best qualified candidate for a job such as Road Dispatcher.
This effectively constitutes appellate reversal of a finding of
fact by the District Court in the present case ("[P]laintiff was
more qualified for the position of Road Dispatcher than Diane
Joyce," App. to Pet. for Cert. 12a). More importantly, it has
staggering implications for future Title VII litigation, since the
most common reason advanced for failing to hire a member of a
protected group is the superior qualification of the hired
individual. I am confident, however, that the Court considers this
argument no more enduring than I do.