Johnson v. Transportation Agency of Santa Clara County, California

480 U.S. 616

Case Year: 1987

Case Ruling: 6-3, Affirmed

Opinion Justice: Brennan

More Information

Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Blackmun, Marshall, O'Connor, Powell, Stevens


1st Concurring Opinion

Author: Stevens


1st Dissenting Opinion

Author: Scalia


2nd Concurring Opinion

Author: O'Connor


2nd Dissenting Opinion

Author: White


3rd Concurring Opinion



3rd Dissenting Opinion

Author: Rehnquist


Other Concurring Opinions:


In 1978 the Santa Clara County Transportation Agency adopted an affirmative action plan designed to attain equitable representation of minorities, women, and the physically challenged in its workforce. In part, the agency's goal was to achieve "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." Women constituted 36.4 percent of the area labor market, but they occupied significantly lower percentages of the agency's administrative, professional, and skilled craft positions. On the other hand, females were overrepresented (76 percent) in office and clerical jobs.

In December 1979 the agency announced a vacancy for a road dispatcher, a craftworker position. Of the 238 jobs in the craftworker category, none were held by women. Twelve employees applied for the promotion, including Paul Johnson and Diane Joyce. Both had sufficient training and experience to qualify for the position. After an evaluation of their records and two rounds of interviews, Johnson's score was 75 and Joyce's was 73. The selection panel recommended that Johnson receive the promotion. In the meantime, Joyce contacted the agency's affirmative action office and expressed a concern that her candidacy would not be treated fairly. After intervention by the affirmative action coordinator, Joyce got the job.

Johnson filed a complaint under the Civil Rights Act, claiming that he had been denied promotion on account of sex. The federal district court ruled in his favor, finding that sex had been the determining factor in filling the position and that the agency's plan was defective because it was not temporary. The district court further found that, although women were statistically underrepresented in various job categories, there was no evidence of agency discrimination as the cause of that imbalance. The court of appeals reversed, holding that the agency was free to correct the imbalances in its workforce. The appeals court also held that the lack of a specific termination date for the plan was not sufficiently important to invalidate it, especially in the absence of strict quotas. Johnson then appealed to the Supreme Court.



... 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 (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.... 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....

The assessment of the legality of the Agency Plan must be guided by our decision in [ United Steelworkers of America v. ]Weber [1979]. In that case, the 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."...

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."...

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." 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.... Finally, we observed that the plan was a temporary measure, not designed to maintain racial balance, but to "eliminate a manifest racial imbalance."... 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....

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 non-minorities 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."... In determining whether an imbalance exists that would justify taking sex or race into account, a comparison of the percentage of minorities or women in the employer's work force with the percentage in the area labor market or general population is appropriate in analyzing jobs that require no special expertise ... or training programs designed to provide expertise.... Where a job requires special training, however, the comparison should be with those in the labor force who possess the relevant qualifications.... The requirement that the "manifest imbalance" relate to a "traditionally segregated job category" provides assurance both that sex or race will be taken into account in a manner consistent with Title VII's purpose of eliminating the effects of employment discrimination, and that the interests of those employees not benefitting from the plan will not be unduly infringed....

It is clear that the decision to hire Joyce was made pursuant to an Agency plan that directed that sex or race be taken into account for the purpose of remedying underrepresentation. The Agency Plan acknowledged the "limited opportunities that have existed in the past" ... for women to find employment in certain job classifications "where women have not been traditionally employed in significant numbers."... As a result, observed the Plan, women were concentrated in traditionally female jobs in the Agency, and represented a lower percentage in other job classifications than would be expected if such traditional segregation had not occurred.... 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."

As an initial matter, the Agency adopted as a benchmark for measuring progress in eliminating underrepresentation the long-term goal of a work force that mirrored in its major job classifications the percentage of women in the area labor market. Even as it did so, however, the Agency acknowledged that such a figure could not by itself necessarily justify taking into account the sex of applicants for positions in all job categories.... The Plan therefore directed that annual short-term goals be formulated that would provide a more realistic indication of the degree to which sex should be taken into account in filling particular positions.... The Plan stressed that such goals "should not be construed as 'quotas' that must be met," but as reasonable aspirations in correcting the imbalance in the Agency's work force....

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....

... 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....

... Given the obvious imbalance in the Skilled Craft category, and given the Agency's commitment to eliminating such imbalances, it was plainly not unreasonable for the Agency to determine that it was appropriate to consider as one factor the sex of Ms. Joyce in making its decision. The promotion of Joyce thus satisfies the first requirement enunciated inWeber, since it was undertaken to further an affirmative action plan designed to eliminate Agency work force imbalances in traditionally segregated job categories.

We next consider whether the Agency Plan unnecessarily trammeled the rights of male employees or created an absolute bar to their advancement. In contrast to the plan in Weber, which provided that 50% of the positions in the craft training program were exclusively for blacks, ... the Plan sets aside no positions for women. The Plan expressly states that "[t]he `goals' established for each Division should not be construed as 'quotas' that must be met."... Rather, the Plan merely authorizes that consideration be given to affirmative action concerns when evaluating qualified applicants. As the Agency Director testified, the sex of Joyce was but one of numerous factors he took into account in arriving at his decision.... 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 the petitioner. Furthermore, while the 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.

Finally, the Agency's Plan was intended to attain a balanced work force, 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 Agency acknowledged the difficulties that it would confront in remedying the imbalance in its work force, and it anticipated only gradual increases in the representation of minorities and women. It is thus unsurprising that the Plan contains no explicit end date, for the Agency's flexible, case-by-case approach was not expected to yield success in a brief period of time. Express assurance that a program is only temporary may be necessary if the program actually sets aside positions according to specific numbers.... In this case, however, substantial evidence shows that the Agency has sought to take a moderate, gradual approach to eliminating the imbalance in its work force, 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 work force, there is ample assurance that the Agency does not seek to use its Plan to maintain a permanent racial and sexual balance....

We therefore hold that the Agency appropriately took into account as one factor the sex of Diane Joyce in determining that she should be promoted to the road dispatcher position. The decision to do so was made pursuant to an affirmative action plan that represents a moderate, flexible, case-by-case approach to effecting a gradual improvement in the representation of minorities and women in the Agency's work force. 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



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

"(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. section 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....

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.