COURT ACCEPTS AFFIRMATIVE ACTION CASES FOR THE NEXT TERM
The Supreme Court apparently is ready to deal with other unanswered questions on affirmative action. It has granted review of two other decisions for the 1987 term, beginning in October: (1) Johnson v. Transportation Agency, Santa Clara County, _ Calif. and Service Employees Union Local 715, 748 F.2d 1308, (9th Cir. 1985), cert. granted, 54 U.S.L.W. 3861 (U.S. July 7, 1986) (No. 851129), and (2) United States v. Paradise, Paradise v. Prescott, 767 F.2d 1514, (11th Cir. 1985), cert. granted sub nom., U.S. v. Paradise, 54 U.S.L.W. 3961 (U.S. July 7, 1986) (No. 85?999).
JOHNSON
In the Johnson case the Court may determine whether an agency which implemented an affirmative action plan by promoting a qualified women over a "more qualified" man runs afoul of Title VII. Attorneys for Mr. Johnson maintain that the agency promoted a less-qualified female candidate over him, in compliance with an affirmative action plan "adopted solely to eliminate a statistical disparity in the work force, unrelated to sex discrimination." The Santa Clara County transportation agency, in a brief filed in opposition to a petition for review, states that the issue before the court is whether:
...an employer [can] consider gender as a factor in promoting a qualified woman where none of 238 persons employed in the job category were female and where the employer's voluntary affirmative action plan set no quotas, but permitted gender to be a factor in employment decisions until such time as the employer's workforce is representative of the local area labor force?
Background
In 1973 the transportation agency voluntarily adopted an affirmative action plan "to attain a work force whose composition in all major job classifications approximated the distribution of women, minorities, and handicapped persons in the County labor market." The plan did not specifically discuss discrimination, but stated "that women had been traditionally underrepresented in the relevant job classifications" and recognized an "extreme difficulty in increasing 'significantly the represent'. at ion I of women in certain of those technical and skilled-craft jobs."
At that time the agency had 238 skilled craft positions not one of which was held by a woman. In 1979, Paul Johnson and Diane D. Joyce applied for a road dispatcher position. Both applicants were long-time agency employees with similar experience. Ms. Joyce, the only female applicant, placed fourth on an oral examination with a score of 73. Mr. Johnson placed second with a score of 75. After a second oral interview, Mr. Johnson was recommended for the job by the examining board. However, the Affirmative Action Coordinator recommended to the agency Director that Ms. Joyce be appointed to the position pursuant to the affirmative action plan. Ms. Joyce was promoted to the position, and Mr. Johnson filed a suit with the Equal Employment Opportunity Commission and received a right-to-sue letter. Johnson claimed the agency's promotion of Joyce over him violated Title VII's prohibition against sex discrimination.
The district court found that Mr. Johnson was the better qualified applicant, and that but for the issue of gender lie would have been promoted to the position. The agency was ordered to promote Mr. Johnson, award him back pay, and desist from further discrimination. The judge reasoned that the affirmative action plan did not meet the standards established by the Supreme Court in Weber, 4.43 U.S. 193 (1979) which found affirmative action plans permissible it they:
- are designed to eliminate old patterns of racial [gender] segregation and hierarchy;
- do not unnecessarily trammel the interests of the white [male] employees;
- do not create an absolute bar to the advancement of white [male] employees; and
- are established as a temporary measure, not intended to maintain racial [gender] balance but simply to eliminate a manifest racial [gender] imbalance.
The Agency appealed and the U.S. Court of Appeals for the Ninth Circuit, reversed the trial court's decision.
We conclude that the Agency's plan, like the Weber plan, "falls on the permissible side of the line." We hold that the Agency's selection of Joyce, pursuant to the plan, was a lawful effort to remedy an entrenched pattern of manifest imbalance. We are not unsympathetic to the complaint of Johnson and others before our court that employers' attempts to remedy past discrimination sometimes visit burdens upon individual members of the nonminority group. As the Agency plan recognizes, however, "the mere existence of an opportunity for members of [discriminated] groups to apply for jobs ... will not by itself result in timely attainment of parity for currently under represented groups." Affirmative action is necessary and lawful, within the guidelines of Weber, to remedy long?standing imbalances in the work force.
Mr. Johnson appealed and on July 7, 1986 the Supreme Court agreed to review the case.
PARADISE
The question before the Court in Paradise is whether a one-black-for-one-white promotion plan imposed upon a state agency by the district court is permissible under the equal protection guarantees of the Fourteenth and Fifth Amendments to the Constitution. In the Vanguards case, the Court approved such a promotion plan, but it had been instituted pursuant to a consent decree. Solicitor General Charles Fried, and Assistant Attorney General Wm. Bradford Reynolds state in their petition for a writ of certiorari that the question is whether the plan is impermissible because "it accords preferential treatment to black applicants for promotion who have not been identified as actual victims of racial discrimination."
Background
In 1972 a federal district court found that the Alabama Department of Public Safety had "engaged in a blatant and continuous pattern and practice of discriminating against blacks in hiring." The district court found that "in the thirty?seven?year history of the patrol there has never been a black trooper and the only Negroes ever employed by the department have been nonmerit system laborers. This unexplained and unexplainable discriminatory conduct by state officials is unquestionably a violation of the Fourteenth Amendment." The state was ordered to hire one black trooper for each white trooper hired until the force was approximately 25 percent black. The Fifth Circuit Court of Appeals upheld the order.
In 1975 and 1979 additional relief was granted, and the issue of promotions for minority state troopers arose. After the parties were unable to agree on a promotion procedure, the district court on December 15, 1983 ordered that at least 50 percent of all promotions to corporal and to higher ranks be filled by qualified black troopers. The court found that:
On February 10, 1984, less than two months from today, twelve years will have passed since this court condemned the racially discriminatory policies and practices of the Alabama Department of Public Safety. Nevertheless, the effects of these policies and practices remain pervasive and. conspicuous at all ranks above the entry-level position. Of the 6 majors, there is still not one black. Of the 25 captains, there is still not one black. Of the 35 lieutenants, there is still not one black. Of the 65 sergeants, there is still not one black. And of the 66 corporals, only four are black. Thus the department still operates an upper rank structure in which almost every trooper obtained his position through procedures that totally excluded black persons. Moreover, the department is still without acceptable procedures for advancement of black troopers into this structure, and it does not appear that any procedures will be in place within the near future. The preceding scenario is intolerable and must not continue. The time has now arrived for the department to take affirmative and substantial steps to open the upper ranks to black troopers.
On February 6, 1984 eight black and eight white troopers were promoted to the corporal position. The United States, the Alabama Department of Public Safety, and white state troopers appealed to the U.S. Circuit Court of Appeals for the Eleventh Circuit. That court affirmed the district court's one?for?one promotion plan on August 12, 1985. Review was granted by the Supreme Court on July 3, 1986.
