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Volume 2 Number 2
SUPREME COURT HEARS AFFIRMATIVE ACTION CASES
by Trina Jones, Student Intern
On Wednesday, November 12, 1986 the Supreme Court heard oral arguments in two affirmative action cases which could set important guidelines on the application of affirmative action programs concerning promotions and thosebased on gender. In Johnson v. Transportation Agency, Santa Clara County, California, cert. granted, 54 U.S.L.W. 3861 (U.S. July 7, 1986) (No. 85-1129) (decision below reported at 748 F.2d 1308 (9th Cir. 1985)), the question before the Court is whether a public agency which implemented an affirmative action plan, adopted without a prior finding of discrimination, ran afoul of Title VII by promoting a qualified woman over a "more qualified" man . The second case, U.S. v. Paradise, cert. granted sub -nom., U.S. v. Paradise, 54 U.S.L.W. 3961 (U.S. July 7, 1936) (No. 85-999) (decision below reported under name Paradise v. Prescott, 767 F.2d 1514, (11th Cir. 1985)), questions the constitutionality of a one-black-for-one-white promotion plan imposed upon a state agency by a District Court to remedy past racial discrimination. (For a thorough discussion of the cases, see the August 1986 CIVIL RIGHTS MONITOR.)
Johnson
Paul Johnson brought suit against the Santa Clara County, Calif. Transportation Agency for promoting a woman instead of him to the position of road crew dispatcher, under a plan voluntarily adopted by the county to increase the percentage of women and minority group members in its work force. Mr. Johnson maintained that he was "more qualified" for the position since he had scored higher than the woman, Diane D. Joyce, on the oral test.
In arguing before the Court, Constance E. Brooks, attorney for Mr. Johnson, asserted that the plan was impermissible since it failed to fall within the standards established by the Court in Weber, 4113 U.S. 193 (1979) which found affirmative action plans permissible if they were designed to break down old patterns of racial segregation, do not unnecessarily trammel the interests of white employees or create an absolute bar to the advancement of white employees, and are established as a temporary measure.
Ms. Brooks also argued that a statistical imbalance is not sufficient to justify an affirmative action program. Rather, such plans should only be used to remedy proven acts of past discrimination. Ms. Brooks asserted that the agency never considered that the statistical imbalance might have been caused by factors other than discrimination. Arguing that the underrepresentation of women in such job categories reflected societal attitudes and a lack of interest among women in those jobs - not necessarily past discrimination, Ms. Brooks concluded that the affirmative action plan lacked a remedial purpose and in fact discriminated against Mr. Johnson on the basis of sex since he would have been promoted to the position of road dispatcher had it not been for his gender.
However, Steven Woodside, who was grilled incessantly by Justice Antonin Scalia during his defense of the Transportation Agency, asserted that one need only show statistically significant underrepresentation - not egregious discrimination - of women or minorities in a workplace when justifying an affirmative action program. Indeed, Mr. Woodside noted that the fact that there were no women in any of the agency's 233 skilled jobs established a "prima facie" case of discrimination. Mr. Woodside also pointed to a previous high court ruling which encouraged employers not to wait for lawsuits, but to hire and promote voluntarily minorities and women to reflect their availability in the labor market. Based upon these assessments, Mr. Woodside concluded, as did the appellate court, that the affirmative action plan fell within the guidelines established by Weber.
Paradise
Arguing against a court ordered one-black-for-one-white promotion plan imposed on the Alabama Department of Public Safety, Solicitor Charles Fried urged the Court to apply the Weber doctrine and direct federal judges to make sure that affirmative action plans are "strictly limited" in scope. Fried asserted that the plan was "wholly arbitrary, excessive, profoundly illegal" and violated the, rights of innocent white state troopers who otherwise would have been promoted. Fried argued that because the plan accorded racial preference to non-victims, it was not narrowly tailored and therefore unjustified. A more acceptable plan, according to the Solicitor, would be one which provided for the promotion of four blacks troopers for every eleven white troopers promoted to reflect the percentage of black troopers currently in entry level positions.
Attorney Richard Cohen, arguing for the black troopers, stated that the one for one promotion plan was justified because of the state's long history of discrimination and its reluctance to take steps to rectify its past. Mr. Cohen argued that the promotion plan was a "reasoned response" to the continued footdragging" by the State police department. Cohen concluded by noting that the 1983 court-ordered remedy should be upheld since it would not operate unless there were qualified blacks to fill the position.
Decisions in the cases are expected by July 1987.
In a related matter, the Supreme Court on December 1 granted the Steelworkers' petition to review United Steelworkers v. Goodman, cert. granted, Dec. 1, 1986 (No. 85-2010) (decision below reported under the name Goodman v. Lukens Steel Co. at 777 F.2d 113 (3rd Cir. 1985)). The questions before the Court are:
(1) whether a labor union may be held liable for a violation of Title VII of the Civil Rights Act of 1964 solely because it failed to take affirmative steps to stop an employer's discrimination against black members of the bargaining unit, and
(2) if such a duty exists, whether a union can be held liable for breach of that duty based on a finding that in filing grievances against the employer's alleged discriminatory actions, the union made the arguments (such as seniority) that it thought best calculated to win the grievances, but those arguments did not include an explicit allegation of race discrimination.
While finding that the union had not discriminated, both lower courts held the union liable for failing "to include racial discrimination as a basis for grievances or other complaints against the company."
In its petition the union argues that it had "voluntarily undertaken a wide range of efforts to prevent employer discrimination" and that "the decisions below wrongly held [it] liable under Title VII to share in the consequences of the employer's wrongs because... in the courts' view, the union did not do enough to prevent or remedy those wrongs." The black employees argue that the union should be held liable for "deliberately choosing not to enforce non discrimination clauses contained in its collective bargaining agreement, where the choice served to perpetuate a discriminatory environment."
The Court is not expected to hear the case until October 1987.
  
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