JOHNSON v. TRANSPORTATION AGENCY 480 U.S. 616 (1987)

Paul Johnson sought promotion to the position of road dispatcher with the Transportation Agency of Santa Clara County, California; he was deemed the best-qualified applicant for the job by a board of interviewers and by the Road Operations Division Director, who normally would have made the promotion decision. But the agency's affirmative-action officer intervened, recommending to the agency director that a woman seeking the position be appointed instead. The agency director agreed, and the woman was selected over Johnson. Johnson subsequently filed a suit alleging sex discrimination, and a federal district court found gender to be "the determining factor" in the promotion. The Supreme Court nevertheless sustained the agency's action, 6–3.

Writing for the majority, Justice william j. brennan invoked the language of united steelworkers v. weber (1979) and argued that the agency's affirmative action program was justified because it sought to correct a "manifest imbalance" that existed in job categories that had been "traditionally segregated" on the basis of gender. According to Brennan, the determination of whether a "manifest imbalance" exists usually rests on the disparity between the percentage of a protected group employed in specific job categories and the percentage of the protected group in the local labor force who are qualified to work in those categories. Precisely how high the disparity has to be before a "manifest imbalance" arises, Brennan did not say; but he did indicate that the requisite disparity was something less than that required in cases like wygant v. jackson board of education (1986), where employees had to establish a prima facie case of discrimination against their employer.

Concurring, Justice john paul stevens sought to push open the door to affirmative action still further. He implied that private employers should be able to discriminate in favor of "disadvantaged" racial and gender groups for a wide variety of reasons, including improving education, "averting racial tension over the allocation of jobs in a community," and "improving … services to black constituencies."

Justice sandra day o'connor concurred in the Court's judgment, but on narrower grounds than the majority. She maintained that affirmative-action programs can be invoked only to remedy past discrimination. But her standard of proof for past discrimination was nearly the same as the majority's standard for "manifest imbalance": a statistical disparity between the percentage of an organization's employees who are members of a protected group and the percentage of the relevant labor pool that is made up of members of the group. Unlike Brennan, however, O'Connor did claim that the disparity must be enough to establish a prima facie case that past discrimination in fact occurred. In the present case this was a distinction without a difference, because O'Connor found that her standard had been met.

Writing for the dissenters, Justice antonin scalia attacked the Court for converting "a statute designed to establish a color-blind and gender-blind workplace … into a powerful engine of racism and sexism.…" Scalia noted that although Brennan cited Weber as controlling, he had in fact dramatically extended Weber by redefining the meaning of the phrase "traditionally segregated job categories." In Weber, the phrase had "described skilled jobs from which employers and unions had systematically and intentionally excluded black workers.…" But in the present case, few women were employed in categories such as road maintenance workers because women themselves did not want the jobs. "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 … 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.…"

John G. West, Jr.
(1992)

Bibliography

Urofsky, Melvin I. 1991 A Conflict of Rights: The Supreme Court and Affirmative Action. New York: Scribners.

U.S. Commission on Civil Rights 1987 Toward an Understanding of Johnson. Clearinghouse Publication 94. Washington, D.C.: U.S. Government Printing Office.