PERSONNEL ADMINISTRATOR OF MASSACHUSETTS v. FEENEY 442 U.S. 256 (1979)

In selecting applicants for state civil service positions, Massachusetts preferred all qualifying veterans of the armed forces over any qualifying nonveterans. Because fewer than two percent of Massachusetts veterans were women, the preference severely restricted women's public employment opportunities. A nonveteran woman applicant challenged the preference as a denial of the equal protection of the laws; the Supreme Court, 7–2, upheld the preference's constitutionality.

The Court, speaking through Justice potter stewart, followed washington v. davis (1976) and held that sex discrimination, like racial discrimination, is to be found only in purposeful official conduct. A discriminatory impact, of itself, is thus insufficient to establish the sex discrimination that demands the judicial scrutiny set out in craig v. boren (1976). Here the veterans preference disadvantaged nonveteran men as well as women; there was no basis for assuming that the preference was "a pretext for preferring men over women." Rather it was aimed at rewarding the sacrifices of military service and easing the transition from military to civilian life.

justice thurgood marshall dissented, joined by Justice william j. brennan : legislators act for a variety of reasons; the question is whether an improper purpose was one motivating factor in the governmental action. Here the discriminatory impact of the law was not merely foreseeable but inevitable. The result was to relegate female civil servants to jobs traditionally filled by women. Other less discriminatory means were available for rewarding veterans (bonuses, for example); the state's choice of this preference strongly suggested intentional gender discrimination. A similar "foreseeability" argument was persuasive to a majority of the Court four weeks later, in the context of school segregation.

(See columbus board of education v. penick.)

Kenneth L. Karst
(1986)