|Johnson v. Transportation Agency
[ Brennan ]
[ Stevens ]
[ O'Connor ]
[ White ]
[ Scalia ]
Johnson v. Transportation Agency
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
JUSTICE SCALIA, with whom THE CHIEF JUSTICE joins, and with whom JUSTICE WHITE joins in Parts I and II, dissenting.
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 [p658]
(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. § 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. Part I of this dissent will describe the nature of the plan that the Court approves, and its effect upon this petitioner. Part II will discuss prior holdings that are tacitly overruled, and prior distinctions that are disregarded. Part III will describe the engine of discrimination we have finally completed.
On October 16, 1979, the County of Santa Clara adopted an Affirmative Action Program (County plan) which sought the
attainment of a County workforce whose composition . . . includes women, disabled persons and ethnic minorities in a ratio in all job categories that reflects their distribution in the Santa Clara County area workforce.
App. 113. In order to comply with the County plan and various requirements imposed by federal and state agencies, the Transportation Agency adopted, effective December 18, 1978, the Equal Employment Opportunity Affirmative Action Plan (Agency plan or plan) at issue here. Its stated long-range goal was the same as the County plan's:
to attain a workforce whose composition in all job levels and major job classifications approximates the distribution of women, minority and handicapped persons in the Santa Clara County workforce.
Id. [p659] at 54. The plan called for the establishment of a procedure by which Division Directors would review the ethnic and sexual composition of their workforces whenever they sought to fill a vacancy, which procedure was expected to include
a requirement that Division Directors indicate why they did not select minorities, women and handicapped persons if such persons were on the list of eligibles considered and if the Division had an underrepresentation of such persons in the job classification being filled.
Id. at 75 (emphasis in original).
Several salient features of the plan should be noted. Most importantly, the plan's purpose was assuredly not to remedy prior sex discrimination by the Agency. It could not have been, because there was no prior sex discrimination to remedy. The majority, in cataloging the Agency's alleged misdeeds, ante at 624, n. 5, neglects to mention the District Court's finding that the Agency
has not discriminated in the past, and does not discriminate in the present against women in regard to employment opportunities in general and promotions in particular.
App. to Pet. for Cert. 13a. This finding was not disturbed by the Ninth Circuit.
Not only was the plan not directed at the results of past sex discrimination by the Agency, but its objective was not to achieve the state of affairs that this Court has dubiously assumed would result from an absence of discrimination -- an overall workforce "more or less representative of the racial and ethnic composition of the population in the community." Teamsters v. United States, 431 U.S. 324, 340, n. 20 (1977). Rather, the oft-stated goal was to mirror the racial and sexual composition of the entire county labor force, not merely in the Agency workforce as a whole, but in each and every individual job category at the Agency. In a discrimination-free world, it would obviously be a statistical oddity for every job category to match the racial and sexual composition of even that portion of the county workforce qualified for that job; it would be utterly miraculous for each of them to match, as the plan expected, the composition of the entire workforce. [p660] Quite obviously, the plan did not seek to replicate what a lack of discrimination would produce, but rather imposed racial and sexual tailoring that would, in defiance of normal expectations and laws of probability, give each protected racial and sexual group a governmentally determined "proper" proportion of each job category.
That the plan was not directed at remedying or eliminating the effects of past discrimination is most clearly illustrated by its description of what it regarded as the "Factors Hindering Goal Attainment" -- i.e., the existing impediments to the racially and sexually representative workforce that it pursued. The plan noted that it would be "difficult," App. 55, to attain its objective of across-the-board statistical parity in at least some job categories, because:
a. Most of the positions require specialized training and experience. Until recently, relatively few minorities, women and handicapped persons sought entry into these positions. Consequently, the number of persons from these groups in the area labor force who possess the qualifications required for entry into such job classifications is limited.
* * * *
c. Many of the Agency positions where women are underrepresented involve heavy labor; e.g., Road Maintenance Worker. Consequently, few women seek entry into these positions.
* * * *
f. Many women are not strongly motivated to seek employment in job classifications where they have not been traditionally employed because of the limited opportunities that have existed in the past for them to work in such classifications.
Id. at 56-57. That is, the qualifications and desires of women may fail to match the Agency's Platonic ideal of a workforce. The plan concluded from this, of course, not that the ideal should be reconsidered, but that its attainment could not be immediate. [p661] Id. at 58-60. It would, in any event, be rigorously pursued, by giving
special consideration to Affirmative Action requirements in every individual hiring action pertaining to positions where minorities, women and handicapped persons continue to be underrepresented.
Id. at 60. [n1]
Finally, the one message that the plan unmistakably communicated was that concrete results were expected, and supervisory personnel would be evaluated on the basis of the affirmative action numbers they produced. The plan's implementation was expected to
result in a statistically measurable yearly improvement in the hiring, training and promotion of minorities, women and handicapped persons in the major job classifications utilized by the Agency where these groups are underrepresented.
Id. at 35. Its Preface declared that
[t]he degree to which each Agency Division attains the Plan's objectives will provide a direct measure of that Division Director's personal commitment to the EEO Policy,
ibid. (emphasis added), and the plan itself repeated that
[t]he degree to which each Division attains the Agency Affirmative Action employment goals will provide a measure of that Director's commitment and effectiveness in carrying out the Division's EEO Affirmative Action requirements.
Id. at 44 (emphasis added). As noted earlier, supervisors were reminded of the need to give attention to affirmative action in every employment decision, and to explain their reasons for failing to hire women and minorities whenever there was an opportunity to do so.
The petitioner in the present case, Paul E. Johnson, had been an employee of the Agency since 1967, coming there from a private company where he had been a road dispatcher for 17 years. He had first applied for the position of Road Dispatcher at the Agency in 1974, coming in second. Several [p662] years later, after a reorganization resulted in a downgrading of his Road Yard Clerk II position, in which Johnson "could see no future," Tr. 127, he requested and received a voluntary demotion from Road Yard Clerk II to Road Maintenance Worker, to increase his experience and thus improve his chances for future promotion. When the Road Dispatcher job next became vacant, in 1979, he was the leading candidate -- and indeed was assigned to work out of class full-time in the vacancy, from September 1979 until June 1980. There is no question why he did not get the job.
The fact of discrimination against Johnson is much clearer, and its degree more shocking, than the majority and JUSTICE O'CONNOR'S concurrence would suggest -- largely because neither of them recites a single one of the District Court findings that govern this appeal, relying instead upon portions of the transcript which those findings implicitly rejected, and even upon a document (favorably comparing Joyce to Johnson), ante at 625, that was prepared after Joyce was selected. See App. 27-28; Tr. 223-227. Worth mentioning, for example, is the trier of fact's determination that, if the Affirmative Action Coordinator had not intervened, "the decision as to whom to promote . . . would have been made by [the Road Operations Division Director]," App. to Pet. for Cert. 12a, who had recommended that Johnson be appointed to the position. Ibid. [n2] Likewise, the even more extraordinary [p663] findings that James Graebner, the Agency Director who made the appointment, "did not inspect the applications and related examination records of either [Paul Johnson] or Diane Joyce before making his decision," ibid., and indeed
did little or nothing to inquire into the results of the interview process and conclusions which [were] described as of critical importance to the selection process.
Id. at 3a. In light of these determinations, it is impossible to believe (or to think that the District Court believed) Graebner's self-serving statements relied upon by the majority and JUSTICE O'CONNOR's concurrence, such as the assertion that he
tried to look at the whole picture, the combination of [Joyce's] qualifications and Mr. Johnson's qualifications, their test scores, their expertise, their background, affirmative action matters, things like that,
Tr. 68 (quoted ante at 625; ante at 655 (O'CONNOR, J., concurring in judgment)). It was evidently enough for Graebner to know that both candidates (in the words of Johnson's counsel, to which Graebner assented) "met the M.Q.'s, the minimum. Both were minimally qualified." Tr. 25. When asked whether he had "any basis," ibid., for determining whether one of the candidates was more qualified than the other, Graebner candidly answered, "No. . . . As I've said, they both appeared, and my conversations with people tended to corroborate, that they were both capable of performing the work." Ibid.
After a 2-day trial, the District Court concluded that Diane Joyce's gender was "the determining factor," App. to Pet. for Cert. 4a, in her selection for the position. Specifically, it found that,
[b]ased upon the examination results and the departmental interview, [Mr. Johnson] was more qualified for [p664] the position of Road Dispatcher than Diane Joyce,
id. at 12a; that, "[b]ut for [Mr. Johnson's] sex, male, he would have been promoted to the position of Road Dispatcher," id. at 13a; and that, "[b]ut for Diane Joyce's sex, female, she would not have been appointed to the position. . . ." Ibid. The Ninth Circuit did not reject these factual findings as clearly erroneous, nor could it have done so on the record before us. We are bound by those findings under Federal Rule of Civil Procedure 52(a).
The most significant proposition of law established by today's decision is that racial or sexual discrimination is permitted under Title VII when it is intended to overcome the effect, not of the employer's own discrimination, but of societal attitudes that have limited the entry of certain races, or of a particular sex, into certain jobs. Even if the societal attitudes in question consisted exclusively of conscious discrimination by other employers, this holding would contradict a decision of this Court rendered only last Term. Wygant v. Jackson Board of Education, 476 U.S. 267 (1986), held that the objective of remedying societal discrimination cannot prevent remedial affirmative action from violating the Equal Protection Clause. See id. at 276; id. at 288 (O'CONNOR, J., concurring in part and concurring in judgment); id. at 296 (WHITE, J., concurring in judgment). While Mr. Johnson does not advance a constitutional claim here, it is most unlikely that Title VII was intended to place a lesser restraint on discrimination by public actors than is established by the Constitution. The Court has already held that the prohibitions on discrimination in Title VI, 42 U.S.C. § 2000d are at least as stringent as those in the Constitution. See Regents of University of California v. Bakke, 438 U.S. 265, 286-287 (1978) (opinion of POWELL, J.) (Title VI embodies constitutional restraints on discrimination); id. at 329-340 (opinion of BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ.) (same); id. at 416 (opinion of [p665] STEVENS, J., joined by Burger, C.J., and Stewart and REHNQUIST, JJ.) (Title VI "has independent force, with language and emphasis in addition to that found in the Constitution") (emphasis added). There is no good reason to think that Title VII, in this regard, is any different from Title VI. [n3] Because, therefore, those justifications (e.g., the remedying of past societal wrongs) that are inadequate to insulate discriminatory action from the racial discrimination prohibitions of the Constitution are also inadequate to insulate it from the racial discrimination prohibitions of Title VII; and because the portions of Title VII at issue here treat race and sex equivalently; Wygant, which dealt with race discrimination, is fully applicable precedent, and is squarely inconsistent with today's decision. [n4] [p666]
Likewise, on the assumption that the societal attitudes relied upon by the majority consist of conscious discrimination by employers, today's decision also disregards the limitations carefully expressed in last Term's opinions in Sheet Metal Workers v. EEOC, 478 U.S. 421 (1986). While those limitations were dicta, it is remarkable to see them so readily (and so silently) swept away. The question in Sheet Metal Workers was whether the remedial provision of Title VII, 42 U.S.C. § 2000e-5(g), empowers courts to order race-conscious relief for persons who were not identifiable victims of discrimination. Six Members of this Court concluded that it does, under narrowly confined circumstances. The plurality opinion for four Justices found that race-conscious relief could be ordered at least when
an employer or a labor union has engaged in persistent or egregious discrimination, or where necessary to dissipate the lingering effects of pervasive discrimination.
478 U.S. at 445 (opinion of BRENNAN, J., joined by MARSHALL, BLACKMUN, and STEVENS, JJ.). See also id. at 476. JUSTICE POWELL concluded that race-conscious relief can be ordered "in cases involving [p667] particularly egregious conduct," id. at 483 (concurring in part and concurring in judgment), and JUSTICE WHITE similarly limited his approval of race-conscious remedies to "unusual cases." Id. at 499 (dissenting). See also Firefighters v. Cleveland, 478 U.S. 501, 533 (1986) (WHITE, J., dissenting) ("I also agree with JUSTICE BRENNAN's opinion in Sheet Metal Workers . . . that, in Title VII cases, enjoining discriminatory practices and granting relief only to victims of past discrimination is the general rule, with relief for nonvictims being reserved for particularly egregious conduct"). There is no sensible basis for construing Title VII to permit employers to engage in race- or sex-conscious employment practices that courts would be forbidden from ordering them to engage in following a judicial finding of discrimination. As JUSTICE WHITE noted last Term:
There is no statutory authority for concluding that, if an employer desires to discriminate against a white applicant or employee on racial grounds, he may do so without violating Title VII, but may not be ordered to do so if he objects. In either case, the harm to the discriminatee is the same, and there is no justification for such conduct other than as a permissible remedy for prior racial discrimination practiced by the employer involved.
Id. at 533. The Agency here was not seeking to remedy discrimination -- much less "unusual" or "egregious" discrimination. Firefighters, like Wygant, is given only the most cursory consideration by the majority opinion.
In fact, however, today's decision goes well beyond merely allowing racial or sexual discrimination in order to eliminate the effects of prior societal discrimination. The majority opinion often uses the phrase "traditionally segregated job category" to describe the evil against which the plan is legitimately (according to the majority) directed. As originally used in Steelworkers v. Weber, 443 U.S. 193 (1979), that phrase described skilled jobs from which employers and unions [p668] had systematically and intentionally excluded black workers -- traditionally segregated jobs, that is, in the sense of conscious, exclusionary discrimination. See id. at 197-198. But that is assuredly not the sense in which the phrase is used here. It is absurd to think that the nationwide failure of road maintenance crews, for example, to achieve the Agency's ambition of 36.4% female representation is attributable primarily, if even substantially, to systematic exclusion of women eager to shoulder pick and shovel. It is a "traditionally segregated job category" not in the Weber sense, but in the sense that, because of longstanding social attitudes, it has not been regarded by women themselves as desirable work. Or as the majority opinion puts the point, quoting approvingly the Court of Appeals:
"A plethora of proof is hardly necessary to show that women are generally underrepresented in such positions, and that strong social pressures weigh against their participation."
Ante at 634, n. 12 (quoting 748 F.2d 1308, 1313 (CA9 1984)). Given this meaning of the phrase, it is patently false to say that
[t]he requirement that the "manifest imbalance" relate to a "traditionally segregated job category" provides assurance . . . 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.
Ante at 632. 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 (and there is assuredly no consensus on the point equivalent to our national consensus against intentional discrimination), 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, undertaken without the slightest justification or analysis. [p669]
I have omitted from the foregoing discussion the most obvious respect in which today's decision o'erleaps, without analysis, a barrier that was thought still to be overcome. In Weber, this Court held that a private-sector affirmative action training program that overtly discriminated against white applicants did not violate Title VII. However, although the majority does not advert to the fact, until today the applicability of Weber to public employers remained an open question. In Weber itself, see 443 U.S. at 200, 204, and in later decisions, see Firefighters v. Cleveland, supra, at 517; Wygant, 476 U.S. at 282, n. 9 (opinion of POWELL, J.), this Court has repeatedly emphasized that Weber involved only a private employer. See Williams v. New Orleans, 729 F.2d 1554, 1565 (CA5 1984) (en banc) (Gee, J., concurring) ("Writing for the Court in Weber, Justice Brennan went out of his way, on at least eleven different occasions, to point out that what was there before the Court was private affirmative action") (footnote omitted). This distinction between public and private employers has several possible justifications. Weber rested in part on the assertion that the 88th Congress did not wish to intrude too deeply into private employment decisions. See 443 U.S. at 206-207. See also Firefighters v. Cleveland, supra, at 519-521. Whatever validity that assertion may have with respect to private employers (and I think it negligible), it has none with respect to public employers or to the 92d Congress that brought them within Title VII. See Equal Employment Opportunity Act of 1972, Pub. L. 92-261, § 2, 86 Stat. 103, 42 U.S.C. § 2000e(a). Another reason for limiting Weber to private employers is that state agencies, unlike private actors, are subject to the Fourteenth Amendment. As noted earlier, it would be strange to construe Title VII to permit discrimination by public actors that the Constitution forbids.
In truth, however, the language of 42 U.S.C. § 2000e-2 draws no distinction between private and public employers, [p670] and the only good reason for creating such a distinction would be to limit the damage of Weber. It would be better, in my view, to acknowledge that case as fully applicable precedent, and to use the Fourteenth Amendment ramifications -- which Weber did not address and which are implicated for the first time here -- as the occasion for reconsidering and overruling it. It is well to keep in mind just how thoroughly Weber rewrote the statute it purported to construe. The language of that statute, as quoted at the outset of this dissent, is unambiguous: it is an unlawful employment practice
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.
42 U.S.C. § 2000e-2(a). Weber disregarded the text of the statute, invoking instead its "‘spirit,'" 443 U.S. at 201 (quoting Holy Trinity Church v. United States, 143 U.S. 457, 459 (1892)), and "practical and equitable [considerations] only partially perceived, if perceived at all, by the 88th Congress," 443 U.S. at 209 (BLACKMUN, J., concurring). It concluded, on the basis of these intangible guides, that Title VII's prohibition of intentional discrimination on the basis of race and sex does not prohibit intentional discrimination on the basis of race and sex, so long as it is "designed to break down old patterns of racial [or sexual] segregation and hierarchy," "does not unnecessarily trammel the interests of the white [or male] employees," "does not require the discharge of white [or male] workers and their replacement with new black [or female] hirees," "does [not] create an absolute bar to the advancement of white [or male] employees," and "is a temporary measure . . . not intended to maintain racial [or sexual] balance, but simply to eliminate a manifest racial [or sexual] imbalance." Id. at 208. In effect, Weber held that the legality of intentional discrimination by private employers against certain disfavored groups or individuals is to be judged not by Title VII, but by a judicially [p671] crafted code of conduct, the contours of which are determined by no discernible standard, aside from (as the dissent convincingly demonstrated) the divination of congressional "purposes" belied by the face of the statute and by its legislative history. We have been recasting that self-promulgated code of conduct ever since -- and what it has led us to today adds to the reasons for abandoning it.
The majority's response to this criticism of Weber, ante at 629, n. 7, asserts that, since
Congress has not amended the statute to reject our construction, . . . we . . . may assume that our interpretation was correct.
This assumption, which frequently haunts our opinions, should be put to rest. It is based, to begin with, on the patently false premise that the correctness of statutory construction is to be measured by what the current Congress desires, rather than by what the law as enacted meant. To make matters worse, it assays the current Congress' desires with respect to the particular provision in isolation, rather than (the way the provision was originally enacted) as part of a total legislative package containing many quids pro quo. Whereas the statute as originally proposed may have presented to the enacting Congress a question such as "Should hospitals be required to provide medical care for indigent patients, with federal subsidies to offset the cost?," the question theoretically asked of the later Congress, in order to establish the "correctness" of a judicial interpretation that the statute provides no subsidies, is simply "Should the medical care that hospitals are required to provide for indigent patients be federally subsidized?" Hardly the same question -- and many of those legislators who accepted the subsidy provisions in order to gain the votes necessary for enactment of the care requirement would not vote for the subsidy in isolation, now that an unsubsidized care requirement is, thanks to the judicial opinion, safely on the books. But even accepting the flawed premise that the intent of the current Congress, with respect to the provision in isolation, is determinative, one must ignore rudimentary [p672] principles of political science to draw any conclusions regarding that intent from the failure to enact legislation. The "complicated check on legislation," The Federalist No. 62, p. 378 (C. Rossiter ed. 1961), erected by our Constitution creates an inertia that makes it impossible to assert with any degree of assurance that congressional failure to act represents (1) approval of the status quo, as opposed to (2) inability to agree upon how to alter the status quo, (3) unawareness of the status quo, (4) indifference to the status quo, or even (5) political cowardice. It is interesting to speculate on how the principle that congressional inaction proves judicial correctness would apply to another issue in the civil rights field, the liability of municipal corporations under § 1983. In 1961, we held that that statute did not reach municipalities. See Monroe v. Pape, 365 U.S. 167, 187 (1961). Congress took no action to overturn our decision, but we ourselves did, in Monell v. New York City Dept. of Social Services, 436 U.S. 658, 663 (1978). On the majority's logic, Monell was wrongly decided, since Congress' 17 years of silence established that Monroe had not "misperceived the political will," and one could therefore "assume that [Monroe's] interpretation was correct." On the other hand, nine years have now gone by since Monell, and Congress again has not amended § 1983. Should we now "assume that [Monell's] interpretation was correct"? Rather, I think we should admit that vindication by congressional inaction is a canard.
JUSTICE STEVENS' concurring opinion emphasizes the "undoubted public interest in ‘stability and orderly development of the law,'" ante at 644 (citation omitted), that often requires adherence to an erroneous decision. As I have described above, however, today's decision is a demonstration not of stability and order, but of the instability and unpredictable expansion which the substitution of judicial improvisation for statutory text has produced. For a number of reasons, stare decisis ought not to save Weber. First, this Court has applied the doctrine of stare decisis to civil rights [p673] statutes less rigorously than to other laws. See Maine v. Thiboutot, 448 U.S. 1, 33 (1980) (POWELL, J., dissenting); Monroe v. Pape, supra, at 221-222 (Frankfurter, J., dissenting in part). Second, as JUSTICE STEVENS acknowledges in his concurrence, ante at 644, Weber was itself a dramatic departure from the Court's prior Title VII precedents, and can scarcely be said to be "so consistent with the warp and woof of civil rights law as to be beyond question." Monell v. New York City Dept. of Social Services, supra, at 696. Third, Weber was decided a mere seven years ago, and has provided little guidance to persons seeking to conform their conduct to the law, beyond the proposition that Title VII does not mean what it says. Finally,
even under the most stringent test for the propriety of overruling a statutory decision . . . -- "that it appear beyond doubt . . . that [the decision] misapprehended the meaning of the controlling provision,"
436 U.S. at 700 (quoting Monroe v. Pape, supra, at 192 (Harlan, J., concurring)), Weber should be overruled.
In addition to complying with the commands of the statute, abandoning Weber would have the desirable side effect of eliminating the requirement of willing suspension of disbelief that is currently a credential for reading our opinions in the affirmative action field -- from Weber itself, which demanded belief that the corporate employer adopted the affirmative action program "voluntarily," rather than under practical compulsion from government contracting agencies, see 443 U.S. at 204; to Bakke, a Title VI case cited as authority by the majority here, ante at 638, which demanded belief that the University of California took race into account as merely one of the many diversities to which it felt it was educationally important to expose its medical students, see 438 U.S. at 311-315; to today's opinion, which -- in the face of a plan obviously designed to force promoting officials to prefer candidates from the favored racial and sexual classes, warning them that their "personal commitment" will be determined by how successfully they "attain" certain numerical goals, [p674] and in the face of a particular promotion awarded to the less qualified applicant by an official who "did little or nothing" to inquire into sources "critical" to determining the final candidates' relative qualifications other than their sex -- in the face of all this, demands belief that we are dealing here with no more than a program that "merely authorizes that consideration be given to affirmative action concerns when evaluating qualified applicants." Ante at 638. Any line of decisions rooted so firmly in naivete must be wrong.
The majority emphasizes, as though it is meaningful, that "No persons are automatically excluded from consideration; all are able to have their qualifications weighed against those of other applicants." Ibid. One is reminded of the exchange from Shakespeare's King Henry the Fourth, Part I:
GLENDOWER: I can call Spirits from the vasty Deep.
HOTSPUR: Why, so can I, or so can any man. But will they come when you do call for them?
Act III, Scene I, lines 53-55. Johnson was indeed entitled to have his qualifications weighed against those of other applicants -- but more to the point, he was virtually assured that, after the weighing, if there was any minimally qualified applicant from one of the favored groups, he would be rejected.
Similarly hollow is the Court's assurance that we would strike this plan down if it "failed to take distinctions in qualifications into account," because that "would dictate mere blind hiring by the numbers." Ante at 636. For what the Court means by "taking distinctions in qualifications into account" consists of no more than eliminating from the applicant pool those who are not even minimally qualified for the job. Once that has been done, once the promoting officer assures himself that all the candidates before him are "M.Q.'s" (minimally qualifieds), he can then ignore, as the Agency Director did here, how much better than minimally qualified some of the candidates may be, and can proceed to appoint [p675] from the pool solely on the basis of race or sex, until the affirmative action "goals" have been reached. The requirement that the employer "take distinctions in qualifications into account" thus turns out to be an assurance, not that candidates' comparative merits will always be considered, but only that none of the successful candidates selected over the others solely on the basis of their race or sex will be utterly unqualified. That may be of great comfort to those concerned with American productivity; and it is undoubtedly effective in reducing the effect of affirmative action discrimination upon those in the upper strata of society, who (unlike road maintenance workers, for example) compete for employment in professional and semiprofessional fields where, for many reasons, including most notably the effects of past discrimination, the numbers of "M.Q." applicants from the favored groups are substantially less. But I fail to see how it has any relevance to whether selecting among final candidates solely on the basis of race or sex is permissible under Title VII, which prohibits discrimination on the basis of race or sex. [n5]
Today's decision does more, however, than merely reaffirm Weber, and more than merely extend it to public actors. It is impossible not to be aware that the practical effect of our holding is to accomplish de facto what the law -- in language [p676] even plainer than that ignored in Weber, see 42 U.S.C. § 2000e-2(j) -- forbids anyone from accomplishing de jure: in many contexts, it effectively requires employers, public as well as private, to engage in intentional discrimination on the basis of race or sex. This Court's prior interpretations of Title VII, especially the decision in Griggs v. Duke Power Co., 401 U.S. 424 (1971), subject employers to a potential Title VII suit whenever there is a noticeable imbalance in the representation of minorities or women in the employer's workforce. Even the employer who is confident of ultimately prevailing in such a suit must contemplate the expense and adverse publicity of a trial, because the extent of the imbalance, and the "job relatedness" of his selection criteria, are questions of fact to be explored through rebuttal and counterrebuttal of a "prima facie case" consisting of no more than the showing that the employer's selection process "selects those from the protected class at a ‘significantly' lesser rate than their counterparts." B. Schlei & P. Grossman, Employment Discrimination Law 91 (2d ed. 1983). If, however, employers are free to discriminate through affirmative action, without fear of "reverse discrimination" suits by their nonminority or male victims, they are offered a threshold defense against Title VII liability premised on numerical disparities. Thus, after today's decision, the failure to engage in reverse discrimination is economic folly, and arguably a breach of duty to shareholders or taxpayers, wherever the cost of anticipated Title VII litigation exceeds the cost of hiring less capable (though still minimally capable) workers. (This situation is more likely to obtain, of course, with respect to the least skilled jobs -- perversely creating an incentive to discriminate against precisely those members of the nonfavored groups least likely to have profited from societal discrimination in the past.) It is predictable, moreover, that this incentive will be greatly magnified by economic pressures brought to bear by government contracting agencies upon employers who refuse to discriminate in the fashion [p677] we have now approved. A statute designed to establish a color-blind and gender-blind workplace has thus been converted into a powerful engine of racism and sexism, not merely permitting intentional race- and sex-based discrimination, but often making it, through operation of the legal system, practically compelled.
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.
1. This renders utterly incomprehensible the majority's assertion that
the Agency acknowledged that [its long-term goal] could not by itself necessarily justify taking into account the sex of applicants for positions in all job categories.
Ante at 635.
2. The character of this intervention, and the reasoning behind it, was described by the Agency Director in his testimony at trial:
Q. How did you happen to become involved in this particular promotional opportunity?
A. I . . . became aware that there was a difference of opinion between specifically the Road Operations people [Mr. Shields] and the Affirmative Action Director [Mr. Morton] as to the desirability of certain of the individuals to be promoted.
* * * *
. . . Mr. Shields felt that Mr. Johnson should be appointed to that position.
Q. Mr. Morton felt that Diane Joyce should be appointed?
A. Mr. Morton was less interested in the particular individual; he felt that this was an opportunity for us to take a step toward meeting our affirmative action goals, and because there was only one person on the [eligibility] list who was one of the protected groups, he felt that this afforded us an opportunity to meet those goals through the appointment of that member of a protected group.
3. To support the proposition that Title VII is more narrow than Title VI, the majority repeats the reasons for the dictum to that effect set forth in Steelworkers v. Weber, 443 U.S. 193, 206, n. 6 (1979) -- a case which, as JUSTICE O'CONNOR points out, ante at 651-652, could reasonably be read as consistent with the constitutional standards of Wygant. Those reasons are unpersuasive, consisting only of the existence in Title VII of 42 U.S.C. § 2000e-2(j) (the implausibility of which, as a restriction upon the scope of Title VII, was demonstrated by CHIEF JUSTICE REHNQUIST's literally unanswered Weber dissent) and the fact that Title VI pertains to recipients of federal funds, while Title VII pertains to employers generally. The latter fact, while true and perhaps interesting, is not conceivably a reason for giving to virtually identical categorical language the interpretation, in one case, that intentional discrimination is forbidden, and, in the other case, that it is not. Compare 42 U.S.C. § 2000d ("No person . . . shall, on the ground of race, color, or national origin, be . . . subjected to discrimination"), with § 2000e-2(a)(1) (no employer shall "discriminate against any individual . . . because of such individual's race, color, religion, sex, or national origin").
4. JUSTICE O'CONNOR's concurrence at least makes an attempt to bring this Term into accord with last. Under her reading of Title VII, an employer may discriminate affirmatively, so to speak, if he has a "firm basis" for believing that he might be guilty of (nonaffirmative) discrimination under the Act, and if his action is designed to remedy that suspected prior discrimination. Ante at 649. This is something of a halfway house between leaving employers scot-free to discriminate against disfavored groups, as the majority opinion does, and prohibiting discrimination, as do the words of Title VII. In the present case, although the District Court found that in fact no sex discrimination existed, JUSTICE O'CONNOR would find a "firm basis" for the agency's belief that sex discrimination existed in the "inexorable zero": the complete absence, prior to Diane Joyce, of any women in the Agency's skilled positions. There are two problems with this: First, even positing a "firm basis" for the Agency's belief in prior discrimination, as I have discussed above, the plan was patently not designed to remedy that prior discrimination, but rather to establish a sexually representative workforce. Second, even an absolute zero is not "inexorable." While it may inexorably provide "firm basis" for belief in the mind of an outside observer, it cannot conclusively establish such a belief on the employer's part, since he may be aware of the particular reasons that account for the zero. That is quite likely to be the case here, given the nature of the jobs we are talking about and the list of "Factors Hindering Goal Attainment" recited by the Agency plan. See supra at 622. The question is in any event one of fact, which, if it were indeed relevant to the outcome, would require a remand to the District Court, rather than an affirmance.
5. In a footnote purporting to respond to this dissent's (nonexistent) "predict[ion] that today's decision will loose a flood of ‘less qualified' minorities and women upon the workforce," ante at 641, n. 17, the majority accepts the contention of the American Society for Personnel Administration that there is no way to determine who is the best qualified candidate for a job such as Road Dispatcher. This effectively constitutes appellate reversal of a finding of fact by the District Court in the present case ("[P]laintiff was more qualified for the position of Road Dispatcher than Diane Joyce," App. to Pet. for Cert. 12a). More importantly, it has staggering implications for future Title VII litigation, since the most common reason advanced for failing to hire a member of a protected group is the superior qualification of the hired individual. I am confident, however, that the Court considers this argument no more enduring than I do.