480 U. S. 616
March 25, 1987
The Santa Clara Transportation Agency decided that it needed an affirmative action program. There was no evidence that the agency had actually discriminated in the past, but the agency felt that the number of women in upper level transportation jobs should more closely mirror the number of women in the workforce. In 1980, Paul Johnson was passed over for a promotion in favor of the less qualified Diane Joyce, who had been chosen because of her sex. Johnson sued, arguing that the Civil Rights Act (CRA) prohibited employers from making such hiring decisions on the basis of sex.
The Court ruled 6-3 that the CRA did not prohibit hiring Joyce based on her sex. Writing for the majority, Brennan said that this result naturally followed from the 1979 Weber decision, which allowed private companies to give preferential treatment to blacks in order to remedy past discrimination. In doing so, employers need not actually prove past discrimination, since that might invite lawsuits – instead, showing a manifest imbalance in hiring statistics is enough to justify an affirmative action plan. The Agency’s plan was flexible, not quota-based, and geared only at attaining rather than maintaining greater gender balance. Furthermore, Joyce was still well qualified for the position she was given. For all those reasons, Brennan found that the Agency’s preferential treatment of Joyce was allowable.
Stevens joined the majority opinion, and wrote a concurring one of his own. He suggested that Weber was probably wrongly decided, but followed it anyway in the interest of stare decisis. He also suggested that, given the precedents now on the books, an employer might be allowed to favor minorities even without an imbalance in the agency’s workforce. O’Connor concurred in judgment. Like Stevens, she delicately hinted that Weber was perhaps incorrect, but decided to follow it anyway. Unlike the majority, O’Connor thought an employer would have to show a reasonably firm basis for believing prior discrimination occurred before instituting an affirmative action program. The total lack of women in upper level positions was enough for her to conclude that such a basis existed in this case.
Scalia dissented, and was joined by Rehnquist and White. This dissent may properly be called his first true masterpiece. Scalia showed that the agency was not trying to remedy past discrimination, but rather to make the transportation agency more representative of the general labor force. Such a goal, he argued, was flatly prohibited by the CRA as interpreted in prior precedent. He also faulted the majority for failing to distinguish between the private employer in Weber and the public employer in Johnson. Finally, Scalia said that Weber should be overruled, and eviscerated the majority’s argument that Congressional inaction in response to Weber was a reason for keeping it (White did not join this discussion of Weber, but published a one paragraph dissent agreeing that the case should be overruled). Scalia concluded by showing how the Court’s decisions in the realm of affirmative action practically made it certain that companies would adopt such policies out of self-interest. Parenthetically, I can’t help but wonder after reading this dissent why the heck Scalia joined the majority in Guerra.
This decision was terrible, and I concur with Scalia that it contradicts the plain text of the Civil Rights Act. I also detest it when Justices hide behind stare decisis rather than overturn a flawed ruling, as Stevens and O’Connor did. But my disagreement with Johnson goes far deeper than that. I despise racial discrimination in all its forms, but I feel differently about sex discrimination. Race did not exist before the fall, but gender certainly did – “male and female He created them.” And from the beginning, God gave each gender different strengths, roles, and attributes. It’s a rebellion against God to deny these differences, and to claim that both genders ought be represented equally in certain fields of employment, like road work here.
Scalia’s closing: “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.”