Court to Rule in Sex Bias Case : Affirmative Action Faces Test on Women’s Status

Paul Johnson, a 57-year-old highway worker, was ready for an indoor job after more than 30 years on the roads, and he figured he was a good bet to get promoted to dispatcher.

Diane Joyce, a 42-year-old widow with four children, wanted the job too, and she had worked on the roads for four years to qualify for it.

After a round of interviews and tests, Johnson was judged the best applicant and won the promotion in 1980. But Joyce suspected that she had lost out to the “old boys’ network.” She appealed to the county affirmative action office, which noted that not one of the transportation agency’s 238 skilled positions was held by a woman.

Diane Joyce got the job. The county got itself a lawsuit.

This week, the U.S. Supreme Court will hear Johnson’s appeal, and its decision could clarify federal law on affirmative action. The most closely watched affirmative action case of this term, Johnson vs. Transportation Agency of Santa Clara County (85-1129), turns on a significant issue that the court has sidestepped recently:

May a public employer give preference to women or minorities without clear evidence that it discriminated against women or minorities in the past?

The lower courts are divided on the question. A federal judge concluded in 1982 that the absence of women in the agency’s skilled jobs was not the result of discrimination, and therefore, the county could not discriminate in favor of women. An appeals court said last year, however, that the “conspicuous imbalance” in favor of men in the work force justified preferential treatment of women.

The Santa Clara case--the first appeal of affirmative action for women to go before the high court--will test whether the justices will apply the same standards to questions of sex discrimination as to racial bias.

“This case has enormous symbolic importance for women if we’re going to continue to open the doors to non-traditional jobs,” said Marsha Levick, counsel to the National Organization for Women Legal Defense and Education Fund. “Hopefully, the court will not require an employer to write a mea culpa before engaging in affirmative action, but we don’t know where they will draw the line. That’s the very critical question the court will have to answer here.”

Promotion Not Addressed

The high court will also get a chance to make the law clear on promotions. In the term ending in June, the justices ruled that employers may give preference to minorities in hiring, but balked at the idea of giving the same preference in layoffs. They reasoned that this would pose too harsh a penalty on “innocent parties,” such as whites who had more seniority than the blacks whose jobs would be saved.

In recent rulings on affirmative action, the Supreme Court has focused on the remedying past discrimination. It has rejected some solutions as “rigid quotas” for hiring minorities but accepted others as setting “reasonable goals.”

In the Santa Clara case, a federal judge has ruled that the county “has not discriminated in the past and does not discriminate in the present against women in regard to employment opportunities.”

The Justice Department cited this finding in arguing that no corrective action was justified for Santa Clara. Its brief to the court calls the promotion of Diane Joyce “a rather extreme example of casual social engineering heedless of individual rights.”

Federal law says an employer may not “discriminate against any individual . . . because of such individual’s race, color, religion, sex or national origin,” and the judge found that “the determining factor” in Johnson’s losing the promotion was his gender.

Past Pattern Cited

But attorneys for California and 10 other states, along with the NOW Legal Defense and Education Fund, argue that a “substantial under-representation” of women in key jobs justified the action in Joyce’s favor. They say the trial judge did not look into the transportation agency’s past for an explanation of why there were no women in its skilled jobs.

“Public employers may engage in voluntary affirmative action . . . to break down entrenched patterns” in employment conventionally held by men, the state says in its brief to the Supreme Court.

Attorneys for Santa Clara County say that the county’s affirmative action officials had reason to believe that women and minorities were not getting equal treatment at the transportation agency, but they have stopped short of furnishing evidence that other members of those groups could use in discrimination lawsuits.

“We think we handled this properly. We thought there was a problem--a significant under-representation of women in these jobs--and we did something about it,” said Steven Woodside, lawyer for Santa Clara County. The affirmative action agency sought a “work force whose composition reflects the ethnic and sexual makeup of the area work force,” but Woodside said this did not mean that a qualified woman would always be chosen for the next available promotion.

Plan Was ‘a Factor’

“The agency director said the affirmative action plan was a factor (in selecting Joyce over Johnson), but that the two were essentially equal in their qualifications,” he said.

Woodside noted that under the procedures, the agency director had the authority to choose any of the seven candidates for the job who was deemed qualified.

An attorney for Johnson called this approach “dangerous” and “just not right.”

“What if the agency director decided he didn’t want to promote Mexicans or blacks? So even if the most qualified people were Mexican or black, the director would pass them over for a white. Wouldn’t that be discrimination?” asked James Dawson, an attorney in San Jose. “There was no question Johnson was more qualified, but he didn’t get the job.”

Whenever the high court has considered the question of when affirmative action is permitted, it has given mixed signals. The liberal bloc--Justices William J. Brennan Jr., Thurgood Marshall, Harry A. Blackmun and John Paul Stevens--has favored affirmative action in all the recent cases argued before the court.

The conservative wing--former Chief Justice Warren E. Burger, William H. Rehnquist and Byron R. White--has opposed affirmative action just as regularly. The substitution of Associate Justice Antonin Scalia for Burger is not expected to change that pattern.

Key to Past Rulings

The two swing votes on the court have been those of Lewis F. Powell Jr. and Sandra Day O’Connor. In an opinion in May, Powell said the court “never has held that societal discrimination alone is sufficient to justify a racial classification. Rather, the court has insisted upon some showing of prior discrimination.” O’Connor, in a concurring opinion, cited a less precise standard. She wrote that affirmative action must “further a legitimate remedial purpose.”

The Santa Clara County case could resolve this issue.

Diane Joyce said in an interview that she is worried because the court record does not reflect the discrimination that she says she has encountered on the job.

“That wasn’t part of the county’s case, so I didn’t get to tell about a lot of the stuff that’s happened. The embarrassing comments, what supervisors have said to me. When I first applied for the road yard clerk job, they told me, ‘We’re looking for a man for that job.’ No matter how good you are, you can’t live up to what they want,” Joyce said. “If we lose this case, it will be devastating for women. We won’t have a chance.”

Johnson’s attorney says it is his client, not Joyce, who is the underdog in this case.

“She knew how to play the system,” Dawson said. “She filed all sorts of grievances. She was active in the union, testified before the county Board of Supervisors. And she was always charging sex discrimination. Johnson was low-key, soft-spoken, not a political type of guy. He just did his job.”

Plaintiff Has Retired

After the appeals court reversed the judgment in favor of him, Johnson took an early retirement and moved to a small town outside of Seattle. He is bitter about what happened in San Jose.

“I don’t have anything against affirmative action. I think it’s done some good,” he said in a telephone interview. “But they ought to take the merit system into account too. If you do a good job and you’re more qualified, you should get recognized for it. The county shouldn’t be able to play these games,” Johnson said.

“Regardless of what happens in the case, I know I was more qualified, and they know it, so I’ll always think it was unfair.”