The Supreme Court, in a historic decision broadening voluntary affirmative action, ruled today that an employer may promote a woman over a more qualified man as part of an effort to get more women into better paying jobs.
On a 6-3 vote, the justices approved an affirmative action plan in Santa Clara County that was instituted to correct a "manifest imbalance" in skilled jobs held by men over women.
To remedy this clear disparity, the California county could take sex into account as "one factor" in deciding on promotions, the court said.
The county's plan "represents a moderate, flexible, case-by-case approach to effecting a gradual improvement in the representation of minorities and women in the agency's work force," wrote Justice William J. Brennan Jr.
A 'Voluntary' Effort
He added that the plan was "fully consistent" with federal civil rights law in that it is a "voluntary" effort at "eliminating the vestiges of discrimination in the work place."
The ruling was quickly hailed by civil rights attorneys for expanding the grounds for affirmative action. In earlier rulings, the high court had declared that affirmative action was justified as a remedy only where there had been "past discrimination." But in this case, a federal judge in San Francisco found that the county had not discriminated against women or minorities. Nevertheless, no women had held skilled jobs in the county's Transportation Department.
Rebuff to White House
Once again, the justices also firmly rebuffed the Reagan Administration's attempts to limit affirmative action. Dissenting from today's ruling were Chief Justice William H. Rehnquist and Justices Byron R. White and Antonin Scalia.
In his dissent, Scalia complained that the court was "converting this (federal civil rights law) from a guarantee that race or sex will not be the basis for employment determinations to a guarantee that it often will."
This case arose when Paul Johnson and Diane Joyce, two road workers in San Jose, sought promotion to the post of road dispatcher. Both met the minimal qualifications, but based on their work experience and interviews, Johnson was picked for the post.
No Women in 238 Jobs
Joyce appealed to the county's affirmative action coordinator, who noted that women held none of the 238 skilled jobs in the department. As a result, the department head reversed the initial recommendation and chose Joyce.
Johnson sued, and after a trial, the judge concluded that Joyce's sex was the "determining factor" in her getting the promotion. This was illegal, he concluded, because the affirmative action plan was not intended to remedy "past discrimination." In 1985, an appeals court reversed that ruling, and Johnson appealed to the Supreme Court (Johnson vs. Transportation Agency of Santa Clara County, 85-1129.)