'Giant Victory,' Winner Says : Case Seen as Speeding Fight for Female Gains

Times Staff Writer

Both sides Wednesday called the Supreme Court's latest ruling on affirmative action its most important on the issue and predicted that the decision will accelerate efforts by women and minorities to make further gains in hiring and promotion.

Proponents of using preferential treatment to rectify discrimination in employment said they were pleasantly surprised by the court's clear-cut decision, but opponents said they were shocked.

'Significant' Case

"This is the most significant affirmative action case the court has ever decided in terms of clarity and benefiting proponents of affirmative action," conceded Bruce E. Fein, an attorney with the Heritage Foundation, a conservative think tank that strongly opposes such employment programs as discriminatory themselves.

Diane Joyce, now 49, the Santa Clara County, Calif., road dispatcher whose promotion seven years ago was upheld by the high court Wednesday, declared the case "a giant victory for womanhood."

"I hope it will encourage employers to promote more women and not be afraid of discrimination suits" from men, the newly divorced Joyce said in a telephone interview.

She said that male co-workers had greeted the decision "coldly" because they "feel threatened." Although she can sympathize with them, she added, "maybe men now will start to understand what has been happening to women and minorities for the last few decades."

Paul E. Johnson, 61, who was passed over for the job despite his contention that he was better qualified than Joyce, reacted bitterly to the court's ruling.

"Putting it mildly, I think it stinks," he said from Sequim, Wash., where he lives in retirement. "I've talked to people who were never prejudiced before but are getting that way from this decision."

Feminist groups were jubilant.

"This case will have a big impact not only on Diane Joyce but on all women overdue for a promotion or who think they ought to be asking for a better job," said Kathy Bonk of the NOW Legal Defense and Education Fund. "It sends a signal to women: 'Go ahead, we're behind you all the way.' It also sends a signal to employers: 'You have an obligation to think more seriously about how to integrate women into well-paying jobs.' "

In Orange County, women's rights leaders lauded the decision.

"If I understand it rightly, I'm delighted with it," said Wendy Lozano, who heads the Orange County political action committee for the National Organization for Women.

Audrey Yamagata-Noji, a member of the Orange County Human Relations Commission, called the decision "appropriate" and added: "It's about time . . . but there's a lot more work that needs to be done."

The decision "could do a lot of good for women in Orange County who are upwardly mobile," Yamagata-Noji said. "This does a lot of good towards increasing human rights for gender discrimination, and I hope that this will have a positive impact on the county, both in the private and public workplaces."

Peter Robertson, who advises 200 large corporations on affirmative action matters, said that the court's ruling "unambiguously reiterates a whole line of opinions that . . . you can take race or sex into consideration in adopting affirmative action plans as long as you do so in a responsible fashion."

"In all previous cases, you had four judges and a web of concurring and overlapping opinions, so you had to (use) scissors and paste to construct what was really the majority view," said Robertson, a consultant with Organization Resources Counselors. "Today, you had five judges concurring unambiguously in a single opinion." (A sixth justice, Sandra Day O'Connor, voted with the majority but did not subscribe to its reasoning.)

Burden of Proof

Robertson said that "the most exciting part" of the decision places the burden of proof on a person challenging an affirmative action plan rather than on an employer defending it.

From now on, he added, cases will turn on whether "whites are doing too much for blacks or men too much for women--not on whether they are doing enough. If somebody had said 15 years ago that that would be the issue today, he would have been laughed at."

Fein of the Heritage Foundation predicted that the ruling "will really accelerate affirmative action" because equal employment opportunity officers will fear being criticized if they fail to act.

Lozano, who also is legislative chair of the South Orange County chapter of NOW, called for increased efforts at affirmative action. "In areas where women have been consistently absent, we simply have to take very strong steps to ensure they won't be absent in the future," she said.

While the number of women in middle management positions has improved, she said, there still is a dearth of women in upper management. "(In) positions where they do the hiring and firing . . . you tend to see women excluded," Lozano said.

Yamagata-Noji agreed. "In middle management, everyone thinks everything is fair and nice," but there are few corporate presidents, vice presidents or chairmen of the board, she said.

Evaluating whether a woman or man is better qualified is subjective, Yamagata-Noji said. But as with minorities, it can sometimes be argued that a woman is less qualified because the system has denied her gender the necessary experience in that line of work, she said.

"You can always argue who is more qualified. But you need to look at what a person can bring to that position," Yamagata-Noji said. "If you've had an imbalance of only men, a woman can bring new talents and perspectives that are helpful."

Matt Biscan of the Denver-based Mountain States Legal Foundation, which represented Johnson, bemoaned the "really quite overwhelming" legal impact of the decision.

"In the past, affirmative action was imposed only in light of past or present invidious acts of discrimination," he said. "In this case, there was no evidence of discrimination on the part of the agency," noting that the court had relied on statistics comparing numbers of women in the general work force with the numbers in Joyce's agency.

"I really expected to win the case," Biscan said. "I'm shocked I didn't."

Related story in View.

Times staff writer Marcida Dodson contributed to this story from Orange County.

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