‘Giant Victory,’ Winner Says : Case Seen as Speeding Bid for Minority Gains

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.

“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.

Road Dispatcher

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.’ ”

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.

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,” he said, noting that the court 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.”

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