A Wonderful Opportunity for the Law to Serve Justice

On the morning the U.S. Supreme Court’s decision in Johnson vs. Transportation Agency of Santa Clara was front-page news, I was giving a lecture to the alumni association of a prestigious women’s college in the East about my decade-long research and writing on women in the blue-collar labor force.

I was deluged with questions and contradictory impressions about the decision and its implications.

Some of the women expressed outrage at what many reports described as the promotion of a “less qualified” woman over a “more qualified” man. Others expressed concern that after years of activism to fight subjective judgments against women, the Supreme Court was now saying that subjective judgments could be used on behalf of women, resulting in a form of “reverse discrimination.” Still others expressed misgivings about our ability to “legislate equality,” questioning not only the appropriateness but also the record of effectiveness of the court’s “intrusion” in employment and promotion decisions.

I was surprised by so much negativity among a group of well-educated women traditionally supportive of women’s rights--a negativity that I determined was based on a limited understanding of the case and the issues. The true character of the court’s decision is in fact more complex than a casual reading of news reports can elucidate, particularly with regard to the questions of qualifications and the role of subjectivity in promotion decisions. In addition, the realities of the skilled blue-collar work environment--how people are hired, trained, promoted and even excluded--are little understood by the white-collar world.

To begin with, the assertion that Diane Joyce, the woman who was promoted, was less qualified than Paul Johnson, the plaintiff, is greatly overstated. According to established procedures, Joyce and Johnson, along with five other workers out of the original 12 who applied, were certified as eligible for the job, based on experience and preliminary oral-interview scores of 70 points or better.

In this pool of seven qualified persons, any of whom could have been selected legally for the promotion to road dispatcher, Johnson ranked second with another man who had an interview score of 75. Joyce ranked third with a score of 73. After a second round of more subjective interviews by a panel of three supervisors, Johnson was recommended for the position.

Joyce had expressed concern that the evaluators would not be unbiased in the final interview because there were still no women among the agency’s 238 skilled-craft positions. Those positions had been filled primarily on the basis of the recommendations of just such review panels. (In fact, one panelist is said to have described Joyce as a “rabble-rousing, skirt-wearing person.”)

Ultimately the director of the agency chose Joyce, based on a voluntary commitment to increase the representation of women in skilled-craft jobs.

As the opinion of Justice William J. Brennan Jr. points out, Joyce’s sex was considered as one factor, given the obvious “imbalance in the skilled-craft category and the agency’s commitment to eliminating such imbalances.” The critical issue in the opinion of Brennan regarding the agency’s voluntary affirmative-action plan is that it “sets aside no positions for women . . . . Rather the plan merely authorizes that consideration be given to affirmative-action concerns when evaluating qualified applicants.”

Oral subjective evaluations by review panels and potential employers of qualified applicants is an established part of employment and promotion practices. And it is in this more subjective stage of the evaluation process that women reviewed by an all-male panel of evaluators are perceived as lacking the personal qualities--stamina, commitment, toughness, camaraderie, whatever--to do the job effectively. Such evaluation panels for decades have rejected women for blue-collar apprenticeships, police and fire work and, in this case, skilled jobs in the Santa Clara County Transportation Agency.

The court’s decision allows management that is committed to achieving a more balanced labor force the right to prudently select and promote qualified women in order to counter and ultimately break down the stereotypes and discriminatory practices that are perpetuated by reliance on highly subjective review panels.

The court’s decision, as one newspaper’s editorial put it, rather than violating the rights of men or giving preference to unqualified women, has created a wonderful opportunity for the “law to serve justice”--something that we sorely need in this country now.