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State Management Personnel Manual

The Legal Environment of Affirmative Action
(continued ; Section 4)

Back to Section Three Turn to Section Five

Major Federal Court Cases (continued)

Wendy Wygant v Jackson Board of Education, 476 U.S. 267 (1986)


A provision in the collective bargaining agreement between the Jackson Board of Education and a teachers union provided that in the event of layoffs, teachers with the most seniority would be retained, except that at no time would there be a greater percentage of minority personnel laid off than the current percentage of minority personnel employed at the time of the layoff. As a result of this provision, non-minority teachers were laid off, while minority teachers with less seniority were retained.

The displaced nonminority teachers brought suit alleging violations of the Equal Protection Clause of the Fourteenth Amendment to the US Constitution, Title VB of the Civil Rights Act of 1964, as amended, 42 USC 1983 and other Federal and State statutes.


Eight of the nine Justices rejected the U. S. Justice Department's theory that affirmative action is permitted only as recompense for identified individual victims of specific acts of discrimination. The majority struck down the collectively negotiated agreement at issue, under which newly hired minority teachers were given preferential protection in layoffs. The Opinion of the Court (representing the views of three Justices) indicated that the articulated basis for affirmative action in this case--the need for role models--was insufficiently compelling, and, as well that: "Societal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy." These Justices held that the school district's layoff plan was an unconstitutional means to accomplish even a compelling purpose, as there were less intrusive alternatives available. A fourth Justice filed a cryptic opinion concurring in the result A fifth Justice concurred in the result but left open the question of whether such layoff plans could be a permissible means of effecting affirmative action. Her view was that this particular layoff plan was impermissible, agreeing with the Opinion of the Court that the hiring plan it complemented was based on improper considerations.

However, while the result was negative, there was nearly unanimous agreement (eight out of nine Justices) over the legitimacy of race-conscious affirmative action, if narrowly tailored There was recognition that innocent parties may be required to share the burden of overcoming the effects of past discrimination. Hiring goals were mentioned favorably as a less intrusive means of remedying discrimination. They would be appropriate, the Court noted, where actual discrimination could be demonstrated by a comparison of the racial composition of the governmental work force to the availability of qualified persons in the appropriate labor market.

Finally, the propriety of government's curing discrimination through voluntary action was rearmed.

Local Number 93, International Association of Firefighters, AFL-CIO v City of Cleveland, 478 US 501 (1986)


Local 93, a union representing a majority of Cleveland's firefighters, challenged a Consent Decree entered into by the City of Cleveland and the Vanguards, an organization of black and Hispanic firefighters employed by the city, to resolve an action brought by the Vanguards pursuant to Title VII of the Civil Rights Act of 1964. The Consent Decree provided for the use of race-conscious relief and other affirmative action in the promotion of firefighters. The Union contended that the Consent Decree violated Section 706(g) of Title VII which provides that "no order of the court shall require the admission or reinstatement of an individual as a member of a union, or the hiring, reinstatement, or promotion of an individual as an employee ...if such individual was refused admission, suspended or expelled, or was refused employment or advancement-for any reason other than discrimination on account of race, religion, sex or national origin in violation of"
42 USC 2000e-3(a). The union argued that Section 706(g) precludes a court from awarding relief under Title VII that may benefit individuals who were not actual victims of the employer's discrimination.


The Court held that Section 706(g) does not apply to relief awarded in a consent decree. The Court recognized the voluntary nature of a consent decree as its most fundamental characteristic and concluded that voluntary adoption in a consent decree of race-conscious objectives that may benefit non-victims does not violate the congressional objectives of Section 706(g).

Local 23 of the Sheet Metal Workers' International Association, et al. v. EEOC, 478 US 421 (1986)


Following a trial in US District Court, the union was found to have violated Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law by discriminating against non-white workers in recruitment, training and selection to the union. The District Court entered an order and judgment enjoining petitioners from discriminating against non-whites and enjoining the specific discriminatory practices engaged in by the union and imposed a remedial racial goal in conjunction with an admission preference for non-whites.

The union challenged the order of the court arguing that it could not impose race- conscious relief that may benefit individuals who are not identified victims of unlawful discrimination.


The Court held that under Title VII, courts could order affirmative race-conscious relief "where an employer or labor union has engaged in persistent or egregious discrimination, or where necessary to dissipate the lingering effects of pervasive discrimination."
The U. S. Solicitor General's and the union's position that court ordered relief under Title VII must be limited to actual identified victims of discrimination was rejected. The Court did indicate that race-conscious relief is not always proper and that courts must honor Congress' concern when passing Title VII, "that race-conscious remedies not be invoked simply to create a racially balanced work force."

Johnson v. Transportation Agency, Santa Clara County, California, et al., 480 US 616 (1987)


The Transportation Agency of Santa Clara County, California voluntarily adopted an affirmative action plan, which provided that, in making promotions to positions within a traditionally segregated job classification in which women have been significantly under-represented, the agency was authorized to consider as one factor the sex of a qualified applicant. The plan was intended to achieve a statistically measurable yearly improvement in the hiring of women and minorities in job classifications where they are underrepresented. The long-term goal was to attain a work force whose composition reflected the proportion of minorities and women in the area labor force.

In selecting applicants for the promotional position of road dispatcher, the agency, pursuant to this plan, passed over petitioner, a male employee who had more experience and had received a higher score during the rating process, and promoted a female applicant

Petitioner challenged the promotion alleging that the Agency impermissibly took into account the sex of the applicant in violation of Title VII of the Civil Rights Act of 1964, as amended.


The opinion of Justice Brennan, joined by Marshall, Blackmun, Powell and Stevens upheld the promotion, finding that the plan was lawfully designed to cure "manifest imbalance" reflecting under- representation of women and others in "traditionally segregated job categories." The Court rearmed earlier holdings that such underrepresentation is to be determined by comparison of the availability of women and minorities in the relevant labor market with their representation in particular positions in the employer's work force.

The decision reiterated the Court's view that taking race into account as one of several factors in the hiring decision is consistent with the Civil Rights Act's objectives, and placed the burden on those challenging an affirmative action plan to prove its invalidity. Moreover, the Court held that the plan did not "unnecessarily trammel" the interests of employees not covered by it, as their discharge was not required nor was their advancement absolutely barred. Justice O'Connor concurred, but expressed the view that the statistical disparity underlying an affirmative action plan must be sufficient to make out a prima facie case of race or sex discrimination, although actual discrimination need not be proved.

John W. Martin, et a1., v Robert K. Wilks, et al., 490 US 104 LEd 2d 835, (1989)


The Wilks respondents, a group of white firefighters, brought suit against the City of Birmingham, Alabama and the Jefferson County Personnel Board alleging that they were being denied promotions in favor of less qualified black firefighters in violation of Title VII of the Civil Rights Act of 1964, as amended. They argued that the promotion decisions were being made on the basis of consent decrees entered into between certain black employees and the City and the Board, in a previous Title VII action to which the respondents were not parties.


In a 5-4 decision the Court rejected the doctrine of impermissible collateral attack, which immunizes parties to a consent decree from charges of discrimination by non-parties for actions taken pursuant to the decree. The Court ruled that a person cannot be bound by a judgment in a litigation in which he or she is not designated as a party, or has not been made a party by service of process. The Court held that a voluntary settlement in the form of a consent decree between one group of employees and their employer cannot possibly settle, voluntarily or otherwise, the conflicting claims of another group of employees who do not join in the agreement.

Further, rejecting petitioners' arguments that a different result should be reached because the need to join affected parties would be burdensome and ultimately discouraging to civil rights litigation because of the possibility for inconsistent judgments, the Court noted that plaintiffs who seek the aid of the courts to alter existing employment policies, or the employer who might be subject to conflicting decrees, are best able to bear the burden of designating and joining those who would be adversely affected if plaintiffs prevail.

City of Richmond v. J. A. Croson Company, 488 U.S.__*, 102 LEd 2d 854, (1989)


The City of Richmond, Virginia adopted a business utilization "set aside" plan by ordinance which required non-minority-owned prime contractors awarded city construction contracts to subcontract at least 30 percent of the dollar amount of the contract to one or more minority business enterprises, defined as an enterprise at least 51 percent owned and operated by United States citizens who were blacks, Spanish-speaking persons, Orientals, Indians, Eskimos, or Aleuts. Respondent, J.A. Croson Company, the sole bidder on a city contract, submitted a proposal that did not include sufficient minority subcontracting to satisfy the ordinance and requested a waiver of the set aside requirement The city denied the request for a waiver and rebid the project Respondent brought suit against the city alleging that the ordinance was unconstitutional under the equal protection clause of the Fourteenth Amendment to the US Constitution.


The Court, reaffirming its decision in Wygant, held that classifications based on race and/or gender are suspect, and therefore, subject to heightened judicial scrutiny. The Court further reaffirmed that such classifications must be based on more that "societal discrimination"; they must be based on a judicial or administrative finding of prior discrimination.

The Court held that there was no evidence before the Richmond City Council to support a finding of identified discrimination in the City of Richmond construction industry so as to demonstrate a compelling interest in the adoption of a 'remedial" plan.

The Court criticized the city for adducing, as evidence of disparate treatment, a comparison of the percentage of contracts awarded by the city to minorities with the percentage of minorities in the local population. The Court noted that while statistical comparisons of the racial composition of an employer's workforce and the general population may be probative of racial discrimination in entry level positions, where, as here, special qualifications are necessary, the relevant statistical pool "must be the number of minorities qualified to undertake the particular task." The Court also faulted the affirmative action eligibility of "Spanish-speaking, Oriental, Eskimo and Aleut persons" from anywhere in the country, finding a total absence of any evidence that such persons had suffered discrimination in Richmond.

Further, the Court found that it was almost impossible to assess whether the plan was narrowly tailored to remedy prior discrimination since it was not linked to identified discrimination in any way. However, the Court noted that there appeared to have been no consideration of race neutral means to increase minority participation in city contracting and that the 30 percent quota could not be said to be narrowly tailored to any goal except racial balancing.

* No page numbers, Supreme Court Volumes not yet published.

Age Discrimination and the Bona Fide Occupational Qualification ("BFOQ") Defense

Usery v. Tamiami Trail Tours, Inc., 531 F2d 224, 12 FEP 1233 (5th Cir.1976)


Tamiami Trail Tours, Inc., an interstate and intrastate motor common carrier of passengers and baggage, had a policy of refusing to consider applications of individuals between the ages of 40 and 65 for initial employment as intercity bus drivers. When challenged, Tamiami claimed that the age requirement was a bona fide occupational qualification, an affirmative defense under Section 4(f)(1) of the Age Discrimination in Employment Act of 1967.


The Court reaffirmed that in order to successfully assert the BFOQ defense the employer had the burden of proving that it had a factual basis for believing, that all or substantially all members of the class excluded by the qualification would be unable to perform safely and efficiently the duties of the job involved. If it cannot show this, an employer may apply a reasonable general rule if it can demonstrate that it is impossible or highly impractical to deal with people on an individual basis, that is, there is no practical way to differentiate the qualified from the unqualified applicants in the class.

The second element of the employer's defense is "to show that the qualification is 'reasonably necessary' to the operation of the business"; that the "essence" of the business would be undermined by hiring individuals in the excluded group.

Discrimination on the Basis of a Handicap

Southeastern Community College v Davis, 442 US 397 (1979)


Francis B. Davis, a licensed practical nurse with a serious hearing disability, was denied admission to the nursing program of Southeastern Community College to study to become a registered nurse. The College receives federal funds. Ms. Davis' application was rejected because the college believed that her hearing disability made it impossible for her to participate safely in the normal clinical training program or to care safely for patients.

Ms. Davis filed suit against the college alleging a violation of Section 504 of the Rehabilitation Act of 1973, as amended, which prohibits discrimination against "an otherwise qualified handicapped individual" in federally funded programs "solely by reason of his handicap."


The Court held that Section 504, by its terms, prohibits assumption of an inability to function in a particular context on the basis of an individual's handicap. An otherwise qualified handicapped person is one who is able to meet all of a program's requirements, including legitimate necessary physical requirements, in spite of his or her handicap.

The Court further held that Section 504 does not impose an affirmative action obligation on State agencies; Section 504 imposes no requirement on educational institutions to lower or to effect substantial modifications of standards to accommodate a handicapped person. The Court noted, however, that situations may arise where a refusal to modify an existing program might become unreasonable and discriminatory.

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