The Legal Environment of Affirmative Action
(continued ; Section 4)
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
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")
Usery v. Tamiami Trail Tours, Inc., 531 F2d 224, 12 FEP 1233 (5th
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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