The Legal Environment of Affirmative Action
(continued; Section 5 - last section)
Major Federal Court Cases (continued)
Discrimination on the Basis of Sex
General Electric Co. v. Gilbert, 429 U.S. 125 (1976)
General Electric provided a disability plan for all employees which excluded
pregnancy disabilities from its coverage. A group of past and present
female employees filed suit alleging that the exclusion constituted sex
discrimination under Title VII of the Civil Rights Act of 1964.
The Court found the plan to be non-discriminatory in that there was no
risk from which women were protected and men were not, and no risk from
which men were protected and women were not There was no proof that the
plan was worth more to men than women; gender-based discrimination does
not result simply because an employer's disability plan is less than all-inclusive,
that is, that it does not include compensation for the additional risk,
unique to women, of pregnancy related disabilities.
In response to the Court's decisions in Gilbert and Nashville Gas Co.
v. Satty, 434 US 136 (1977), in 1978 Congress enacted Section 701(k)
of Title VII of the Civil Rights Act of 1964, as amended, (the Pregnancy
Discrimination Act, 42 USC Section 2000e-(k), which provides that
"the terms `because of sex' or `on the basis of sex' include,
but are not limited to, because of or on the basis of pregnancy,
childbirth, or related medical conditions, and women affected by
pregnancy, childbirth, or related medical conditions shall be treated
the same for all employment-related purposes, including receipt
of benefits under fringe benefit programs, as other persons not
so affected but similar in their ability or inability to work,..."
California Federal Savings and Loan Association, et al. v. Mark Guerra,
et al., 479 US 272 (1978)
A receptionist employed by petitioner California Federal Saving and Loan
Association (Cal Fed) took a pregnancy disability leave in January 1982.
She attempted to return to work in April of that year, but was advised
that her job had been filled and that there were no receptionist or similar
positions available. Cal Fed had a facially neutral leave policy that
permits employees who have completed three months of service to take unpaid
leaves of absence for a variety of reasons, including disability and pregnancy.
Cal Fed reserved the right to terminate an employee if a similar position
is not available upon their return from a leave of absence.
The receptionist filed a complaint with California's Department of Fair
Employment and Housing, which issued an administrative accusation against
Cal Fed, charging it with violating a California statute that:
- required employers to provide female employees unpaid pregnancy disability
leave of up to 4 months and
- was authoritatively construed by the Fair Employment and Housing
Commission as requiring reinstatement of employees returning from such
pregnancy leave unless the job previously held was no longer available
due to business necessity.
Cal Fed brought this action challenging the California statute on the
basis that it is inconsistent with and pre-empted by Title VII of the
Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act
The Pregnancy Discrimination Act added pregnancy to the definition of
sex discrimination prohibited by Title VIL
The Court held that the California statute is not pre- empted by Title
VII, as amended by the Pregnancy Discrimination Act; it agreed with the
conclusion of the Court of Appeals
' that Congress intended the Pregnancy Discrimination Act to be "a
floor beneath which
pregnancy disability benefits may not drop - not a ceiling above which
they may not rise."
The Court found that Title VII, as amended by the Pregnancy Discrimination
Act, and the California statute are not inconsistent, that they
share a common goal, "to achieve equality of employment opportunities
and remove barriers that have operated in the past to favor an identifiable
group of... employees over other employees."
Further, the Court determined that the California statute did not require
the doing of an act which is unlawful under Title VIL 'The statute does
not compel California employers to treat pregnant workers better than
other disabled employees; it merely establishes benefits that employers
must, at a minimum, provide to pregnant workers."
City of Los Angeles v. Manhart, 435 US 702 (1978)
The Los Angeles Department of Water and Power required its female employees
to make larger contributions to its pension fund than its male employees.
This was based on a determination by the department, after a study of
mortality tables, that its female employees would live a few years longer
than its male employees. The longer life expectancy resulted in a greater
pension cost for the average retired female. Respondent brought this suit
on behalf of women employed or formerly employed by the Department alleging
a violation of Title VII of the Civil Rights Act of 1964, as amended.
The Court held that the basic policy of Title VII requires the focus
to be on fairness to individuals, rather than classes: Title Vll makes
it unlawful "to discriminate against any individual..." (emphasis
added), precluding treatment of individuals as simply components of a
racial, religious, sexual or national class.
Even a true generalization about the class is an insufficient reason
for disqualifying an
individual to whom the generalization does not apply.
Arizona Governing Committee v Norris, 463 US 1073 (1983)
The State of Arizona offered its employees the opportunity to enroll
in a deferred compensation plan. All of the companies selected to
offer investment opportunities to the employees used sex based mortality
tables to calculate monthly retirement benefits to be paid to employees
whereby a man would receive larger monthly payments than a woman
who deferred the same amount of compensation and retired at the
same age because women live longer on the average than men. The
tables did not incorporate such other longevity factors as weight,
smoking habits, medical or family history or alcohol consumption.
An investor in the plan brought suit alleging it was in violation
of Title VII of the Civil Rights Act of 1964, as amended.
Use of such tables was held by the Court to constitute discrimination
on the basis of sex in violation of Title VIL
Price Waterhouse v. Ann B. Hopkins, 490 U.S.___*, 104 LEd 2d 268,
Respondent Hopkins, a senior manager in an office of Price Waterhouse,
a nationwide professional accounting partnership, was proposed by
the partners in her office for partnership. The decision on her
candidacy was postponed and the following year she was not reproposed
for partnership. Respondent brought suit against Price Waterhouse
under Title VII of the Civil Rights Act of 1964, as amended, alleging
that the firm had discriminated against her on the basis of gender
in its decisions regarding partnership.
The District Court found that Price Waterhouse had unlawfully discriminated
against respondent on the basis of gender by consciously giving credence
and effect to partners' comments about respondent's aggressive behavior
that resulted from gender stereotyping. Further, although the Court found
that Price Waterhouse legitimately and fairly emphasized interpersonal
skills in its partnership decisions and that the firm had not fabricated
its complaints about respondent's interpersonal skills as a pretext for
discrimination, the Court held that Price Waterhouse had not carried the
heavy burden of proving, by clear and convincing evidence, that it would
have placed respondent's candidacy on hold, absent the discrimination.
The Court of Appeals armed the decision of the District Court, but held
that even if a plaintiff proves that discrimination played a role in an
employment decision, the defendant may avoid liability by clear and convincing
evidence that it would have made the same decision in the absence of discrimination.
The Supreme Court granted review of the case for the limited purpose
of resolving a conflict concerning the respective burdens of proof of
a plaintiff and a defendant in a suit under Title VII, when it has been
shown that an employment decision resulted from a mixture of legitimate
and illegitimate motives.
The Court found that Title VII meant to condemn not only those decisions
based solely on illegitimate factors but also those employment decisions
based on a mixture of legitimate and illegitimate considerations. The
Court held that in all circumstances, except when gender is a bona fide
occupational qualification reasonably necessary to the normal operation
of a particular business or enterprise, a person's gender may not be considered
in making decisions that affect her. However, finding that another important
aspect of Title VII is its preservation of an employer's freedom of choice,
the Court concluded that an employer will not be liable if it can prove
by a preponderance of the evidence that, even if it had not taken gender
into account, it would have come to the same decision regarding a particular
person. Once a plaintiff shows that the employer actually relied on her
gender in malting its decision, the employer must show that its legitimate
reason, standing alone, would have induced it to make the same decision.
* No page numbers, Supreme Court Volumes not yet published.
Florida et al. v. Long; 487 U.S.__*, 101 Led 2d 206, (1988)
Petitioners, a class of retired male Florida state employees who retired
prior to Florida's adoption of unisex actuarial tables for all employees
in the Florida Retirement System retiring after August 1, 1983, brought
suit alleging that Florida had violated Title VII of the Civil Rights
Act of 1964 by operating pension plans that discriminated on the basis
The Court decided that recalculation of pension payments to correct previous
unlawful gender bias need not be retroactive to 1978, when the Court
first decided in City of Los Angeles v. Manhart that pension contributions
must be collected on a nondiscriminatory basis. The plaintiffs had
argued that, although the Court had not addressed the benefits issue
until 1983, the earlier decision on contributions had put employers
on notice that all aspects of pension plans must be handled on a
* No page numbers, Supreme Court Volumes not yet published.
Mentor Savings Bank, FSB v. Michelle Vinson, 477 US. 57 (1986)
Michelle Vinson, a former employee of Meritor Savings Bank, brought an
action against the bank alleging that during the four years she had been
employed there she had "constantly been subjected to sexual harassment"
by Sidney Taylor, a vice president of the bank and manager of one of its
branch offices, in violation of Title VII of the Civil Rights Act of 1964,
The Court held unanimously that Title VIPs prohibition against sea discrimination
is violated by sexual harassment even when the victim does not incur tangible
loss of an economic character. Title VII guarantees employees "the
right to work in an environment free from discriminatory intimidation,
ridicule and insult" and is violated where it is demonstrated "that
discrimination based on sea has created a hostile or abusive work environment."
The Court also rejected the defense that "voluntary" sea related
conduct cannot constitute sexual harassment; affirming that the crucial
element of a sexual harassment claim is that the advances were "unwelcome."
The decision indicates that, in determining that criterion, evidence of
a complainant's provocative speech or dress is relevant.
While deciding that the lower court had erred in concluding that employers
are automatically liable for sexual harassment engaged in by supervisors,
the court indicated that lack of notice of the conduct would not necessarily
insulate the employer. Legal principles relating to "agency"
should be followed in that regard.
Major State Court Cases
[Note: More on these and other major
state court cases is available on the "Law Cases of Note" page
of the SSDIHP]
William L. McGowan, and the Civil Service Employees Association, Inc.,
Local 1000, AFSCME, AFL-CIO v Karen S. Burstein, et al., 71 NY2d 729
Plaintiffs, the Civil Service Employees Association, instituted an action
against the New York State Department of Civil Service challenging the
department's zone scoring of written tests. In zone scoring, different
"raw" test scores, corresponding to the number of correct answers,
are assigned the same final test score. Candidates with the same zone
score are considered equally eligible for appointment. Plaintiffs claimed
that zone scoring per se violates Article V, Section 6 of the New York
State Constitution which requires that, as far as practicable, the merit
and fitness of candidates for appointments and promotions in the civil
service must be ascertained by examination which, as far as practicable,
must be competitive. They allege that the use of zone scoring destroys
the competitiveness of the examination process.
The State Court of Appeals, reversing an order of the Appellate Division,
Third Department, granted summary judgment to the state defendants, upholding
the constitutionality of the department's use of zone scoring.
The Court held that "competitiveness is not a constitutional end
in itself' but rather that "merit selection is the overarching
constitutional goal and command." The Court recognized the
desirability of an examination based, objective selection system;
but also recognized the need in properly justified cases to consider
traits not measured in a written examination and to discount factors
that are unrelated to a candidate's fitness for a position, "not
only because fitness is the object of the merit system, but also
because such factors may discriminate among equally qualified candidates
along ethnic, racial or sexual lines," in violation of the
State Human Rights Law and the Federal Civil Rights Act of 1964.
Tonee Chilles, et al. v. Karen S. Burstein, et a1, 137 AD2d 81 (Third
The plaintiffs, candidates in a civil service examination for the position
of Treatment Team Leader, challenged the constitutionality of the Department
of Civil Service's use of zone scoring on the written test portion of
that examination. They also challenged the use of a nomination procedure
to select candidates who were successful on the written test to take the
oral portion of the examination.
Plaintiffs argued that both zone scoring and the nomination procedure
violated Article V, Section 6 of the New York State Constitution. They
argued that their use was discriminatory under the State Human Rights
Law, insofar as the department instructed local supervisors to make nominations
on the basis of "affirmative action" considerations.
The Appellate Division, Third Department, affirmed the lower court decision
which held that the particular examination, to the extent it used zone
scoring and the nomination procedure in conjunction, violated the constitutional
merit and fitness requirements.
The Appellate Division found that the wide size of the zones had a substantial
blurring effect on the relative merit of candidates and that the nomination
procedure further diluted the purposes behind the merit and fitness requirement
of Article V, Section 6. Further, the Court indicated its view that the
Department had failed to substantiate its claim that affirmative action
purposes were achieved.
Rex Paving Corp. v. Franklin White, et a1., 139 AD 2d 176 (Third
Plaintiff; a corporation which supplies materials and services as both
a contractor and a subcontractor for public improvement projects, sought
a judgment declaring that affirmative action programs implemented by the
State's Office of General Services and the Department of Transportation
in favor of disadvantaged business enterprises (DBE) were unlawful because,
among other things, they were implemented without legislative authority
and they deny plaintiff its rights to equal protection under the New York
While noting that it is well established that the Executive may not mandate
an affirmative action program absent a specific legislative grant of authority,
the Court found that the necessary authorization existed here.
The Court, in addressing the equal protection issue, determined that
since the programs establish remedial racial classification, they must
be subjected to strict judicial scrutiny. The Court then applied the two-part
analysis, delineated in Wygant: whether the racial classification is justified
by a compelling governmental interest; and if so, whether the challenged
state action is "narrowly tailored" to achieve that goal.
While recognizing that the State has a vital interest in addressing the
underrepresentation of women and minorities in the construction industry,
the Court found that a generalized concern for remedying "societal
discrimination not traceable to the State's own action 'is not a sufficient
justification'". Affirmative action programs must be premised on
"convincing evidence that remedial action is warranted." However,
the Court interpreted Wygant as not requiring the State to establish actual
instances of prior unlawful discrimination. Rather, statistical evidence
of a disparity between participation of DBE's in public contracts and
the percentage of qualified DBE's in the relevant labor market would be
Finally, the Court found that the programs were "narrowly tailored"
in that they did not establish a mandatory set-aside, but required contractors
to use "good faith" in reaching goals which varied depending
on demographics, etc. As the programs were further subject to annual review,
the lack of a specific duration limit was found not to be fatal.
Gerald J. Hase, Jr. v. New York State Civil Service Department,
___AD2d __* (Third Department, 1989)
Plaintiff; a white male on civil service eligible lists for Legal Assistant
I and II and Beverage Control Investigator Trainee and Beverage Control
Investigator Trainee (Spanish Speaking) challenged, as discriminatory,
certain hiring actions taken with respect to such lists. Plaintiff alleged
that the actions were taken pursuant to Governor Cuomo's Executive Order
No. 6, which established an affirmative action program for State agencies,
and he alleged that that program is contrary to the State constitutional
requirement that appointment to the State Civil Service be based on merit
The Supreme Court judge converted the proceeding to an action seeking
a judgment declaring that Executive Order No. 6 violates the State constitutional
merit and fitness requirement
The Appellate Division affirmed the State constitutionality of Governor
Cuomo's Executive Order No. 6 which establishes an affirmative action
program for the executive branch, under the supervision of the Department
of Civil Service.
The Court held that the aim of Executive Order No. 6 was to "enlarge
the pool of persons eligible for employment", finding that the Order
does not refer to quotas or mandate hiring preferences. Thus, the Court
held, Executive Order No. 6 is legislatively authorized pursuant to the
State's Human Rights Law.
* Decision not yet Published
[This completes "The
Legal Environment of Affirmative Action." as published 3/90]
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