|
POS334-L: THE RACE
AND ETHNICITY BOOK REVIEW DISCUSSION LIST |
Urofsky,
Melvin I. Affirmative Action on Trial: Sex Discrimination in
Johnson
v. Santa Clara(University
Press of Kansas, 1997)
Date: Tue, 3 Mar 1998
From: Fran Siders <jbevill@FCG.NET>
Subject: Affirmative
Action On Trial (Siders)
Melvin I.
Urofsky, AFFIRMATIVE ACTION ON TRIAL:
SEX DISCRIMINATION IN
JOHNSON
V. SANTA CLARA (University Press of
Kansas, 1997) Review by: Fran
Siders
2-26-98.
A popular belief about affirmative
action is that less qualified women or
minorities
steal jobs for more qualified men. Paul
Johnson believed that
Diane
Joyce took a road dispatcher job away from him because she was a
woman. Paul Johnson decided to do something about
what he considered
discrimination
against him. Paul Johnson hired a lawyer
and, in the great
American
tradition, sued the Transportation Agency of Santa Clara County
California. Affirmative Action on Trial is a journey of
the case of
JOHNSON
V. TRANSPORTATION AGENCY OF SANTA CLARA
COUNTY.
All the applicants applying for the
road dispatcher’s job sat for an oral
board
to be questioned. Of the twelve
applicants, only seven scored over
seventy
to qualify for the job. The
Transportation Agency had the "rule of
seven." The hiring supervisor could choose any of
the final seven to fill
the
position. The applicants also had a
second informal oral interview
with
departmental supervisors. The
responsibility for hiring rested with
the
supervisor for road operations that was routinely approved by the
Director
of the Transportation Agency.
Diane Joyce placed fourth on the
list. Diane had applied for the job in
1974
and was told that the job required road maintenance work experience.
Diane
Joyce applied for road maintenance worker, was hired, and became the
first
woman to hold the position. Once on the
job, she was told by her
supervisor
that she was taking a job away from a man and faced constant
harassment. She was always given the job of handling the
caution paddle
and was
only allowed to shovel when the crew was short. When there was a
full
crew, she was put back on the caution paddle.
Diane was written up
for a
safety violation when the supervisor failed to write up six men for
the
same type of safety violation. She
filed a grievance with the union
and the
supervisor agreed to tear up her violation.
Diane Joyce was a
Union
Shop Steward which endeared her to the union, but not union haters,
such as
Paul Johnson and many of the supervisors.
After receiving
notification
that she qualified for the road dispatcher’s job, Diane
informed
the general supervisor she wanted the job.
According to protocol,
the
general supervisor should have contacted her within three days for a
second
board interview. After waiting for ten
days with no response, Diane
drove
to the general supervisor’s office to set up an appointment.
"Coincidentally,"
the interview was set up for the time she had told the
general
supervisor she attended a class.
Paul Johnson placed second on the list
for the road dispatcher’s job. He
currently
filled in for the road dispatcher, and was well liked by the
other
workers. After qualifying in 1974, he
was informed that he was "next
in
line" for the job. After the
second board interview, the general
superintendent
told Johnson that the board strongly endorsed him and that
soon
the job would officially be his. When
informed that Diane Joyce
received
the job because of affirmative action, Paul Johnson became furious
and
decided to fight for the job he felt rightfully belonged to him. He
decided
to go through the channels that had never failed him before. Paul
spoke
to various supervisors and to the Affirmative Action Coordinator. No
one
gave him what he considered a rational reason for taking the job away
from
him. Paul Johnson called James Dawson,
a local attorney who
specialized
in discrimination suits. James Dawson
wrote a letter to the
Transportation
Agency that was ignored. Dawson filed a
claim with the
Equal
Employment Opportunity Commission (EEOC).
The EEOC wanted the county
to meet
with Jim Dawson to try to settle the dispute.
The county ignored
the
letter sent by the EEOC.
Dawson,
believing he had a straight forward, solid case secured a "right to
sue"
letter from the EEOC and filed papers in the US District Court for the
Northern
California District, alleging a violation of Title VII of the
Civil
Rights Act of 1964. Dawson decided to
file in federal court because
of the
backlog of cases in state courts.
Relying on WEBER, Dawson sued
solely
on a Title VII violation framing his strategy on an individual
basis,
not as an attack on affirmative action.
For two years, Diane Joyce worked the
road dispatcher’s job. Paul
Johnson’s
frustration and resentment of Diane Joyce and affirmative action
grew. Then, the case finally opened in the
courtroom of Judge William A.
Ingram. Johnson and Dawson believed they had an
open-and-shut case of
Title
VII discrimination. Steven Woodside,
counsel for the county, was
equally
as confident that the county acted with lawful discretion. Both
attorneys
were confident of Judge Ingram’s abilities and impartiality and
decided
to let him decide the merits of the case.
Although the
dispatcher’s
job was classified as a skilled job, both Johnson and Joyce
agreed
that most of the duties were clerical in nature.
At trial, Paul Johnson was portrayed
as a hard working, decent man who was
cheated
out of his job because of gender.
Dawson made it appear as if
Johnson
was the most qualified person for the job and that if there was not
a woman
on the list the job would have been his.
Dawson portrayed Diane
Joyce
as a troublemaker who scared the company into giving her the job.
The
Director of the Transportation Agency admitted that he normally did not
become
involved with the hiring process.
Although the road operations
people
wanted Paul, the Affirmative Action Director urged him to appoint a
woman. Since the director had no problem with
affirmative action, he
suggested
Diane Joyce be given the job because of her gender. Of the 238
skilled
jobs in the Transportation Agency, no woman held a skilled
position,
the county could not admit a history of past discrimination. The
county affirmative
action plan called for a goal of 36.4 percent of women
in all
positions. The county would never meet
affirmative action goals
without
displacing a few men along the way.
Joyce qualified for the
dispatcher’s
job and the county did the right thing by placing her in the
position. Working in a male dominated field, women
need the help of
affirmative
action plans. Because even though they
are qualified,
supervisor
will always find a man who is more qualified.
Paul Johnson was
not the
most qualified person from the list.
The Court needed to determine
if the
county’s actions were legal and constitution, not if they were fair.
Judge Ingram struggled with the
problem for almost three months before
reaching
his decision. He felt the facts clearly
showed that Paul Johnson
had
been discriminated against because of gender, a violation of Title VII
of the
Civil Rights Act. In the previous case
of WEBER, the Supreme Court
had
approved the use of race-conscious plans that responded to a history of
past
discrimination. Judge Ingram viewed the
"goal" as a quota because it
appeared
rigid and had no end date. Judge Ingram
ruled in favor of Paul
Johnson
because the county’s affirmative action plan did not measure up to
the
criteria in WEBER. Judge Ingram found
no evidence of past
discrimination. Joyce received the job because of gender and
Title VII of
the
Civil Rights Act of 1964 prohibited gender discrimination except as a
remedy
for past discrimination.
The Board of Supervisors decided to
appeal the decision. The governing
board
of the Local 715 decided the Union needed to become involved and
support
Diane Joyce. Dave Rosenfeld filed a
motion with Judge Ingram to
allow
Local 715 to intervene. Judge Ingram
ordered that the union could
intervene
for the purposes of arguing a motion for a new trial and could
participate
in any appeals taken by the county to a higher court.
The appeal was placed on the short
calendar of the Ninth Circuit. Cases
placed on
the short calendar had little chance of being reversed because
the
judges did not see any major mistakes in the lower court’s ruling. The
case
was heard by a panel of three judges drawn from the larger number of
judges
appointed to the court. The agency’s
attorney, Woodside, faced a
dilemma: he had to
rely on the disparities shown by the numbers because
admitting
prior discrimination would open the county up to a flood of Title
VII
lawsuits. Dawson was once again
confident that the facts would speak
for
themselves. The Ninth Circuit reversed
the lower court and upheld the
affirmative
action plan of Santa Clara County as meeting the WEBER
guidelines.
Paul Johnson, thoroughly disgusted,
decided to quit fighting and retire
from
the Transportation Agency. Johnson went
and told Dawson who
encouraged
Paul to take the case to the US Supreme Court through the help
of a
public interest firm. They decided to
go with Mountain States Legal
Foundation
because K. Preston Oade, who worked at the foundation, had
extensive
experience in affirmative action and employment discrimination
law. Shortly after Dawson agreed to take a
backseat and Johnson signed a
consent
form allowing Mountain States to appeal, Preston Oade left the
foundation. Constance Brooks would handle Paul’s case.
Brooks based her appeal on the Ninth Circuit’s finding that Santa Clara’s
affirmative
action plan did not violate the voluntary affirmative action
criteria
set out in WEBER. Because the trial was
conducted strictly on
Title
VII grounds, the appeal made no reference to the Equal Protection
Clause
of the Fourteenth Amendment that guarantees equal protection of the
laws to
everyone. Steve Woodside was not very
concerned about Mountain
States’
appeal because the Court accepted so few cases for review. He
arranged,
by mail, to be admitted the Supreme Court bar in order to respond
to the
petition. Woodside’s key points
responded directly to Brooks. He
maintained
that the Court of Appeals decision was consistent with WEBER
standards
and presented no facts giving rise to a new issue requiring
review
by the Court.
Through the rule of four, the Court
can grant certiorari. Four justices
must
agree that the case should be heard by the Supreme Court. Four
strikes
a balance because if five was the required number, the court would
be
prejudging a case. Brennan, Marshall,
Blackmun, and Stevens the four
most
liberal justices voted to deny cert.
White, Rehnquist, O’Connor, and
Chief
Justice Burger the four most conservative justices voted to grant
cert
meeting the rule of four.
The Court’s decision would rest on the
case’s facts and precedent set in
previous
cases. In UNITED STEELWORKERS OF
AMERICA V. WEBER (1979), the
Supreme
Court ruled that Title VII does not prohibit race-conscious
affirmative
action programs as long as the plans are temporary and goal
oriented. The 1964 Civil Rights Act was not intended
to prohibit the
private
sector from taking effective steps to implement the goals of Title
VII. In FIREFIGHTERS LOCAL UNION 1784 V. STOTTS
(1984), the Court held
seniority
programs valid against affirmative action programs. In WYGANT V.
JACKSON
BOARD OF EDUCATION (1986), the Court held that affirmative action
plans
must clearly establish a pattern of prior discrimination. The
decision
in FIREFIGHTERS V. CLEVELAND (1986) gave lower courts broad
discretion
in fashioning consent degrees including hiring programs with
explicit
racial preferences. In LOCAL 28 SHEET
METAL WORKERS V. EEOC
(1986),
the Court upheld a court-ordered goal of 29.23 percent minority
membership. In COUNTY OF WASHINGTON V. GUNTHER (1981),
the Court held that
women
could file certain claims alleging sex-based wage discrimination
under Title
VII, even if no man had an equal but higher paying job. These
cases,
along with other recently decided US Supreme Court cases, had done
nothing
to clarify the issues surrounding affirmative action. The Court
seemed
to change directions with every decision.
Both sides felt the could
win by
a narrow victory by getting the vote of Justice Powell or Justice
O’Connor.