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Urofsky, Melvin I. Affirmative Action on Trial: Sex Discrimination in

Johnson v. Santa Clara(University Press of Kansas, 1997)





From: Fran Siders <jbevill@FCG.NET>

From: Douglas Stephen Phelan <dsphela@ILSTU.EDU>

From: Edmund Stuhr <epstuhr@YAHOO.COM>

From: "Brian L. Kelly" <blkelly@ ILSTU.EDU>

From: Mylon Kirsky <mjkirks@ilstu.edu>

From: Scott Berends <swberen@ilstu.edu>


From: Maureen N Kaszonyi <mnkaszo@ilstu.edu>

From: John Kropke <jrkrop2@ilstu.edu>

From: Robert W Taylor <rwtayl2@ilstu.edu>


From: Scott Berends <swberen@ilstu.edu>

From: Laura Pranaitis <laprana@ILSTU.EDU>

From: Justin Mayo <jdmayo@ILSTU.EDU>

From: Laura Pranaitis <laprana@ILSTU.EDU>

From: "Mack H. Jones" <mjones@CAU.EDU>

From: Sharon Michele Skowron <smskowr@ILSTU.EDU>

Subject:      Affirmative Action On Trial (Siders)

Subject:      Review: Affirmative Action on Trial(Phelan)

Subject: REV: Affirmative Action on Trial(STUHR)

Subject:      Book Review: Melvin Urofsky "Affrimative Action on Trial"

Subject:      Affirmative Action (Mylon Kirksy)

Subject:      Berends, Urofsky review

Subject:      Reply to: Affirmative Action (Mylon Kirksy)

Subject:      Affirmative Action on Trial

Subject:      Affirmative Action on Trial (review)

Subject:      Affirmative Action on Trial REVIEW

Subject:      Re: Berends, Urofsky review

Subject:      Reply to rob: Berends, Urofsky review

Subject: Review of "Affirmative Action on Trial"

Subject: Review of "Affirmative Action on Trial"

Subject: Response to Justin Mayo

Subject: Re: Laura Pranatis's Review of "Affirmative Action on Trial"

Subject: Affirmative Action on Trial

Date:         Tue, 3 Mar 1998

Date:         Wed, 4 Mar 1998

Date: Fri, 06 Mar 1998

Date:         Fri, 6 Mar 1998

Date:         Tue, 16 Mar 1999

Date:         Tue, 16 Mar 1999

Date:         Tue, 16 Mar 1999

Date:         Tue, 16 Mar 1999

Date:         Wed, 17 Mar 1999

Date:         Wed, 17 Mar 1999

Date:         Wed, 17 Mar 1999

Date:         Tue, 23 Mar 1999

Date: Mon, 27 Mar 2000 21:09:50 -0600

Date: Thu, 30 Mar 2000

Date: Thu, 06 Apr 2000

Date: Fri, 07 Apr 2000 15:38:17 -0400

Date: Wed, 12 Apr 2000

Date:         Tue, 3 Mar 1998

From: Fran Siders <jbevill@FCG.NET>

Subject:      Affirmative Action On Trial (Siders)




JOHNSON V. SANTA CLARA  (University Press of Kansas, 1997) Review by:  Fran




        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



        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



        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