U.S. Supreme Court Upholds Goals, Not Quotas, to Remedy Discrimination

Date 1986

In a number of decisions, the U.S. Supreme Court defined the permissible extent of affirmative action programs.

Locale Washington, D.C.

Key Figures

• William J. Brennan (1906-1997), associate justice of the United States, 1956-1990, who wrote the majority opinions in several affirmative action cases
• Warren E. Burger (1907-1995), chief justice of the United States, 1969-1986, who advocated an activist role for the Supreme Court in fostering civil liberties
• William H. Rehnquist (1924-2005), chief justice of the United States, 1986-2005
• Antonin Scalia (b. 1936), associate justice of the United States beginning in 1986

Summary of Event

Title VII of the Civil Rights Act of 1964, amended by the Equal Employment Opportunity Act of 1972, is intended to eliminate discrimination by employers and labor unions. In addition, Executive Order 11246 regulates employment practices of federal contractors and, in some cases, requires contractors to implement affirmative action programs to improve the opportunities of minorities and women. The implementation of these fair employment regulations led to considerable legal interpretation. In United Steelworkers of America v. Weber (1979), the U.S. Supreme Court set down norms for legitimate affirmative action programs. The Weber criteria are that any affirmative action program must be part of an overall plan, must be voluntary, must have an objective of remedying imbalances arising from discrimination, must be temporary, and must not trammel the interests of others.

Throughout the early 1980’s, the U.S. Justice Department under President Ronald Reagan argued that the objective of civil rights legislation should be to rectify injustices done to specific individuals. Giving a preference to a minority group member who was not a proven victim of discrimination was considered to be a form of “reverse discrimination” against the majority. A number of Supreme Court decisions in the 1986 session served to expand the scope of permissible affirmative action programs.

In Wygant v. Jackson Board of Education, the Court supported by a five-to-four vote the concept of an affirmative action plan along the lines spelled out in Weber but opposed a provision in the plan that gave preference to black workers in layoff decisions. The plurality view of the Court was that when a person is laid off, the entire burden of the decision is borne by that employee. The rights of the laid-off worker are affected much more than in a case in which a person is not promoted. The effort to remedy discrimination imposes an excessive cost on a single person, the one laid off. In addition, the Court concluded that other remedies that imposed less cost might have been available. The view of the Court was that although seniority could be overridden in promotions and other job assignments, it should not be in layoffs.

In 1975, a New York district court found that the sheet metal workers’ union had discriminated against nonwhite workers in its apprenticeship program. The court ordered an end to the discrimination and established a goal of 29 percent nonwhite membership, to be reached by July, 1981. The court arrived at the percentage based on the nonwhite composition of the local New York City labor market. The union was subsequently fined for failing to meet the goal. Both the goal and the date for achieving it were changed. A district court and the court of appeals found the union in contempt for failing to reach the court-ordered revised goals. The union then appealed to the Supreme Court. The union, along with the solicitor general of the United States, argued that the membership goal and the means prescribed to achieve it were in violation of Title VII of the Civil Rights Act, which implies that no court can order admission of an individual to a union if that individual was refused for reasons other than discrimination.

In Local 28 Sheet Metal Workers International Association v. Equal Employment Opportunity Commission (1986), the Supreme Court affirmed, by a five-to-four vote, the decision of the district court against the union. Justice William J. Brennan, speaking for the Court, asserted that even though the individuals admitted to the apprenticeship program had not themselves been previously denied admission or discriminated against, the courts had the right to provide relief when the union had been guilty of egregious discrimination or discrimination had been endemic. Brennan concluded that unless courts have the right to require agencies to employ qualified minorities roughly in proportion to their number in the labor market, it may be impossible to provide the equal opportunity that is the intent of Title VII. Brennan made a subtle distinction regarding racial quotas. Although it is clear from congressional deliberations and Title VII that quotas should not be used simply because of the existence of racial imbalance in the workplace, this does not preclude the use of quotas by the courts to rectify racial imbalances in cases in which discrimination is proven to exist. The purpose of affirmative action is not to make whole the victims of discrimination but rather to provide relief to the group discriminated against. The recipients of relief need not have suffered themselves.

In Local 93 International Association of Firefighters v. City of Cleveland (1986), the Supreme Court by a six-to-three vote approved a consent decree to eliminate racial discrimination. An association of minority group members brought suit against the city of Cleveland, charging discrimination in the city’s fire department. A federal district court approved a consent decree between the city and the firefighters’ association to rectify the problem. The decree set forth a quota system for the promotion of minorities over a four-year period. The terms of the decree were arrived at by the parties to a lawsuit and were approved by the court. Local 93 was not a party to the initial suit, and it did not approve the decree. Local 93 appealed to the Supreme Court, arguing that public safety required that the most competent people be promoted. The Court again affirmed the right of the courts to prescribe corrective plans that benefit individuals who were not actual victims of discrimination. The majority of the Court further held that voluntary consent decrees can go beyond what the courts would have ordered to rectify the problem. The decision did recognize the right to challenge consent decrees in the courts. In the private sector, consent decrees arrived at with the Equal Employment Opportunity Commission (EEOC) could similarly be challenged as violations of collective bargaining agreements, Title VII, or the equal protection clause of the Fourteenth Amendment.

In the light of a 1984 Supreme Court decision, the Reagan administration had advised cities to reexamine consent decrees, believing that less aggressive affirmative action plans might be acceptable. The administration now found itself uncertain as to which way the court was leaning. These 1986 decisions marked the end of the activist approach of the Court under Chief JusticeWarren E. Burger while at the same time making the more conservative approach of Chief Justice William H. Rehnquist more difficult to establish.

Significance

Although the 1986 decisions applied specifically to minorities, it soon became clear that affirmative action programs similar to those approved by the Supreme Court could also be applied to women. In Johnson v. Santa Clara County Transportation Agency (1987), the Court, by a six-to-three vote, concluded that promoting a woman to the job of dispatcher ahead of more qualified men was acceptable under the provisions of a voluntary affirmative action program in the public sector. The agency was to consider sex as one factor in making promotion decisions for jobs in which women were underrepresented. The long-term objective was to have employment in the agency mirror the composition of the local labor market. No explicit quota was established, but the agency was to examine the composition of its workforce annually and undertake the steps necessary to achieve its long-term goal.

The case arose when a woman was given the job of dispatcher over Paul Johnson, another candidate. Johnson appealed to the Equal Employment Opportunity Commission. The EEOC granted the right to sue, and the lower court held that Johnson’s rights under Title VII of the Civil Rights Act had been violated. The court ruled that gender had been the only factor in the promotion of the woman and that the agency program was not “temporary,” as required by the Weber decision.

In the majority opinion of the Supreme Court, Justice Brennan was careful to avoid the pejorative implications of quotas. He concluded that there was a manifest imbalance in the representation of women in this job classification and that the agency program did not specify a strict number of women that should be hired but rather set aspirations that were subject to change and review. Hiring was not to be based solely on applicants’ sex; rather, sex was to be one factor considered. Justice Lewis F. Powell, Jr., pointed out that there were seven candidates who were deemed qualified for the job, so Johnson did not have an unqualified right to the job in the absence of the preference granted to women. Although Johnson was denied promotion, he retained his position in the agency, so that an undue burden was not imposed on him. In dissent, Justice Antonin Scalia interpreted the majority opinion as an unjustified extension of Title VII intended to alter social standards. The case was the first to establish that voluntary affirmative action programs to overcome the effects of societal discrimination are permissible.

In United States v. Paradise (1987), the plurality opinion of the Court supported the promotion of one black state trooper for each white state trooper promoted. This course of action was allowed because of the narrowly defined nature of the preference and because of the egregious nature of past violations of equal rights. The Court noted that the plan was flexible and temporary and that it postponed rather than denied the promotion of white officers.

In San Francisco Police Officers’ Association v. City and County of San Francisco (1987), a federal appeals court again applied the Weber test. The city used three criteria in promoting police officers: a written examination, a multiple-choice test, and an oral examination. After administering the first two parts, the city found that the percentage of minorities who passed was lower than desired. The results were then rescored on a pass-or-fail basis, with the deciding factor for those who passed being the oral examination. The city had thus rescored promotional examinations to achieve racial and gender percentages. The court found that rescoring the examinations unnecessarily trammeled the interests of the nonminority police officers. Candidates for promotion, the court ruled, are denied equal opportunity if test results can be rescored. The practice was deceptive in that candidates had a right to know how the test results were to be weighed as they prepared for the test. In addition, other methods of correcting the racial imbalance were available that were less dramatic or less costly to others.

In 1989, the Supreme Court handed down five decisions, all with five-to-four majorities, that reversed many of the 1986 cases. Essentially, these decisions shifted the burden of proof to the employee, who had to demonstrate that practices by an employer were unrelated to the requirements of a job. Statistical data indicating small proportions of minority group members holding a job were no longer sufficient to claim discrimination. The Court limited the extent to which state and local governments could set aside positions to be filled only by minority group members. The Court also allowed for an affirmative action program to be reexamined if, over the course of the program, employees claimed reverse discrimination.

The view of the courts with regard to employment quotas has been far from unanimous and has continued to evolve. Title VII explicitly states that discrimination based on race is prohibited. In this context, quotas that discriminate are prohibited. Difficulties arise in determining whether these prohibitions are universal. Quotas implemented to achieve racial balance even though discrimination has not been demonstrated would be deemed illegal. Uncertainty occurs when discrimination has been found to exist and either voluntary or court-mandated programs are prescribed to rectify the problem.

Critics argue that setting numerical standards in effect discriminates against the majority. Choosing one person over another is discriminatory toward the person not chosen, and the person chosen has not necessarily been discriminated against in the past. Therefore, the person chosen is given a preference that is undue and at the expense of someone else who was not a party to any discrimination. The advocates of affirmative action argue that in cases in which discrimination has been proven to exist, setting numerical standards may be the only viable way of correcting a demonstrated problem.

The essence of affirmative action is not to compensate actual victims of discrimination but rather to provide opportunities to groups of people who historically have been discriminated against. Individuals are given preference not because of anything done to them but because of something done to their group. Further, the people not chosen do not lose anything they previously had or anything to which they had a unilateral right. In cases in which there is a direct loss, as in layoffs, the courts have been less willing to support numerical quotas. Businesses thus have had to walk a fine line in trying to be fair to all employees while maintaining productive workforces.

Bibliography

Anderson, Terry H. The Pursuit of Fairness: A History of Affirmative Action. New York: Oxford University Press, 2004. Addresses all aspects of the history of affirmative action and equal employment opportunity law and practice in the United States. Includes discussion of the Civil Rights Acts of 1964 and 1991.

Becker, Gary. The Economics of Discrimination. 2d ed. Chicago: University of Chicago Press, 1971. One of the first efforts to apply economic analysis to the issue of discrimination in the labor market. Includes tables and index.

Hall, Kermit L., ed. The Oxford Guide to United States Supreme Court Decisions. New York: Oxford University Press, 1999. Multiauthored collection of essays on more than four hundred significant Court decisions, with supporting glossary and other aids.

Ratner, Ronnie Steinberg, ed. Equal Employment Policy for Women. Philadelphia: Temple University Press, 1980. Collection of readings on policies intended to ensure equal rights in employment for women in the United States, Canada, and Western Europe.

Reich, Michael. Racial Inequality. Princeton, N.J.: Princeton University Press, 1981. Summarizes the extent of the racial inequality that was the backdrop for Supreme Court decisions in the 1980’s. Emphasizes the relationship between discrimination and social unrest. Also examines economic theories of discrimination.

Twomey, David P. Equal Employment Opportunity Law. 3d ed. Belmont, Calif.: Wadsworth, 1994. Summarizes the major legal decisions concerning the interpretation of the Civil Rights Act of 1964 and analyzes the evolution and extension of employment practices. Includes lengthy excerpts from legal opinions.