Title: Johnson v. Transportation Agency, Santa Clara County, California
1Johnson v. Transportation Agency, Santa Clara
County, California
- Genevieve Mackay, Brent Movitz, Kaitlin Powell
2Legal and Social Development of Affirmative Action
- Foundation of Affirmative Action
- 1896 Plessy v. Ferguson
- Facts Plessy refused to sit in a rail carriage
designated for African Americans. He was
convicted of violating a Louisiana statute which
segregated trains. - Rule Segregation was did not violate the 14th
amendment as long as the facilities were
substantially equal. - Rationale Legislation and law could not change
discriminative attitudes in society
3Legal and Social Development of Affirmative Action
- Foundation of Affirmative Action
- 1954 Brown v. Board of Education
- Facts African Americans wanted to attend a white
public school. - Rule The 14th Amendment prohibits public schools
from segregating based on race. - Rationale Separate but equal is a fallacy.
However, because Justice Warren conformed his
holding to the facts of the case, he provided
little insight as to what protections should be
afforded to African Americans or others who face
discrimination.
4Legal and Social Development of Affirmative Action
- Foundation of Affirmative Action
- 1961 Equal Employment Opportunity Commission
(EEOC) - President Kennedy signed an Executive Order which
formed the EEOC. The order promoted affirmative
action to prohibit discrimination based on
race, creed, color, or national origin. - 1963 Equal Pay Act
- Passed by Congress before Kennedys
assassination, the Equal Pay Act stated that
private companies had to pay women the same
compensation as men for performing the same work.
- Lilly Ledbetter Act http//vimeo.com/3097801
5Legal and Social Development of Affirmative Action
- Foundation of Affirmative Action
- 1964 The Civil Rights Act of 1964
- All persons within the jurisdiction of the
United States shall have the same rights . . .
and equal benefit of all laws . . . as are
enjoyed by white citizens. 42 U.S.C.A 1981(a)
(West 2009). After Kennedys assassination,
during Johnsons presidency, in spite of the
protests of Southern Democrats, the U.S. Congress
passed the Civil Rights Act. - Johnson Audio
- What ideal of freedom is our generation
forging, expanding, and renewing? - Domestically? Internationally?
- Does our generation work to widen opportunities
for race/sex-based minorities?
6Legal and Social Development of Affirmative Action
- Foundation of Affirmative Action
- 1964-1967 Johnson and Affirmative Action
- You do not take a person who for years has been
hobbled by chains, and liberate him, bring him up
to the starting line of a race, and then say,
You are free to compete with all the others,
and still justly believe that you have been
completely fair. Thus, it is not enough just to
open the gates of opportunity, all of our
citizens must have the ability to walk through
those gates. - President Johnson speaking at Howard University
after Congress passed the Civil Rights Act of
1964. Urofsky, Affirmative Action on Trial Sex
Discrimination in Johnson v. Santa Clara at 17. - From 1965-1967 Johnson signed three Executive
Orders which required federal contractors to
recruit, hire and promote minorities and women.
7Legal and Social Development of Affirmative Action
- Affirmative Action Challenged in Court
- 1971 Griggs v. Duke Power Co.,
- Facts Duke Power Company required employees to
have a high school diploma and pass a
standardized general intelligence test in order
to be promoted. - Rules Title VII of the Civil Rights Act of 1964
expressly prohibits employment discrimination.
Barriers that favor white employees in employment
decisions must be removed. - Employment actions that appear race neutral, but
have a disparate impact are discriminatory.
8Legal and Social Development of Affirmative Action
- Affirmative Action Challenged in Court
- 1971 Griggs v. Duke Power Co.,
- Rationale Justice Burger reasoned that a high
school diploma and the standardized tests were
not related to job performance. Burger explained
that because African Americans received inferior
schooling they were unlikely to perform as well
on tests as the white workers who received
superior schooling. Burger stated that Congress
has now required that the posture and condition
of the job seeker be taken into account.
9Legal and Social Development of Affirmative Action
- Affirmative Action Challenged in Court
- 1978 Regents of U. of Cal. v. Bakke
- Facts Allan Bakke, a white male, sued the
University of California when it denied him
admission to medical school while it reserved
sixteen out of one hundred spots for minority
students. - Rule An affirmative action plan which includes
the use of quotas unconstitutionally
discriminates against non-minorities under the
14th Amendment and Title VI of the Civil Rights
Act of 1964 (prohibits recipients of federal
funds to discriminate based on race).
10Legal and Social Development of Affirmative Action
- Affirmative Action Challenged in Court
- 1978 Regents of U. of Cal. v. Bakke
- Rationale Foreshadowing difficult affirmative
action decisions, the Court had a plurality
decision. However, Powells opinion has been
relied on in proceeding cases. - Powell stated that affirmative action plans are
allowed under the Equal Protection Clause because
the state has a substantial interest in promoting
educational diversity. However, the universitys
plan was flawed because it used quotas. Justice
Powell explained that diversity that furthers a
compelling state interest encompasses a far
broader array of qualifications than race. By
reserving sixteen spots for candidates based
solely on race, the plan would not necessarily
provide genuine diversity.
11Legal and Social Development of Affirmative Action
- The Affirmative Action Plan Balance reflected in
Bakke - Meg Greenfield, a writer at Newsweek, predicted
the Courts decision. She suggested that
although it seemed to be indecisive, the decision
emphasized the balance needed for a productive
affirmative action plan. - 1) allowed employers to strive for equality in
the workplace caused by past discrimination and - 2) tightened the connection between the steps
taken and the discrimination remedied so as to
prevent unnecessary barriers for non-minorities
12Legal and Social Development of Affirmative Action
- 1979 United Steelworkers of Am. v. Weber
- Facts A white workers sued his employer after
the company accepted an African American into a
training program instead of Weber, even though
Weber had more seniority. - Rule Title VII permitted voluntarily adopted
affirmative action plans in the private sector.
13Legal and Social Development of Affirmative Action
- 1979 United Steelworkers of Am. v. Weber
- Rationale Brennan explained that the companys
plan was within the spirit . . . and intention
of the legislature when it enacted the Civil
Rights Act because the plan would open employment
opportunities for African Americans. - Justice Blackmun, in a concurrence, explained
that Brennan ignored the plain meaning of Title
VII. However, Blackmun explained that companies
which have committed arguable violations of
Title VII by discriminating in the past should be
able to correct their misdeeds through
affirmative action plans.
14Legal and Social Development of Affirmative Action
- 1979 United Steelworkers of Am. v. Weber
- Dissent Justice Rehnquist dissented and relied
on the plain meaning and precedent in which the
Supreme Court had written, Title VII is to
provide an equal opportunity for each applicant
regardless of race, without regard to whether
members of the applicants race are
proportionately represented in the work force.
15Legal and Social Development of Affirmative Action
- The Meaning of Discrimination
- The split in United Steelworkers mirrored the
split in Bakke. On one side, the liberal
Justices aligned with the premise that
race-conscious policies could remedy past
discrimination. On the other side, the
conservative Justices clung to the value that in
order to have a society free from discrimination,
the laws of society must mandate that no type of
discrimination is acceptable.
16Legal and Social Development of Affirmative Action
- 1980 Fullilove v. Klutznick
- Facts The Public Works Employment Act provided
that in order to receive federal funds for public
works, the recipient, for example a city or
state, must award 10 of the funds to minority
business enterprises (MBEs). - Rule Congress can pass legislation with the
goal of correcting past economic disparities
among minorities without violating the 14th
Amendment. - Rationale The Court, once again in a plurality
decision, reasoned that remedial programs allowed
minorities to be lifted to a level in which they
could effectively participate.
17Mr. Devlin Schoop, Partner at Laner Muchin
Johnson v. Santa Clara
- Graduate of the University of Illinois at Chicago
and the University of Illinois Law Review. - Previous Experience
- Worked as a judicial clerk to Judge Manning of
the United States District Court for the Northern
District of Illinois. - Lawyer at large Chicago-based firm where he
specialized in complex commercial litigation and
employment and civil rights litigation. - Mr. Schoop became a partner at Laner Muchin in
2008 and represents employers in employment
discrimination, wrongful discharge, employment,
civil rights litigation. - Mr. Schoop is a member of the American Bar
Association, the Seventh Circuit Bar and the
Federal Bar Association. He is an Associate
Articles Editor for the Federal Civil Practice
Section Council of the Illinois State Bar
Association and has authored several articles
regarding civil practice in the various federal
courts within Illinois. Mr. Schoop authored the
chapter on age discrimination in the 2007 edition
of the Illinois Institute of Continuing Legal
Educations Employment Discrimination Handbook.
18Nature of the Controversy
Johnson v. Santa Clara
- Diane Joyce and Paul Johnson both were contending
for road dispatcher at Santa Clara Transportation
Agency. - Diane Joyce rebel rousing, skirt-wearing
person - Learned to stand up for her rights.
- Paul Johnson good ol boy
- Felt he deserved the job and she just got it for
her gender. - On the road crew different standards
- Joyce never fit in
- Fought to get the same opportunities as men.
19Affirmative Action - Santa Clara Plan
Johnson v. Santa Clara
- Santa Clara was only 3.4 Black, although the
Hispanic population was 17.7 and the Asian
population 7.7. - While women were 36.4 of the Santa Clara labor
force, only 22.4 of Santa Clara county employees
were women. - Most held low level positions conventionally held
by women
20Affirmative Action - Santa Clara Plan
Johnson v. Santa Clara
- Santa Clara had many women in politics
- May explain support of Affirmative Action plan
- hiring, training, and promotion of minorities
and womenin all major job classifications where
they are underrepresented with a long-term goal
of having a work-force with the same Agency labor
force composition of minorities and women as in
the area labor force. - Idealistic long-term goals, but realistic
short-term objectives. - Achievable goals v. implementing quotas
21Trial Court
Johnson v. Santa Clara
- Diane Joyce very apprehensive. Everyone else
confident. - Johnson and Attorney thought clear-cut
discrimination case - County Attorney equally certain acted in
discretion Difficult to explain why need
affirmative action plan without recognizing past
injustices. - Judge Ignam?county affirmative action plan did
not meet Weber standards. - Narrow ruling Affirmative Action plan remains in
tact with minor changes.
22Appellate Court
Johnson v. Santa Clara
- Placed on short calendar at first, then given
more time to argue. - Handed down decision that Judge Ignam construed
Title VII and Weber too narrowly and the Santa
Clara Countys affirmative action plan met the
Weber requirements. - Paul Johnson already had Diane Joyces position
Joyce in South Yard - Johnson felt frustrated
- Inquires at public interest law firms
23Affirmative Action since Johnson
- The Supreme Court Decision
- Justice Brennan delivered the opinion of the
court in which justices Marshall, Blackmun,
Powell, and Stevens joined. The court held - The Agency appropriately took into account
Joyces sex as one factor in determining that she
should be promoted. The Agengys Plan represents
a moderate, flexible, case-by-case approach to
effecting a gradual improvement in the
representation of minorities and women in the
Agencys work force, and is fully consistent with
Title VII.
24Affirmative Action since Johnson
- Who Bears the Burden of Proof that the Agencys
plan violates Title VII? - Once Johnson established a prima facie case that
race or sex had been taken into account in the
Agencys employment decision, the burden shifts
to the Agency to articulate a nondiscriminatory
rationale for that decision (ie an affirmative
action plan). Once the Agency had done so the
burden shifted back to Johnson to prove that the
plan was invalid and that the Agencys
justification was pretextual.
25Affirmative Action since Johnson
- This burden shifting means that the Court had to
determine two things - 1. Was the Agencys affirmative action plan
legal or did it violate Title VII? - 2. Part 1 - Was the employment decision made
pursuant to a plan prompted by concerns similar
to those in the Weber case? Part 2 - Was
the effect of the plan on males and nonminorities
comparable to the effect of the plan in that case?
26Affirmative Action since Johnson
- The Rule from Weber . . .
- In determining the legality of the Agencys plan
under Title VII the Court used the standard set
forth in the Weber case. This rule stated that
the plan must be designed to eliminate manifest
racial imbalances in traditionally segregated job
categories. - The Court further determined that to meet this
standard the employer must only point to a
conspicuous imbalance in traditionally segregated
job categories and not meet a prima facie case
standard. - Taken together this decision was grounded in the
understanding that voluntary action on the part
of the employer is crucial to furthering the
purpose of Title VII and the idea that Title VII
should not be read to thwart such efforts.
27Affirmative Action since Johnson
- Question 2, Part 1 . . . .
- Was the employment decision made pursuant to a
plan prompted by concerns similar to those in the
Weber case? - Here the Court determined that the plan was
developed to correct a manifold imbalance based
on the fact that women did not hold a single
position in this employment category at the time
the decision was made to hire Joyce.
Additionally the court considered the facts that
the Agencys plan was temporary and flexible with
a long term goal supported by short term goals
aimed at eliminating rather than maintaining
imbalances in the work force.
28Affirmative Action since Johnson
- Question 2, Part 2 . . . .
- Was the effect of the plan on males and
nonminorities comparable to the effect of the
plan in the Weber case? - Here,as in Weber, the Court asked whether the
Agencys plan unnecessarily trammeled the rights
of male employees or created an absolute bar to
their advancement. It determined that the plan
did NOT do so because it did NOT . . . - Set aside positions for women. The plan instead
specifically stated that the goals established
should not be construed as quotas that must be
met. Instead the plan merely authorized
consideration of affirmative action concerns when
evaluating qualified applicants.
29Affirmative Action since Johnson
- The Last Consideration of the Court . . . .
- At the end of the decision the Court noted that
it should be mindful of the Court and Congress
consistent emphasis on the value of voluntary
efforts to further the objectives of the law.
This was brought up earlier in the decision to
support not using the prima facie standard for
the employer to develop an affirmative action
plan as well. It is laid out in the final
decision statement of the Court as well for
emphasis.
30Affirmative Action since Johnson
- Proposition 209
- California passed which prohibits racial,
ethnic, and gender preferences in public
education, employment, and contracting. Allows
economic status to be considered. Michigan has a
similar law. - California Regents revoke affirmative action plan
31Affirmative Action since Johnson
- 2003 Grutter v. Bollinger
- Facts A non-minority student sued the University
of Michigans law school after she was rejected. - Rule Diversity in education is a compelling
state interest and a schools affirmative action
plan that does not use quotas is not
unconstitutional under the 14th Amendment, nor
does it violate Title VI. - Rationale OConnor relied heavily on Powells
opinion in Bakke. She explained that the law
schools affirmative action plan narrowly
tailors the use of race in admissions
decisions to further a compelling state interest
in obtaining the educational benefits that flow
from a diverse student body.
32Affirmative Action since Johnson
- 2003 Grutter v. Bollinger
- Dissent Chief Justice Rehnquist dissented and
claimed that the law schools system was a thinly
veiled quota system. He claimed that the
admissions process was not narrowly tailored to
the goal of complete diversity, not just racial
diversity. Rehnquist used actual application and
admission data from the law school to show a
direct correlation between the amount of a
minority that applied and the amount that was
accepted. For example, in 1995, 9.7 of the
applicant pool was African American and 9.4 of
the admitted class was African American. -
-
33Affirmative Action since Johnson
- 2003 Grutter v. Bollinger
- Justice Thomas, an African American, states that
the U.S. Constitution abhors classifications
based on race, not only because those
classifications can harm favored races or are
based on illegitimate motives, but also because
every time the government places citizens on
racial registers and makes race relevant to the
provision of burdens or benefits, it demeans us
all. Thomas quoted Frederick Douglass who said,
And if the negro cannot stand on his own legs,
let him fall. Your interference is doing him
positive injury. What I ask for the negro is not
benevolence . . . but simply justice. Id. at
350.
34Affirmative Action since Johnson
- 2003 (same day as Grutter) Gratz v. Bollinger
- Facts Jennifer Gratz, a Caucasian, applied to
the University of Michigan undergraduate school
and was rejected. The University of Michigans
undergraduate admissions department used a
selection index. Applicants could aggregate up
to 150 points depending on factors including,
GPA, in-state residency, alumni relationship,
personal essay, academic performance, etc. A
minority applicant would receive twenty points
automatically, whereas other diverse qualities,
such as geographic diversity or leadership and
service were capped at five points. If a student
received one hundred points he would be admitted.
35Affirmative Action since Johnson
- 2003 (same day as Grutter) Gratz v. Bollinger
- Rule An affirmative action plan for a
university must be narrowly tailored to the
legitimate end of educational diversity. - Quotas are not narrowly tailored to the
legitimate end of educational diversity.
36Affirmative Action since Johnson
- 2003 (same day as Grutter) Gratz v. Bollinger
- Rationale Chief Justice Rehnquist wrote the
opinion of the Court and relied heavily on
Powells rationale in Bakke. Rehnquist explained
that no single characteristic automatically
ensured a specific and identifiable contribution
to a universitys diversity. Rehnquist
emphasized the importance of considering each .
. . individual, assessing all of his qualities
. . . and . . . evaluating that individuals
ability to contribute to the unique setting of
higher education. Rehnquist found that the
University had created a situation in which
virtually every minimally qualified . . .
minority applicant would be accepted regardless
of his individual characteristics.
37Affirmative Action since Johnson
- 2009 Ricci v. DeStefano
- Facts The city of New Haven, Connecticut, used a
job-related test to decide who would be
considered for promotions among its firefighters.
The results of the test revealed that whites
outperformed their Hispanic and African American
counterparts. Hence, if the city certified the
results, it would promote a disproportionate
amount of white firefighters. The city feared
that the test had created a disparate impact on
African Americans by discriminating against them
and thusly violated Title VII. Therefore, the
city did not certify the results.
38Affirmative Action since Johnson
- 2009 Ricci v. DeStefano
- Rules
- Disparate Treatment An employer cannot
discriminate based on race. - Disparate Impact Employment actions that appear
race neutral, but have a disparate impact are
discriminatory. - An employer has a defense to a disparate impact
claim if it can show that the practice is job
related for the position in question and
consistent with business necessity.
Nonetheless, the plaintiff can prevail if he
shows that there is an alternative practice that
meets the employers needs and has less of a
disparate impact.
39Affirmative Action since Johnson
- 2009 Ricci v. DeStefano
- Strong Basis in Evidence Standard
- An employer has to show that it conduct which
creates a disparate impact is based on more than
a fear of litigation. - Rationale Not certifying the test was
discrimination because it was a decision based on
race. The city did not offer any reasonable
alternatives to the test. The firefighters took
the test at an expense to themselves.
40Affirmative Action since Johnson
- Dissent Justice Ginsburg disagreed with the
majoritys premise that the test violated Title
VIIs disparate treatment provision. Ginsburg
recognized that the Court historically has held
that the because of race language in Title VII,
when interpreted with the spirit of the Civil
Rights Acts, will not necessarily be used to
protect non-minorities from discrimination. -
- Ricci video
- Obama speaks on affirmative action
41Resume Activity
Johnson v. Santa Clara
42Further Questions
- Does the presence of the recession cause
governments to unnecessarily trammel the rights
of private contractors bidding for construction
jobs? - Should it be unconstitutional to apply
affirmative action plans to women applying to law
school?