Question

The transportation ageney of a California county unilaterally created a voluntary affirmative action plan for the hiring and promotion of employees. One provision of the plan provided that, in making promotions to positions within a traditionally segregated job classification in which women have been significantly underrepresented, the agency was authorized to consider as one factor the sex of a qualified applicant. The agency noted in its affirmative action plan that women were represented in numbers far lower than their proportion of the county labor force in five of seven job categories. The stated goal of the affirmative action plan was to achieve a statistically measurable yearly improvement in the hiring, training, and promotion of minorities and women in all major job classifications where they were underrepresented. The long-term goal was to attain a work force whose composition reflected the proportion of minorities and women in the area relevant labor market. When a vacancy arose in the agency for promotion to road dispatcher, twelve county employees applied, and nine of them were deemed qualified and were interviewed. At the conclusion of the interviews, seven employees were certified as eligible for selection by the appointing authority. Two of the seven scored 75 and were tied for second, and a female applicant scored 73 and was ranked third. The director of the ageney, who was authorized to choose any of the seven candidates, chose not to follow a second interviewing board's recommendation to promote one of the second-ranked applicants, a male, but instead opted to select the only female candidate, who was the third-ranked applicant. In doing so, the director had taken into account the candidates' qualifications, their test seores, their expertise, and their backgrounds, as well as the affirmative action goal. Upon hearing that the female candidate had been selected over him, the male applicant who had been recommended by the board filed a complaint with the EEOC, claiming that he had been denied promotion in violation of Title VII on the basis of his sex.

a. Under Title VII was the county impermissibly using sex in its selection procedure? Why or why not?

b. Under the Fourteenth Amendment was the county impermissibly using sex in its selection procedure? Why or why not?

Answer 1

a. In this case, an affirmative action plan was created to increase women representation in workforce as they were under represented in many job areas. Hence they decided to use sex as one of several factors to hire and promote people. The plan has a long term goal to increase woman diversity. As per Title VII of Civil Rights Act, discrimination based on sex is prohibited. However, affirmative action plans have been allowed under certain circumstances. The affirmative action plan is held valid only when certain criterias are satisfied. Such as the plan should be to improve the traditional imbalances, that they should not violate the interests of male employee and that the plan must be temporary.

A Supreme Court Case law addresses this concern. In Johnson v/s Transportation agency, Johnson was supposed to be hired for promotion and he scored better. However, due to the affirmative action plan of the company to hire more women, a female candidate was hired. In this case, Supreme court specified that affirmative action plan was valid as it satisfied the criterias mentioned. It was to improve traditional imbalances, it did not trample Johnson's rights as he would not have known 100% whether he will receive the promotion. Also since the plan mentioned that attaining workforce is key criteria, it shows it is a temporary plan.

In our case as well, it can be specified that imbalance exists due to less number of women in the jobs compared to number of women in labor market. It can also be specified that the male candidate's rights are not violated as sex was considered as one of the factors to hire along with other factors such as qualification. Thirdly since they specify the long term goal is to attain women balance, it can be said as temporary. Hence here it can be mentioned that it used sex as one of the several factors in selection and hence does not violate Title VII as per the past Supreme Court ruling. It did not hire blindly any women to fulfill quotas.

b. The 14th amendment states that a State may not deny to any person equal protection of the laws. In this scenario, there is no proper guidance based on prior case laws whether or not such affirmative action plan is violative of the law or not. Different courts have taken different stand over this matter. Certain courts agree that intermediate scrutiny must be applied to gender based affirmative action. In other cases such as in Adarand case, strict scrutiny was invited meaning that racial discrimination as per affirmative action plan shall be allowed only when Government has most compelling interest. That past discrimination has been practised by the government and the action plan is to remedy the discrimination in a timely manner. However no guideline was laid for gender based affirmative action plan.

Off late, Courts are increasingly going by the strict scrutiny mode. In that case, it can be held that gender based affirmative action plan violates the equal opportunity of 14th amendment. However, if intermediate scrutiny is observed, then affirmative action plan can be upheld considering the long discrimination against women. It can be taken as a government objective to give women preferential treatment and then it shall not be violative of 14th amendment. In intermediate scrutiny, it is enough to show that past discrimination existed not necessarily done by the government itself. Hence if this stance is adopted then sex can be used as part of affirmative action plan and not violative of 14th amendment.