Balancing Act

By Richard Stengel

After four gritty years working on the road for the Santa Clara County transportation agency -- patching holes, shoveling asphalt, opening culverts -- Diane Joyce applied in 1980 for a less strenuous desk job as a road dispatcher. At the time not one of the California agency's 238 skilled positions was held by a woman. Joyce knew, however, that two years earlier the county had enacted a voluntary affirmative-action policy designed to correct that imbalance.

Paul Johnson, a white male who had worked for the agency for 13 years, also applied. He and Joyce were among the seven applicants who scored above 70 on the oral exam and were considered qualified. Joyce scored 73, Johnson 75. The local supervisor picked Johnson, but the county's affirmative-action coordinator recommended Joyce. When she got the job, Johnson got a lawyer. Like Allen Bakke and Brian Weber and countless other white males since the advent of affirmative-action programs some 20 years ago, Johnson claimed he was a victim of reverse discrimination.

In its most significant affirmative-action decision since the murky resolution of Bakke's case against the University of California in 1978, the Supreme Court ruled 6 to 3 last week that it was permissible for the Santa Clara agency to take sex and race into account in employment decisions. "I'm very proud," said Joyce. "I've waited a long time for this." Said Johnson, who is now retired and lives in Washington State: "I'm shocked and disappointed. A ruling like this will cause prejudice in people who have never been prejudiced before."

% After nearly a decade of on-the-one-hand, on-the-other-hand rulings, last week's decision provides the clearest declaration yet on the role of affirmative action as a remedy for inequality in the American workplace. For the first time the Supreme Court explicitly ruled that women as well as blacks and other minorities can receive preferential treatment. Even more significantly, the decision endorsed a voluntary affirmative-action plan in a situation where there was no proven history of discrimination; all that was necessary, wrote Justice William Brennan for the majority, was evidence of a "manifest imbalance" in the number of women or minorities holding the positions in question.

The decision affects the most universal of employment situations in America: workplaces where it is hard to prove past discrimination but where there is a statistical shortage of women and minorities in certain positions. It is the strongest link in a chain of decisions suggesting that voluntary affirmative- action programs are a desirable way to right such imbalances.

The ruling, predictably enough, delighted civil rights and women's groups while angering the Reagan Administration and others who have been waging an ardent crusade to roll back affirmative action. Many business groups applauded the decision because it helped clarify the legal status of voluntary programs and is likely to discourage future reverse-discrimination actions.

Johnson's suit was based on Title VII of the 1964 Civil Rights Act, which makes it unlawful for an employer "to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee because of such individual's race, color, religion, sex or national origin." Brennan's opinion was guided by the court's 1979 Weber ruling upholding an apprentice program in a Kaiser Aluminum plant in Gramercy, La., that reserved 50% of the slots for blacks. Brennan concluded that the Santa Clara plan was "consistent with Title VII's purpose of eliminating the effects of employment discrimination." He wrote, "Given the obvious imbalance in the skilled craft division and given the agency's commitment to eliminating such imbalances . . . it was appropriate to consider as one fact the sex of Ms. Joyce in making its decision."

The Santa Clara program, which set a temporary "goal" of filling 36% of its skilled jobs with women, was an attempt to achieve a "work force that mirrored in its major job classification the percentage of women in the area < labor market." Brennan argued that the plan, like that in Weber, did not "unnecessarily trammel" the interests of whites by creating an absolute bar to their employment.

In a blistering and forceful dissent, Justice Antonin Scalia wrote that the decision "effectively requires employers, public as well as private, to engage in intentional discrimination on the basis of race or sex." He was particularly critical of the decision to permit statistical imbalances to be criteria for justifying an affirmative-action program rather than requiring there be evidence of past discrimination. "This is an enormous expansion, undertaken without the slightest justification or analysis."

The ruling, Scalia contended, turns Title VII on its head. "The court today completes the process of converting ((Title VII)) from a guarantee that race or sex will not be the basis for employment determinations, to a guarantee that it often will. Ever so subtly . . . we effectively replace the goal of a discrimination-free society with the quite incompatible goal of proportionate representation by race and by sex in the workplace."

After hearing of the court's decision, President Reagan, who has long maintained that affirmative action is immoral and illegal, said simply, "Obviously, I disagree." From the outset, the Administration has vigorously sought to reverse the course of affirmative action, insisting that hiring goals are the same as illegal quotas. The court has now completely rebuffed that effort. Some observers suggest that the Administration's heavy- handed attempts to dismantle affirmative action may have backfired and pushed the court to assert its position more forcefully.

The difficult and divisive national debate over affirmative action arises from a philosophical tension between two basic American values: the protection of individual rights and the quest for social equality. Opponents of affirmative action argue that each individual has the right to be judged on merit. Setting special standards for blacks or women, they maintain, is demeaning and ultimately destructive, both to society and to those who are the intended beneficiaries. Some prominent blacks and women agree, on the grounds that affirmative action is condescending and leads its beneficiaries to call their own achievements into question.

Proponents of affirmative action contend that equality for all can be achieved only through temporary preferences given to blacks, women and other groups that have historically suffered discrimination. It is perverse, they argue, to use civil rights laws to block the very goals -- better opportunities for blacks and women -- those laws were intended to further.

Preferential treatment in employment was first mandated by Lyndon Johnson in a 1965 presidential order stating that companies doing business with the Government were required to take "affirmative action" to hire women and minorities. Thousands of private companies followed suit, many of them on the grounds that it was good for business. Since then, affirmative action has helped change the way America does business: the Bureau of Labor Statistics projects that between 1985 and 1995, blacks and women will account for three- fourths of all labor-force growth.

The Johnson decision, employers believe, protects their affirmative-action programs from reverse-discrimination suits. "This decision wipes away the last lingering doubts," says James McDaniel, manager of affirmative action at E.I. duPont. "Employers can now statistically correct imbalances without the fear of frivolous challenges." In the past, employers with affirmative-action programs had to worry about disgruntled whites as well as excluded minorities. Notes John Jacob, president of the National Urban League: "I have had companies say to me that they intended to go ahead with affirmative-action programs but were concerned about the mounting litigation brought by white males." While the ruling insulates business from reverse-discrimination suits, it may make them more vulnerable to discrimination claims on the part of women and minorities.

Many women judged the decision to be properly tough. "I've always said that affirmative action has to hurt a little," says Stanford Law Professor Barbara Babcock. "This is a decision that hurts." Women's groups saw the ruling as a way of helping them penetrate job markets traditionally sealed off from women. Says Claudia Withers, a staff attorney at the Women's Legal Defense Fund in Washington: "As women see opportunities open, they will apply for jobs where before they felt unwelcome." The decision appears particularly relevant to jobs that require no specialized training -- blue-collar employment where most applicants, whether female, black, white or male, are generally on an equal footing.

Conservatives regarded the decision as another example of the state's infringing on individual liberties and a retreat from the goal of a truly gender-neutral, color-blind society. Michael McDonald, president of the conservative Washington Legal Foundation, says the plan endorsed by the court "was social engineering on a scale I have yet to see equaled elsewhere. Every special-interest group was awarded the right to a job." Some saw the decision as camouflage for quotas. "It is exactly what civil rights law was designed to free us of," declared Nathan Perlmutter, executive director of the Anti-Defamation League. "I consider performance based on race, color, creed or sex, in the absence of evidence that the person has been discriminated against, to be a form of well-intended but nonetheless mischievous discrimination."

Not all businessmen regarded the ruling as a benison. Many employers feel handcuffed by affirmative action and fret that the latest ruling establishes an even more difficult standard for them to follow. "The Supreme Court has changed the ground rules," says Richard Bradley, vice president of the Merchants and Manufacturers Association, a Los Angeles-based organization with 3,206 members. "Now they're saying unless you lean toward a protected category, you may be committing a discriminatory act."

The Johnson case will almost certainly result in more affirmative-action programs on the part of employers. Julius Chambers, director of the NAACP Legal Defense Fund, suggests the ruling will "invite" organizations pushing for affirmative action for women and minorities to persuade employers to enact plans to redress any imbalances in their work force. Says Chambers: "There is less basis for an employer responding that it can't because of the uncertainty of the law." Now, after years of judicial uncertainty on affirmative action, future court decisions are likely to concern the limits on specific plans rather than the validity of the concept.

CHART: TEXT NOT AVAILABLE

CREDIT: TIME Chart by Joe Lertola

CAPTION: WHO DOES WHAT

DESCRIPTION: Percent of total work force who are female or black in fourteen work categories.

With reporting by Anne Constable/Washington, with other bureaus