Affirmative Action on Trial: Sex Discrimination in Johnson vs. Santa Clara

Affirmative Action on Trial: Sex Discrimination in Johnson vs. Santa Clara

by Melvin I. Urofsky

Affirmative action continues to be one of the most hotly contested issues in America. Volatile and divisive, the debates over its legitimacy have inspired a number of "reverse discrimination" suits in the federal courts. Like the landmark 1978 Bakke decision, most of these have focused on preferential treatment given racial minorities. In Johnson v. SantaSee more details below


Affirmative action continues to be one of the most hotly contested issues in America. Volatile and divisive, the debates over its legitimacy have inspired a number of "reverse discrimination" suits in the federal courts. Like the landmark 1978 Bakke decision, most of these have focused on preferential treatment given racial minorities. In Johnson v. Santa Clara, however, the central issue was gender, not race discrimination, and the Supreme Court's decision in that case marked a resounding victory for women in the work force.

Johnson v. Santa Clara involved two people who in 1980 competed for a dispatcher position with the transportation department of Santa Clara County, California. Paul Johnson had more experience and slightly higher test scores, but Diane Joyce was given the job based on affirmative action. An irate Johnson sued the county and won, only to have the decision reversed in appellate court. That reversal was subsequently upheld in the Supreme Court's 1987 decision, reaffirming that it was legitimate for employers to consider gender in hiring.

Preeminent legal historian Melvin Urofsky proves an exemplary guide through the complexities of this case as he takes us from the workplace through the various levels of our federal court system. Balancing the particulars of the case with an overview of constitutional law and judicial process, he creates a model legal history that is both appealing and enlightening for the non-scholar. Urofsky is especially good at highlighting the fundamental human drama of this case and shows how Johnson and Joyce were simply ordinary people, each with valid reasons for their actions, but both ultimately caught up in legal and social issues that reached well beyond their own lives.

Affirmative Action on Trial pointedly addresses the issue of sex discrimination and the broader controversy over the place of affirmative action in American society. The latter continues to generate headlines, like those that followed the 1996 Supreme Court decision to let stand a lower-court ruling that race cannot be used as a determination for admission to academic programs. More recently, several states have even taken steps to end affirmative action altogether. While it's hard to tell how such actions will ultimately impact affirmative action, there's no question that the rulings in cases like Johnson v. Santa Clara will continue to guide and influence the debates both inside and outside the courtroom.

This book is part of the Landmark Law Cases and American Society series.

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Editorial Reviews

Donald W. Crowley
Melvin Urofsky has written an extremely interesting book in the tradition of Anthony Lewis' GIDEON'S TRUMPET. However, befitting the ambivalence with which most Americans view affirmative action, heroes here are much harder to discern. Urofsky�s book traces the stories of Diane Joyce and Paul Johnson, who fight out the dilemma�s of affirmative action through the judicial process. By weaving their personal stories together with the larger conflict over affirmative action Urofsky produces a highly readable case study that should be a very valuable supplementary work for undergraduate courses in judicial process or law and society. Urofsky�s book focuses on the events that culminated in the Supreme Court decision in JOHNSON v. SANTA CLARA COUNTY. This case is mentioned in many texts as a leading decision favoring affirmative action for women. The book begins with Paul Johnson and Diane Joyce seeking to a dispatcher�s job in the Santa Clara County highway department. The dispatcher�s job, along with the significant pay increase, was a goal that both of them had sought for quite a while. It is easy to be sympathetic to both of the principles in this dispute. When the road dispatcher�s job opened in 1979 Paul Johnson had worked for the highway department for twelve years and had 20 years of previous experience in the construction industry. Moreover, he had been performing the specific duties of a road dispatcher on an interim basis. He was apparently well liked, one of the boys, as Urofsky describes it. He certainly considered himself the most qualified person for the job. Diane Joyce�s case is no less compelling. A widow with four children she began working in the Santa Clara highway department as a senior account clerk in 1972. In 1974 she applied for a dispatcher�s job but was told that she needed road work experience. After taking evening courses on road maintenance she eventually obtained a job with the road maintenance crew. On the maintenance crew her job was tinged with incidents of gender discrimination, but she persevered and was respected enough to be elected as shop steward for the local chapter of the Service Employee�s International Union. Interestingly, her role with the union added another point of contention since Johnson was widely regarded as anti-union. When a dispatcher�s job opened again in 1979 both Johnson and Joyce applied. After interviews seven of the twelve applicants were deemed qualified. Johnson placed second and Joyce fourth separated by two points on the rating scale. (I�ve always wondered what happened to the person ranked first but unfortunately Urofsky�s account never says). According to the County�s hiring rules they could hire any of the seven people deemed qualified. Initially, Johnson was informed by supervisors that they had recommended him and the job would be his. They were wrong. After hearing rumors that Johnson was going to be hired, Diane Joyce called the county�s affirmative action officer. The affirmative action office suggested to the Director of the Transportation Agency that it would be desirable to hire a clearly qualified woman for a position that had never been held by a woman. Indeed of the 238 positions that the Agency classified as "skilled craft jobs" none were held by women. By deciding to hire Joyce because she was a woman the conditions for a "reverse discrimination" suit seemed to be set. To Paul Johnson the County had clearly violated the merit principle. He was convinced that he was the most qualified and would have gotten the job except that the Agency wanted to hire a woman. To Diane Joyce, this was hardly the way to look at the issue. She knew she was qualified and it was definitely past time for a woman to occupy one of these positions. Her joy at getting the job was soon tempered by the knowledge that Paul Johnson had filed suit under Title VII of the 1964 Civil Rights Act. This is the story Urofsky tells in the first chapter and it is certainly an important story. In the next two chapters Urofsky provides a brief but competent review of the arguments for and against affirmative action along with an overview of the judicial development of the law under Title VII. By the fourth chapter we are ready to return to Johnson�s case against the Santa Clara County. What is particularly interesting is that despite the unsettled nature of legal doctrine dealing with affirmative action in the eighties, both sides felt they had an easy case. Johnson�s lawyer thought that it was an "open-and-shut case of discrimination under Title VII" (p.54), while the County�s lawyers thought it was "such a stupid case" that it would never go to trial (p. 54). Again, both sides were wrong. Urofsky�s study help to illustrate the tension between plain meaning approaches and more purposive approaches to statutory interpretation. The case also provides an opportunity to ponder what kinds of background facts count as relevant in such a situation. To Johnson�s lawyer the only really relevant information was that Johnson ranked higher and the Transportation Agency acknowledged that the recommendations of the supervisors was overridden because the Agency felt the need to promote women. Thus Johnson was denied the job on the basis of gender which therefore violated Title VII. To Joyce and the County�s lawyers the most important facts were that Joyce was clearly qualified, the county�s hiring policy said they could hire any of the top seven, and that this was a great opportunity to address an obvious imbalance. The case also points to some of the anomalies of affirmative action. If the County had been found guilty of past discrimination then not only would such action clearly have been justified, it probably would have been Court ordered. However, the County had not been held to have engaged in past discrimination against women nor were they willing to admit to discrimination since this might lead to future suits. Still, women were clearly underrepresented in skill positions and voluntary action to ease this discrepancy seemed a desirable social goal. Central to this dispute is the extent to which the existence of a statistical disparity ought to count as evidence of discrimination. This issue remains as one of the great concerns of the affirmative action debate. In the rest of the book Urofsky skillfully guides us through the twists and turns of the judicial system. We learn that Johnson wins in the Federal District Court primarily because the District Court Judge, following a fairly narrow interpretation of UNITED STEEL WORKERS OF AMERICAN v. WEBER, believed that the County�s affirmative action plan was too open ended, since it didn�t have a clear termination date, and looked too much like a quota. Over two years later this decision was reversed by the Ninth Circuit, which argued that the District Court had read Title VII and WEBER too narrowly and that the County�s affirmative action plan was an acceptable means "to remedy longstanding imbalances in the work force." (p.87). By this point the case was no longer really about Paul Johnson and Diane Joyce. Indeed an increasingly bitter Paul Johnson retired after the Ninth Circuit�s decision. Urofsky describes how Johnson�s case is taken over by a conservative public interest group interested in "reverse discrimination" cases and the corresponding interest of civil rights groups in defending affirmative action. He also provides us with a nice insider�s view as the competing lawyers prepare their arguments for the Supreme Court. Throughout, Urofsky�s account is enhanced by extensive interviews with Johnson, Joyce, their lawyers and other participants. The insider story is also aided by the access the author was afforded to Justice Brennan�s office files which provides us with a good look at how the Supreme Court handled the case and crafted the majority opinion. In March of 1987, seven years after Diane Joyce first called the affirmative action office, she finally won in the Supreme Court. Justice Brennan wrote the majority opinion stating that the use of affirmative action plans to alleviate statistical imbalances did not violate Title VII. Arguably this victory marked the last major triumph for affirmative action in the Supreme Court. As Urofsky writes in the last chapter and in a postscript, the Court�s support for affirmative action clearly began to wane after the Johnson decision. In WARD�S COVE PACKING v. ANTONIO (1989) and in RICHMOND v. J.A. CROSON (1989) a new Court majority abandoned the view that statistical disparities by themselves constituted grounds to demonstrate past discrimination. Both decisions clearly indicated the Court�s growing skepticism towards the uses of affirmative action as a way to attack the continuing existence of inequality. Urofsky�s account of Johnson�s and Joyce�s battle for the job of dispatcher with the Santa Clara Transportation Agency is well worth reading. Admittedly, scholars knowledgeable about judicial policy making and the conflict over affirmative action are unlikely to discover new insights or analysis from this work. Nor does Urofsky spend much time on the intricacies of statutory or constitutional analysis. Still, this wasn�t Urofsky�s goal. As he states it, we can better understand such issues "if we can place it in a human context." (p. ix) this he clearly succeeds in doing. References Lewis, Anthony. 1964. GIDEON�S TRUMPET. New York: Random House. Cases: JOHNSON V. TRANSPORTATION AGENCY, SANTA CLARA COUNTY 480 U.S. 616 (1987). RICHMOND v. J. A. CROSON, 488 U.S. 469 (1989). UNITED STEEL WORKERS OF AMERICA v. WEBER, 443 U.S. 977 (1979). WARDS COVE PACKING, v. ANTONIO, 490 U.S. 642, (1989).

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Product Details

University Press of Kansas
Publication date:
Landmark Law Cases and American Society Ser.
Product dimensions:
5.80(w) x 8.85(h) x 0.77(d)

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