Johnson v. Transportation Agency

FLETCHER, Circuit Judge:

Plaintiff alleges that he was denied promotion on account of his sex, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The district court rejected defendant’s contention that it acted lawfully pursuant to a bona fide affirmative action plan. The district court granted retroactive promotion and pay and enjoined defendant from further discrimination against plaintiff.

We conclude that the district court misapprehended the requirements for a bona fide affirmative action plan. Guided by United Steelworkers of America, AFL-CIO-CLC v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979), we hold that defendant’s affirmative action plan was valid and that defendant acted lawfully pursuant to the plan. We reverse.

I

Defendant is the Santa Clara County Transportation Agency (Agency). Established and maintained by the County of Santa Clara, California, the Agency is an employer within the meaning of Title VII, 42 U.S.C. § 2000e(b).

Plaintiff Paul E. Johnson has been employed by the Agency since 1967. For eleven years, he worked as a road yard clerk. In 1979, when Johnson was a road maintenance worker, the Agency announced an opening for a road dispatcher. A dispatcher allocates crews, equipment, and materials among the various road maintenance jobs in Santa Clara County. Johnson had experience as a temporary road dispatcher for the Agency, as well as with a private company before his employment by the county.

Johnson and eight others applied for the dispatcher position. Seven applicants achieved the required 70 or above on an examination given by a two-member oral board. Johnson tied for second with a score of 75. Diane D. Joyce, the only female applicant, placed fourth on the examination with the third highest score of 72.5, rounded to 73. Like Johnson, Joyce was a long-time Agency employee with considerable experience as a road yard clerk, a road maintenance worker, and a part-time road dispatcher.

Employees of the Agency’s Road Operations Division conducted a second, departmental oral board for the seven applicants who successfully completed the first board. The examiners unanimously recommended Johnson for the dispatcher position. Meanwhile, Joyce informed the County Women’s Coordinator that she was ranked fourth on the dispatcher eligibility list. The Women’s Coordinator informed the Agency’s Affirmative Action Coordinator that Joyce had applied. The Affirmative Action Coordinator recommended to the Agency Director that Joyce be appointed. The Director appointed Joyce to the position of road dispatcher.

The Director promoted Joyce under the Agency’s voluntary, non-collectively bargained, affirmative action plan dated December 18, 1978 (plan). The plan did not set quotas in any job classification. Rather, the plan established a long-range goal to attain a work force whose composition in all major job classifications approximated the distribution of women, minorities, and handicapped persons in the County labor market. The plan specified no past discriminatory Agency practices; it simply stated that women had been traditionally underrepresented in the relevant job classifications and recognized an extreme difficulty in increasing “significantly the representation of women in certain of those technical and skilled-craft jobs.” In 1978, both of the road dispatchers were men. In fact, not one of the Agency’s 238 skilled craft positions was held by a woman.

Johnson complained to the EEOC. He received a right-to-sue letter from the EEOC in March 1981 and sued the Agency. Johnson challenged the Agency’s failure to promote him to the position of road dispatcher, in favor of a less qualified woman, solely as a violation of Title VII.¹

Neither party denied that the examination process was fair and in accord with Merit System Rules derived from the county charter. Based upon the examination results and the departmental interview, the district court found that Johnson was better qualified for the dispatcher position than Joyce. The court found further that, but for his sex, Johnson would have been promoted to the road dispatcher position, and, but for her sex, Joyce would not have been so promoted. The court concluded that the Agency’s refusal to promote Johnson violated Title VII.

The district court rejected the Agency’s defense that its actions were justified by its adherence to the Agency affirmative action plan. The court held that the Agency had failed to meet its burden of producing evidence that adherence to the plan was justified under United Steelworkers of America, AFL-CIO-CLC v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979). Specifically, the court held that the Agency failed to show that its plan was temporary and remedial rather than permanent and designed to maintain a particular balance. As a result, the court concluded, the Agency’s actions unnecessarily trammeled Johnson’s interests and had the effect of creating an absolute bar to his promotion to the road dispatcher position. While the district court stressed that its decision was based upon the Agency’s failure to satisfy the requirement that the plan be temporary, the court also expressed considerable doubt that the plan was appropriately designed to break down entrenched patterns of discrimination.²

The district court ordered retroactive promotion of Johnson, awarded him back pay based on the promotion, and enjoined the Agency from further discrimination against him. The Agency appeals from the judgment of unlawful discrimination. We have jurisdiction under 28 U.S.C. § 1291.

II

In United Steelworkers of America, AFL-CIO-CLC v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979), the Supreme Court held that Title VII does not forbid private employers and unions from agreeing to the voluntary adoption of a bona fide affirmative action plan aimed at eliminating racial imbalance in traditionally segregated job categories. The Court observed that the prohibition against racial discrimination in Title VII must be examined in light of the legislative history of the Act and the historical context from which it arose. Id. 443 U.S. at 201, 99 S.Ct. at 2726. The primary goal of Title VII was the integration of blacks into the economic mainstream of American society. Id. at 202, 99 S.Ct. at 2726. Not only was the statute itself intended to be remedial, but Congress also hoped that Title VII would “create an atmosphere conducive to voluntary or local resolution of other forms of discrimination.” H.R.Rep. No. 914, 88th Cong., 1st Sess., pt. 1, p. 18 (1963), cited in Weber, 443 U.S. at 204, 99 S.Ct. at 2727. The Court concluded that

[i]t would be ironic indeed if a law triggered by a Nation’s concern over centuries of racial injustice and intended to improve the lot of those who had “been excluded from the American dream for so long,” ... constituted the first legislative prohibition of all voluntary, private, race-conscious efforts to abolish traditional patterns of racial segregation and hierarchy.

Id. (citation omitted).

Although Weber enthusiastically endorsed private-sector affirmative action, the Supreme Court recognized the need for limitations. As the Eighth Circuit has said, courts must “ensure that new forms of invidious discrimination are not approved in the guise of remedial affirmative action.” Setser v. Novack Investment Co., 657 F.2d 962, 968 (8th Cir.) (en banc), cert. denied, 454 U.S. 1064,102 S.Ct. 615, 70 L.Ed.2d 601 (1981). The Court has yet to “define in detail the line of demarcation between permissible and impermissible affirmative action plans,” but the Court noted several aspects of the Weber plan that placed it “on the permissible side of the line.” Weber, 443 U.S. at 208, 99 S.Ct. at 2730. The plan (1) was designed to break down old patterns of racial segregation and hierarchy, (2) did not unnecessarily trammel the interests of white employees, (3) did not create an absolute bar to the advancement of white employees, and (4) was a temporary measure, “not intended to maintain racial balance, but simply to eliminate a manifest racial imbalance.” Id.

In La Riviere v. EEOC, 682 F.2d 1275 (9th Cir.1982), we applied Weber to an affirmative action program implemented by a public employer to remedy long-standing male-female imbalance in the work force. We determined that the plan to hire and train women as California Highway Patrol traffic officers satisfied the Weber guidelines. Id. at 1280. Thus, the plan could “be utilized consistently with Title VII without giving rise to liability to applicants who are excluded from the program solely because they belong to the opposite sex.” Id.

A careful examination of the record in this case and of the opinion below persuades us that the district court adopted an overly restrictive view of Weber. We conclude that the Agency affirmative action plan contains the same characteristics that the Supreme Court relied upon in upholding the Weber plan. The Court observed that “[t]he purposes of the [Weber] plan mirror those of the statute.” 443 U.S. at 208, 99 S.Ct. at 2730. We conclude that the purposes of the Agency plan also mirror those of Title VII.

Because the district court based its decision on its perception that the plan was not a temporary measure, we begin there. The district court found that “[t]he Affirmative Action Plan had no end date or other provision which would have the effect of ending preferential treatment to women.” The court cited the 1978 Agency plan, the 1979 county plan, and the testimony of James Graebner, the Agency Director.

The duration of the plan, however, while subject to factfinding by the district court, is only one factor in determining that a plan “is not intended to maintain ... [sexual] imbalance.” Weber, 443 U.S. at 208, 99 S.Ct. at 2730. Permanent maintenance is simply one potentially impermissible factor to be used in determining the validity of an affirmative action program; elimination or attainment is one permissible factor.

The Agency plan clearly aims at attainment. The district court correctly found that the plan contains no date certain or other express statement of fixed duration. The plan, however, also contains no statement that it is intended to be permanent. Enforcing it to change the male-female ratio in the skilled trades from 238 to zero, to 237 to one, clearly falls on the attainment side of the line. Moreover, the entire focus of the plan is on “attaining,” rather than maintaining, balance. The Agency plan, like the county plan, repeatedly speaks of “attainment.” Part IV states: “The Agency long-range goal is to attain a work force whose composition in all job levels and major job classifications approximates the distribution of women, minority and handicapped persons in the Santa Clara County work force.” The plan sets forth percentage long-range goals for the “attainment of equitable representation.” Unlike the district court, we believe that this emphasis upon the “attainment” of a representative work force does “have the effect of ending preferential treatment to women” once parity is achieved.

The district court was persuaded, in part, by Graebner’s testimony that affirmative action “is a permanent part of the agency’s basic operating philosophy” and even to the effect that the Agency plan will never end. Graebner’s testimony must be considered in conjunction with the plan itself, however, with its emphasis on “attainment.” Read in context, Graebner’s testimony is no more than an expression of the Agency’s long-range commitment to affirmative action, and certainly not the expression of an Agency policy to continue the program beyond the point that the law allows. Graebner’s own preface, printed at the front of the Agency plan, speaks repeatedly of “attainment” of a representative work force and of the plan’s objective “to correct ... deficiencies.”

Plans like this one are usually voluntarily adopted by employers who wish to express and act upon their commitment to social justice. They should not be rigidly interpreted so as to make their validity depend on technicalities in drafting. To do so would only discourage their adoption and encourage litigation. The district court’s assumption that Weber requires an expressed date certain for termination or some other express provision that would trigger the end of an affirmative action plan was erroneous. The Weber Court did not establish a rigid formula for testing the validity of an affirmative action plan. The Court simply noted that one saving aspect of the Weber plan was its temporary nature. Undoubtedly, a plan must end when its remedial function has been served. The fact that the plan must end, however, does not necessitate the inclusion of an explicit ending provision. We read Weber to require that a plan be temporary in the sense that it must end when its goals of parity are met. In that regard, we note a fundamental difference between the Agency plan and the Weber-La Riviere type of plan. In Weber, a fixed percentage (50%) of openings in an in-plant craft-training program was reserved for black employees, in order to hasten achievement of the long-term percentage goal (39%) for black representation in the job category. Similarly, in La Riviere a fixed percentage (50%) of the openings in a pilot study, designed to determine the feasibility of employing female traffic officers, was reserved for women. In both cases, the requirement that a fixed percentage of openings be filled by minorities necessitated a reasonably explicit deadline.³ By contrast, although the goal of the Agency plan here is also to achieve parity, the plan does not establish fixed percentages for hiring, training, or promotion. Rather, the plan allows flexibility in working towards the long-range goals, with special emphasis on recruitment, selection, training, and promotion of minorities, women, and the handicapped.

We conclude that the Agency plan is sufficiently temporary. To paraphrase Weber, the plan is not intended to maintain male-female balance, but simply to eliminate a manifest male-female imbalance. Implicit in the plan is the intent to stop taking sex into account once the long-range percentage goals are attained. Nothing in the plan indicates a contrary intent. Nor is there evidence that parity had already been achieved when Joyce was appointed and that the plan was being used improperly to maintain balance in numbers of each sex. Quite the opposite is true. When Joyce was promoted to road dispatcher, the Agency’s 237 other skilled craft positions were all held by men.

Like the Weber plan, the Agency affirmative action plan is a remedial effort intended to break down entrenched patterns of discrimination. The Agency plan contains extensive statistics illustrating the underrepresentation of women, minorities, and the handicapped in various Agency job categories. The plan acknowledges “entrenched patterns in hiring and promotion” and recognizes the particular difficulty of achieving parity in upper-level positions when discriminated groups have been traditionally excluded from trainee-level jobs.

In order to demonstrate that its plan is remedial, an employer need not show its own history of purposeful discrimination.⁴ “[A] judicial determination of ... discrimination is not a prerequisite to an employer adopting voluntary, ... [sex]-conscious remedies to comply with Title VII.” Bushey v. New York State Civil Service Commission, 733 F.2d 220, 228 n. 11 (2d Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 803, 83 L.Ed.2d 795 (1985) (referring to race-conscious plans). It is sufficient for the employer to show a conspicuous imbalance in its work force. See Setser v. Novack Investment Co., 657 F.2d at 968. This is well illustrated by Weber, in which the employer hired as craftworkers only persons who had previous craft experience. Because blacks had historically been excluded from craft unions, few had previous craft experience and, consequently, few were hired. Weber, 443 U.S. at 198-99, 99 S.Ct. at 2724-25. Although the employer did not engage in purposeful discrimination, only 1.83% of the employer’s skilled craft workers were black. Because the local work force was 39% black, the employer was justified in adopting an affirmative action plan.

Statisties are extremely useful in showing a conspicuous work force imbalance. We note particularly the difficulty that may confront an employer whose plan is intended to remedy discrimination resulting from societal norms. Some forms of discrimination are so subtle or so accepted that they defy proof other than by statistics. In Weber, the exclusion of blacks from craft unions was so pervasive as to warrant judicial notice. Weber, 443 U.S. at 198 n. 1, 99 S.Ct. at 2725 n. 1.

The promotion of Joyce to the road dispatcher position aptly served the Agency plan’s remedial purpose. Statistics contained in the plan show that not one of the Agency’s 238 skilled craft workers was a woman. Included in the skilled craft category are mechanics, body and fender repairers, construction inspectors, road maintenance workers, and road dispatchers. A plethora of proof is hardly necessary to show that women are generally underrepresented in such positions and that strong social pressures weigh against their participation. The promotion of Joyce was a lawful attempt to remedy the conspicuous imbalance.⁵

Weber also warns that a plan must not create an absolute bar to the advancement of other employees or unnecessarily trammel the interests of other employees. 443 U.S. at 208, 99 S.Ct. at 2729. The more closely a plan adheres to its remedial purpose, the less likely it is that the plan will unreasonably infringe upon the interests of other employees. See Setser, 657 F.2d at 968.

The affirmative action plan in Weber did not deprive white employees of opportunities for advancement, but created additional opportunities by establishing a new training program for both blacks and whites. Weber, 443 U.S. at 198, 99 S.Ct. at 2724. Thus, although black employees received training in preference to senior white employees, the expansion of opportunities previously limited by seniority prevented undue infringement upon non-minority interests. While the La Riviere plan did not necessarily create new openings, it did admit both male and female applicants. As in Weber, the La Riviere plan reserved 50% of the openings in the program for applicants from the discriminated group.

While the Agency plan does not establish specific programs for recruitment, hiring, training, or promotion, it does lay a solid foundation for affirmative action. It assigns tasks and presents timetables for achieving long-range and short-range employment goals. The import of the plan, as with any lawful affirmative action plan, is to give preference to members of underrepresented groups. The plan does not indicate, however, that other employees will be barred or that their interests will be unnecessarily infringed. In fact, as in Weber, the plan contemplates the expansion of opportunity for all. Shortly before the plan was adopted, the county approved 734 new Agency positions to support the expansion of the county bus fleet from 236 to 516 buses. The plan notes that “[a]s the County Transit System continues to expand, additional positions will need to be authorized.”

Johnson argues that the selection of Joyce as road dispatcher served as a complete bar to his selection for the position. We reject this narrow view. The instant case differs markedly from Weber and La Riviere in that it does not involve the admission of numerous applicants into a training program. Rather, it concerns the selection of one applicant for a single opening. When there is but one opening, the selection of one candidate will necessarily result in exclusion of all others. Unless we are shown a distinct pattern of exclusion of non-minority candidates from such positions, we cannot conclude that a single employment decision serves as a bar or unnecessarily trammels the interests of other employees. The record contains no evidence of such a pattern in this case. Pursuant to the Agency plan, Joyce’s sex was viewed as an additional positive factor in an otherwise qualified candidate. The fact that her sex may have been the decisive factor in the selection of a woman for this particular opening does not indicate that men will always be excluded.

We conclude that the Agency plan, like the Weber plan, “falls on the permissible side of the line.” We hold that the Agency’s selection of Joyce, pursuant to the plan, was a lawful effort to remedy an entrenched pattern of manifest imbalance. We are not unsympathetic to the complaint of Johnson and others before our court that employers’ attempts to remedy past discrimination sometimes visit burdens upon individual members of the non-minority group. As the Agency plan recognizes, however, “the mere existence of an opportunity for members of [discriminated] groups to apply for jobs ... will not by itself result in timely attainment of parity for currently underrepresented groups.” Affirmative action is necessary and lawful, within the guidelines of Weber, to remedy long-standing imbalances in the work force.

REVERSED.

1 . Although there is state action in this case, see e.g., Virginia v. Rives, 100 U.S. (10 Otto) 313, 318, 25 L.Ed. 667 (1880), Johnson did not challenge the affirmative action plan on equal protection grounds and we do not reach the issue.

2 . The district court’s opinion is not entirely clear as to whether it inappropriately placed the burden of persuading the court of the plan’s validity on the employer. The Supreme Court’s decision in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1972) explains the order and burdens of proof in a typical Title VII case. First the plaintiff must present a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. Then the employer must articulate a legitimate, nondiscriminatory reason for its decision. Id. The plaintiff then must convince the court that the employer’s proffered reasons were actually a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804-05, 93 S.Ct. at 1825.

We agree with the Eighth Circuit’s analysis in Setser v. Novack Investment Co., 657 F.2d 962 (8th Cir.) (en banc), cert. denied, 454 U.S. 1064, 102 S.Ct. 615, 70 L.Ed.2d 601 (1981), which applied the McDonnell Douglas formula to an affirmative action case. In order to meet the burden of articulating a nondiscriminatory reason for its hiring decision, the employer need only produce “some evidence that its affirmative action plan was a response to a conspicuous ... imbalance in its work force” and “some evidence that its affirmative action plan is reasonably related to the plan’s remedial purpose.” Setser, 657 F.2d at 968. Once an employer has produced evidence that its refusal to hire the plaintiff was a consequence of its implementation of the plan, the employer is entitled to judgment unless the plaintiff proves the plan is invalid. Setser, 657 F.2d at 962.

We disagree with the dissent’s analysis that the employer’s assertion that it made its hiring decision pursuant to its affirmative action plan is an affirmative defense imposing a burden of going forward and persuading (as contrasted to a burden of production). However, in this case, the employer has met the higher burden — the plan is bona fide, meets the tests of Weber, and responds to a need to correct an overwhelming imbalance in the work force (all of the Agency’s 238 skilled craft positions were held by men until Joyce was hired, making it 237 to 1).

3 . Yet it is not clear that the Weber plan was any more expressly limited than the Agency plan. “The ‘Joint Committee’ thereafter entered into a ‘Memorandum of Understanding’ which established a goal of thirty-nine percent as the percentage of minorities that must be represented in each ‘craft family’ at the Kaiser Gramercy plant." Weber v. Kaiser Aluminum & Chemical Corp., 415 F.Supp. 761, 764 (E.D.La.1976) (footnotes omitted), cited in Weber, 443 U.S. at 199, 99 S.Ct. at 2725.

4 . Although the district court rejected the Agency plan as a defense on the ground that it was not shown to be temporary, it also expressed doubt as to the plan’s remedial intent. This concern hinged upon the court’s finding that "[t]he Transportation Agency has not discriminated in the past, and does not discriminate in the present against women in regard to employment opportunities in general and promotions in particular.” The district court apparently assumed that an employer must show his own history of purposeful discriminatory patterns or practices. An employer need not make any such showing. Thus, the district court’s factual finding of no past or present discrimination against women by this employer is irrelevant to the issue of the validity of the affirmative action program.

5 . Citing Justice Blackmun's concurrence in Weber, the dissent contends, "Merely ‘arguable’ violations are not enough” to warrant affirmative action. The dissent misstates the law and incorrectly cites both the Weber plurality and Justice Blackmun’s concurrence. Justice Black-mun actually wrote separately to endorse the theory that "voluntary affirmative action be a reasonable response to an 'arguable violation’ of Title VII.” 443 U.S. at 211, 99 S.Ct. at 2731. His position was narrower than the plurality's, not broader: "The Court, however, declines to consider the narrow ‘arguable violation’ approach and adheres instead to an interpretation of Title VII that permits affirmative action by an employer whenever the job category in question is ‘traditionally segregated.’” 443 U.S. at 212, 99 S.Ct. at 2731. Two hundred and thirty eight to zero suffices to show such segregation.

However, were a showing of arguable violation required, we suggest that two hundred and thirty eight to zero suffices to show that too (were Ms. Joyce the plaintiff here, the job having gone to Mr. Johnson, the statistics would make a prima facie case of discrimination).