Johnson v. Transportation Agency - Oral Argument

Argument of Constance E. Brooks

Chief Justice Rehnquist: You may proceed whenever you're ready, Ms. Brooks.

Mr. Brooks: Thank you, Mr. Chief Justice, and may it please the Court:

This case is governed by the principles that were established by this Court in Wygant versus Jackson Board of Education, that before embarking upon a voluntary affirmative action program a public employer must have convincing evidence that remedial action is warranted and, finding that convincing evidence, develop a remedy which is narrowly tailored.

In this case, we have neither convincing evidence that there was a remedial purpose nor was this remedy narrowly tailored when the Santa Clara County Transportation Agency deprived Petitioner Paul Johnson of a well-earned promotion.

First, again, in the ideal world, before developing a program an employer would look at his work force statistics, compare them with the relevant labor market, consider if there was other probative evidence of discrimination, and finally, as a third step, eliminate explanations other than discrimination, and these are the kind of explanations that an employer would ordinarily consider in rebutting a Title 7 case.

But even if the employer doesn't do this at the outset, the employer could certainly do that when the program and an employment action taken under it is challenged.

The agency neither went through the process at the beginning nor was the agency able to come forward with convincing evidence of remedial purpose.

The district court heard the corroborating testimony of discrimination.

Unknown Speaker: Well, if a statistical imbalance in the work force is evident and the adopt an affirmative action plan, isn't it apparent on its face that its remedial in the sense they're trying to remedy the imbalance?

Mr. Brooks: Your Honor, they can only remedy that imbalance if in fact it is the result of discrimination.

First of all--

Unknown Speaker: So you say just statistical imbalance will never justify by itself an affirmative action?

Mr. Brooks: --I don't believe that it should, and let me explain why.

On one hand, we know that before you embark on an affirmative action program just good intentions are not enough.

On the other hand, we know that we shouldn't require an employer to confess liability under Title 7.

Somewhere in between lies the test, and we don't necessarily have the written rule as to what should be sufficient.

Unknown Speaker: What else was there in Weber?

Mr. Brooks: I beg your pardon?

Specifically?

Unknown Speaker: Beyond an imbalance?

Mr. Brooks: This Court took judicial notice that you had had other findings of discrimination against the same employer and the same union, and again it found that the plan itself was sufficiently narrow to justify it.

But that was the remedial purpose.

Here, Your Honor--

Unknown Speaker: You think in Weber the plan adopted was to remedy past discrimination?

Mr. Brooks: --This Court... yes, Your Honor.

In this case, however, the job for road dispatcher was not underrepresented with women, and the fact that the agency relied on the fact that there were no women in the skilled craft worker category should have no bearing whatsoever on this promotion.

There were--

Unknown Speaker: Do you agree that if the employer has a firm basis for believing remedial action is necessary, because otherwise the employer is likely to be subject to some action against the employer under Title 7, that that justifies or can justify taking affirmative action?

Mr. Brooks: --Yes, Your Honor.

But I would equate that firm basis with convincing evidence.

And what we would require, and which I think is what was the problem here, is that the employer in developing that firm basis needs to consider why its statistics are what they are.

And there were a number of explanations raised.

Unknown Speaker: All right.

Here there was a category of skilled positions.

Mr. Brooks: Yes.

Unknown Speaker: Totaling what, 278 or so?

Mr. Brooks: 238.

Unknown Speaker: 238.

Mr. Brooks: Yes.

Unknown Speaker: None of which were occupied by women.

Mr. Brooks: Yes.

Unknown Speaker: And you think that is not enough for the employer to think that there might be a firm basis here?

Mr. Brooks: In this case no, because, first of all, on the face of the plan and the testimony in the trial, it was conceded that the reason you had zero there was societal and attitudinal, and net necessarily discrimination.

And specifically, this agency had had an affirmative action program in place for about five years.

They had been aggressively recruiting and hiring women throughout the work force.

They had been doing the same with minorities.

And they had made substantial increases in the numbers.

And to infer, again by 1980, that you had discrimination in the skilled craft worker category that required an employment goal by promotion was simply not correct.

Unknown Speaker: What evidence... or what is the evidence in the record as to the percentage of qualified women in the labor pool for these positions?

Mr. Brooks: Your Honor, when the agency developed its program and when this case was tried there was no evidence of what the relevant labor pool was.

And in fact, the agency relied entirely on the countywide working force for women, not the labor pool.

We offered a Petitioner's lodging showing that roughly seven percent of the women in this county at that time were in the skilled craft labor jobs.

Unknown Speaker: And the goal that the employer set was only five percent?

Mr. Brooks: No, Your Honor.

The goal set at the time the Petitioner was denied the promotion was 36.4 percent.

They didn't institute those short term goals until after Petitioner filed suit against the agency.

At the time Petitioner lost his promotion, the goal was 36.4 percent.

Unknown Speaker: That's the goal on which we have to test this case?

We have to compare it with the 36 percent or with the 5 percent?

Mr. Brooks: Certainly with respect to what happened to the Petitioner, there's no question they didn't have any short term goals.

If this Court is going to go forward with some guidelines, I think that the relevant labor market is the appropriate test.

That has to be part of the convincing evidence standard that the Court should look at.

But the Court... but the agency needed to go behind those statistics and consider whether that number zero had sources other than affirmative actual discrimination by the employer.

We had testimony in the trial that it was attitudinal.

The plan itself states that women were

"traditionally not employed in the job. "

The plan doesn't suggest that the tradition had anything to do with the agency's misdeeds.

And even... and perhaps more important, we find that the agency had been actively recruiting and bringing women in.

And because the agency never kept applicant flow data, we have no idea how many women ever applied for this job.

But I think that the factors of the effective affirmative action program, the testimony that they were having trouble recruiting women, necessarily means that no women were applying for this specific job and at this specific time.

And before we leave this subject, I think it's very important to point out that in the road dispatcher position specifically and dispatchers in general 25 percent of the agency's employees were women.

We were not in... and the relevant labor market at that time was about 22 percent.

So in the narrow focus of what happened to the Petitioner and what the agency was doing, there was no remedial purpose whatsoever, and the plan should never have applied to that particular aspect.

I think it's also clear that this plan was never narrowly tailored in an important sense.

First of all, we're in the promotion situation, not in terms of hiring, promotions.

And the burden of this plan applied entirely upon the Petitioner.

We know from the record that the job of road dispatcher did not come open very often.

Petitioner had worked for the agency for 13 years and this job came open only twice.

The goals applied throughout the work force.

The goals were not limited to the lower echelon positions.

The goals applied whenever an employer was going to make a decision.

And this goes into what clearly barred any non-minority employee when he was going up for a promotion and was going head to head with an employee that was deemed to be protected under the plan.

In this situation, the plan requires that the agency give the protected employee special consideration.

And again, this applies throughout the job force.

The plan imposes substantial and coercive measures on the agency to be sure and meet his affirmative action goals.

If there is an individual manager, at the end of the year he'll be evaluated on whether he met those goals.

And finally, there is no provision anywhere in the agency policy to protect the rights of the unprotected employees.

And the whole attitude, the focus was: We're going to give women and minorities special consideration.

There was no countervailing balance to say: Well, wait a minute; you have other employees with this agency with civil rights and they're entitled to protection also.

And as a result, whenever... and again, we don't have applicant flow data, but it is clear that as a matter of course when an unprotected employee goes up for promotion with a protected employee, the unprotected employee is going to lose.

This is not narrowly tailoring.

Unknown Speaker: Let me just ask you another question here.

Supposing the plan... it doesn't quite say this.

It's kind of vague and general, but supposing there was a provision in the plan that said if there are any substantial work pools, such as 238 skilled craft positions, and they had described 10 or 15 of them, in which there is absolutely... representation for women, that it shall be an objective of the plan to hire the first qualified woman that applies for that job, just to break the line and get some representation, and that was the sole reason given.

Would that also be equally invalid?

Mr. Brooks: Your Honor, on these facts I'd have to say yes, because already we have women actively in the work force.

They'll be in line for promotions in a relatively short period of time.

Unknown Speaker: You're saying promotions always have to be made on merit, then?

Mr. Brooks: I think that once you've opened the doors and provided for equal opportunity, it's appropriate to have these employees moving up through the work force based on the merit system.

Unknown Speaker: I agree it's appropriate.

Do you think the statute requires that all promotions be made on merit?

Mr. Brooks: In the absence of--

Unknown Speaker: In the absence of any proof of Past discrimination.

Mr. Brooks: --Convincing evidence, yes, Your Honor.

Unknown Speaker: And why would the past discrimination change the picture?

I understand that the judicial decree really doesn't have any broader power than the employer would have just adopting a new rule?

Mr. Brooks: Your Honor, I think that the reason that it would make a different to have past discrimination is because we're trying to achieve a reconciliation between the protection that Title 7 provides for individual rights and the recognized need to promote voluntary compliance and to achieve the purposes of Title 7, which is equal opportunity, and to make people whole if they have suffered discrimination.

And we require past discrimination--

Unknown Speaker: You think Weber, the Weber case, requires proof of past discrimination?

Mr. Brooks: --The Weber case... yes, the Weber case had evidence of past discrimination.

And in this case we had no evidence, and indeed an admission in the plan that any statistical imbalances were attributed to societal attitudes and to traditional norms.

And it's probably not a good thing in terms of society, and if we were Congress perhaps we would want to change that.

But again, in terms of bringing women into the work force, you can't force them into the non-traditional jobs, and if they want those jobs they can compete on merit, especially because the agency has made effective efforts to recruit them and bring them into the work force, and that have been very effective in the first five years.

We were in the second half of the agency's affirmative action program.

We were in a second plan.

They already had it in place for three years and they rewrote it at the time that the Petitioner went up for the promotion.

I think that there are a lot of other narrower tailoring aspects to the plan that are troublesome, and this really focuses on the fact that we're dealing with a promotion rather than hiring.

That is, the plan applied employment goals and doesn't take into account that there might be other, less intrusive measures to bring women into the work force.

We already know from the plan... and indeed we're not challenging many aspects of this plan that had good affirmative action programs.

We are challenging the application of an employment goal that applied throughout the work force.

And I think there are some aspects of the plan that illustrate how difficult it was.

It's a broad plan.

It seeks to achieve racial and sexual parity in each job classification.

And it goes into substantial detail in order to achieve this balance for every ethnic group, by Filipinos and by Hispanics and by Asians.

Unknown Speaker: May I just ask again.

Really, it doesn't seem to me under your view of the law that it makes any difference what the plan is, because your client was better qualified than the woman and that's the end of the case.

And there's no past discrimination and we don't have to know anything else.

Why do we even have to look at the plan?

Mr. Brooks: Well, Your Honor, this is just in case you were to find that there was an adequate remedial purpose based solely on these statistics.

Unknown Speaker: Based on statistics, I see.

Mr. Brooks: And again, we think that that should not be enough, and especially upon the facts of this case.

There's another aspect to this.

If this Court were to find that mere statistical imbalance justified affirmative action employment goals, then it would be very easy for an employer to adopt affirmative action without having any incentive to protect the rights of the other employees.

And this basically repeats a prima facie test which this Court has applied for Title 7 plaintiffs as opposed to Title 7 defendants.

Because the employer has the information and because the employer has a dual responsibility, to both his non-minority and his minority employees, I think it is appropriate to require more of the employer.

But we're not going to require that he confess liability.

It has to be somewhere in the middle.

Unknown Speaker: A promotion is involved in this case.

Mr. Brooks: Yes, Your Honor.

Unknown Speaker: How about a hire?

Do you think an employer may adopt a race conscious hiring policy, establish a goal of three to one or two to one--

Mr. Brooks: Yes, Your Honor.

Unknown Speaker: --just because he wants to?

Mr. Brooks: No.

The answer is yes, he may, but only when he has convincing evidence that there's a remedial purpose and he's determined that an employment goal--

Unknown Speaker: So you would make the same argument with respect to a hiring goal?

Mr. Brooks: --Yes, but I think that the latter aspect goes to the tailoring aspect.

When you're in a hiring situation, you're able to diffuse the burden that you're applying.

You know, you have a pool of applicants and you're looking for--

Unknown Speaker: Yes, but you nevertheless would say that just because the employer wants to isn't enough.

Mr. Brooks: --That's absolutely correct.

Unknown Speaker: And just because there's a racial imbalance isn't enough.

Mr. Brooks: No, it shouldn't be.

We need more, and this is because Title 7 protects all employees from discrimination in employment by race and sex.

Unknown Speaker: Ms. Brooks, I want to be very sure.

Tell me again why this case isn't a straightforward application of the Weber case?

Mr. Brooks: The first answer... there are a number of answers.

I think the first is this Court limited Weber to public employers.

But that really begs your question.

I think the second answer is because we're not able to diffuse--

Unknown Speaker: You meant private?

Mr. Brooks: --Pardon?

Unknown Speaker: You said public.

Mr. Brooks: Oh, I'm sorry.

I meant Weber applied only to private and we're a public employer.

Unknown Speaker: But you say that isn't really a very good distinction?

Mr. Brooks: Well, I think it begs your question because you can always extend Weber to a public employer.

[Laughter]

I think that there are... I didn't mean to make a joke.

That's within your power.

But I think there's a more important distinction, because in Weber you were able to diffuse the burdens.

Weber dealt with a new training program that benefited both black and white employees, and everyone was going to have something new and you didn't have the kind of expectations that have been developed in the work force.

Whereas in this case you had a relatively small county work force.

You had low turnover, which is in the face of the plan.

You had employees with certain promotion expectations, that if they worked hard they'd be judged on merit.

And again, to apply affirmative action in this case without being sure that you have convincing evidence of a remedial purpose and that you can narrowly limit your application, you simply can't do that.

Here it would fall entirely on the Petitioner's shoulders, and it did.

Unknown Speaker: Ms. Brooks, you're at pains not to require the employer to come in and confess that he's been discriminating in the past, but I just wonder how secure your assurance is.

He doesn't have to come in and say: I've been guilty of discrimination in the past.

But in order to defend against a suit by the non-minority employee who hasn't been promoted he's going to say: Well, you know, I'm not saying I was, but I may have been.

Right?

He has to come in and put in that evidence, leaving himself open to later suits by people who say: Well, he didn't say he was, but he said he may have been, and to prove that he may have been he confessed this, this, and this, right?

Mr. Brooks: I think there are a number of answers to that.

First, in undergoing a process before adopting the affirmative action program, the employer is able to have evidence, a process that he went through and to be able to come forward.

So it immediately takes him off the really dangerous point in the tightrope.

He's got some protection.

But in doing the evidentiary process to develop a basis for your plan, the employer is not necessarily required to prove to a certainly that he's discriminated.

Unknown Speaker: No, just that he may have been discriminating.

Mr. Brooks: Exactly.

Unknown Speaker: Right.

Mr. Brooks: But I think that that's necessary.

Unknown Speaker: But no employer's going to like to do that.

I mean, you're just developing evidence for somebody else to use in a later suit against you.

Mr. Brooks: Well, Your Honor, no person may not be able to do it, but Title 7 says that you cannot discriminate against your employees.

And you have to have some kind of credible basis.

That was the holding in Wygant.

Unknown Speaker: It does seem to me to put the employer between a rock and a hard place.

In order to validate his plan, he has to show that there is, what, a likelihood, a potentiality, what, something that he's discriminated in the past.

Mr. Brooks: The kind of evidence that we're talking about... and again, this is only some ideas... would be to look at the statistics and give a careful scrutiny to the statistics.

In this case, the agency used the wrong relevant labor market.

As Justice O'Connor pointed out, they never even looked at the real relevant labor market.

And in fact, it's very interesting, because this issue came up when they rewrote their plan in 1978 and the director testified at trial.

Well, someone raised it, but we really never got too far.

So first of all, what we're asking for is a statistical scrutiny, which by itself should not expose the employer.

Second, he looks for some kind of explanation for these statistics other than discrimination.

This is a process that he would ordinarily go through in defending a Title 7 case.

I think it's an appropriate process just as an employer.

It's not burdensome, and if he finds that there's discrimination and he looks for other corroborative evidence it doesn't have to be specific acts.

But we're talking about sort of a minimal effort to ensure that when you've got a plan, you've got a good basis for that plan.

And by even doing this minimal effort, you're in a much better position to identify what you need to remedy and how to remedy it.

It's a process.

It has an underlying substance.

But I don't think that employers would necessarily be discouraged from doing that.

And it's got... and again, in order to protect people like Petitioner, who otherwise do have their rights lost, the employer has to do something more than just throw out statistics.

Unknown Speaker: What would you say the prevailing law is or was in the lower courts with respect to whether racial imbalance alone would make out a prima facie case under Title 7?

Mr. Brooks: I think if you're a Title 7 case... Title 7 plaintiff, excuse me, I don't think there's any question that that is a prima facie case.

But again, and I think this is a question--

Unknown Speaker: Well, how about if you're just a court?

Mr. Brooks: --Okay.

Unknown Speaker: Not the plaintiff but what about--

Mr. Brooks: The prevailing law is--

Unknown Speaker: --The plaintiff gets through with his case or her case and the only proof is racial imbalance, and there's a motion to dismiss.

Mr. Brooks: --Then that would be denied, Your Honor, because statistical imbalances, if there's no explanation, do establish a case.

And that really was, I believe, Judge Wallace's dissent.

And we think that it was a very good point, which is when an employer has developed an affirmative action plan and is going forward to discriminate against non-minority employees pursuant to that plan, he's not asserting a non-discriminatory reason.

Unknown Speaker: Well, if that makes out a prima facie case in a Title 7 case, just racial imbalance, what's the employer then... how can he win the case?

By proving there isn't racial imbalance or proving that, what, there is no racial discrimination?

Mr. Brooks: The employer can come forward with a number of explanations, and particularly I believe this Court held in the Cooper case that you can explain the statistical imbalance my reasons other than no discrimination.

Again, in Wygant this Court held that mere past history of racial discrimination is not enough.

Unknown Speaker: Well, what if the employer who has a racially imbalanced work force asks his attorney, if I am sued... he says there's a racially imbalanced work force and it would survive a motion to dismiss in a Title 7 suit.

Should I do something about it or should I--

Mr. Brooks: Yes, and that's precisely--

Unknown Speaker: --No, wait a minute.

Mr. Brooks: --Oh, I'm sorry.

Unknown Speaker: Should I also ask you what are the chances of the plaintiff winning?

You look around and do you think that I might lose a Title 7 case?

Mr. Brooks: And that's exactly why having the employer consider statistical imbalances and look for explanations and then take a remedy before he gets sued would solve the problem.

I would like to reserve the rest of my time.

Unknown Speaker: Did you just give away your case or not?

Mr. Brooks: No, I don't think we gave away our case at all, because here the agency never did that kind of a process.

The agency never considered other explanations, and we raised those other explanations in the trial.

We showed that women were not applying--

Unknown Speaker: You mean it never asked, might I lose a Title 7 case?

Mr. Brooks: --The agency has claimed that they would.

I don't think that they would on these facts, because the plan shows that the lack of women was attitudinal and that the agency was affirmatively hiring.

Argument of Steven Woodside

Chief Justice Rehnquist: Thank you, Ms. Brooks.

We'll hear now from you, Mr. Woodside.

Mr. Woodside: Thank you, Mr. Chief Justice, and may it please the Court:

I'd like to begin by answering the questions that Justice White just posed and to tell you what my advice to my clients would have been under these circumstances.

With no women out of 238 skilled craft workers, with only one woman working on the road crews, with evidence of practices... the job descriptions were male-oriented only and specifically stated that these jobs--

Unknown Speaker: Now you're putting some other facts in the question.

Let's just stick to a racial imbalance.

Mr. Woodside: --Very well, Your Honor.

With those statistics of no women in the skilled craft work force and only one woman out of 110 road workers, I think there would clearly be a prima facie case.

Unknown Speaker: And you think that just regularly in the district courts that evidence would survive?

Mr. Woodside: A motion to dismiss?

Absolutely, Your Honor.

Unknown Speaker: But it would not mean that the employer would necessarily lose the case?

Mr. Woodside: It would not mean that the employer would necessarily lose.

We would have to... we would have then the burden of articulating non-discriminatory reasons for this particular imbalance.

And I think on the facts of this case which are in this record, we would have not been able to meet that burden.

Unknown Speaker: Well, so but you think the employer should not only... shouldn't adopt a policy just based on racial imbalance, but that he should say, have I got a good chance of actually losing the case?

Mr. Woodside: No, I believe that if there is evidence of a prima facie case of discrimination, that that's enough for an employer to consider.

Unknown Speaker: Well, that means just racial imbalance.

Mr. Woodside: That means racial imbalance, that's right.

Unknown Speaker: He needn't go on and say, well, I think I can still win because I have a neutral explanation?

Mr. Woodside: Well, as I tried to make clear with the facts of this case--

Unknown Speaker: Well, I know, but forget these facts.

Mr. Woodside: --Right.

Unknown Speaker: Do you think the employer need not go on and say that I do or I don't have a neutral explanation?

Mr. Woodside: I think that's correct, Your Honor.

And the reason I say that is that these kinds of statistical imbalances put the employer between the rock and the hard place that Justice Scalia referred to earlier.

Unknown Speaker: What if the employer knows that no woman has ever applied for any of these jobs, that it's just the kind of job that for some reason women in that area have not applied for?

Mr. Woodside: I think that would be a--

Unknown Speaker: Is that something the employer must weigh in addition to statistics?

Mr. Woodside: --I don't think it's required that the employer must weigh that.

But your question suggests that if the employer knew that factor; I think that would make it a much closer case.

That factor is not present in this case.

Unknown Speaker: Well, who's going to know if the employer doesn't?

Presumably, the employer is the one that receives job applications.

Mr. Woodside: That's correct, Your Honor.

And given the liberal rules of discovery, in this case had the Petitioner sought to pursue that line of inquiry it could, Petitioner could have done so.

It was not pursued, and indeed the question of--

Unknown Speaker: Well, then it really boils down to the burden of proof in a sense, doesn't it?

I mean, if the burden was on you in that situation... it wasn't up to the plaintiff.

But if the burden was on the plaintiff, then the plaintiff should have discovered.

Mr. Woodside: --I think that's correct, given those limited facts and the limited hypothetical that Justice O'Connor has--

Unknown Speaker: Mr. Woodside--

Mr. Woodside: --Yes.

Unknown Speaker: --I was under the impression that the district court found that there had never been any discrimination against women by the agency and that none was occurring at the time of trial.

Mr. Woodside: That, Your Honor, was not a litigated issue in the case.

Unknown Speaker: It did make that finding?

Mr. Woodside: The district court judge did make that finding.

Unknown Speaker: Did the Court of Appeals hold it clearly erroneous?

Mr. Woodside: No, the Court of Appeals did not hold that clearly erroneous.

Unknown Speaker: So you rely solely on the statistics?

Mr. Woodside: I rely on the statistics, as well as evidence of other practices.

And I think that finding of no discrimination was the wrong finding to be entered in such a case.

The relevant inquiry, it seems to me, should be whether or not the employer believed and had a firm basis to conclude that it may have discriminated against women, based on its own knowledge of the statistics.

Unknown Speaker: But don't we have to accept the findings as they come to us?

Mr. Woodside: Yes, Your Honor, you do.

And I'm not suggesting that that finding be reversed as clearly erroneous.

But I think it was not one which was litigated.

There was nobody at the trial court pointing the finger at the transportation agency and saying: You in fact discriminated against women.

That was not litigated.

I certainly was not going to stand up and concede discrimination against women.

Unknown Speaker: Would you clarify for me what the affirmative action plan consisted of?

Was it a plan to be geared to the percentage of women in the countywide work force for every kind of position?

Or was it geared to the number of women qualified for these technical jobs in this particular category?

Mr. Woodside: It actually has elements of both, Your Honor.

There was a general overall goal set forth in the 1978 plan that for each job and each job category the goal would be that all job categories would be comprised of women, minorities, and others approximately in proportion to their numbers in the county labor pool.

Unknown Speaker: So you concede, then, that this employer affirmative action plan was not geared to the number of qualified women in the pool of labor?

Mr. Woodside: No, Your Honor, I don't concede that, because the next step and probably the most important step in our plan, is that after those overall goals were set the plan further requires that specific goals be thereafter set for individual jobs, such as skilled crafts.

And Your Honor correctly pointed out that there was a goal set for skilled crafts of only three women out of 55 expected new hires in 1983.

Unknown Speaker: Where do we find that?

I confess that it was difficult for me in these opinions to know what it was that the affirmative action plan really consisted of in that regard as applied to these jobs.

Mr. Woodside: The agency's goal is contained in the 1982 plan.

Unknown Speaker: Is that in the appendix someplace?

Mr. Woodside: Yes, it is, Your Honor.

Unknown Speaker: Where would I find it?

Is it in the appendix?

Mr. Woodside: Yes, it is.

Unknown Speaker: Don't take your argument time.

I want to know where I can find it.

Mr. Woodside: It is in the joint appendix and it is cited.

The specific reference is cited in our brief, Your Honor.

That specific goal of three out of 55 was the goal for the skilled craft jobs.

Unknown Speaker: Was that the goal that was applied when Mr. Johnson was denied his promotion?

Mr. Woodside: There was at that time no specific goal for skilled crafts.

Unknown Speaker: So at that time they were using the countywide pool?

Mr. Woodside: They were using the countywide pool as a reference--

Unknown Speaker: But that's the case we're trying, right?

We're not trying somebody else who came up after there was a three out of 55 requirement, somebody who came up when there was a what, 30 percent requirement?

Mr. Woodside: --The long term goal was 36.4 percent.

Unknown Speaker: So it seems to me your response to Justice O'Connor is utterly irrelevant to this case.

Mr. Woodside: No, I don't believe so, Your Honor, because I--

Unknown Speaker: Well, this is Mr. Johnson's case, I thought, and he's complaining about being denied a promotion.

Mr. Woodside: --He is, Your Honor.

But the plan does more than simply state there shall be a fixed number of women in any particular job.

The plan sets absolutely no quota.

The plan establishes no fixed preference.

It simply says, given those numbers, the director of the agency should give consideration to that disparity, the absence of women for example, in making hiring and promotion decisions.

Unknown Speaker: I don't understand.

You're saying he was not applying a 30 percent quota?

Mr. Woodside: I'm not saying that, Your Honor.

That is the long term goal, that is the long term goal.

Unknown Speaker: When Mr. Johnson's case came up for promotion, was the agency applying a 30 percent goal or not?

Mr. Woodside: Quota?

No, there was no quota.

Unknown Speaker: Goal.

Mr. Woodside: Long term goal, yes.

Long term goal, yes.

I think it's important, Your Honor, that the long term goal, which was later refined to be more specific for women in skilled crafts, that long term goal did not require any fixed preference to be given.

Indeed, everyone who wished a promotion could compete for a promotion.

Unlike what the Petitioner's counsel has just said earlier, there is no evidence to indicate that in every case women would get the promotion.

Indeed, the facts are to the contrary.

Unknown Speaker: Well, Mr. Brooks, is it your position that the county as an employer can set an affirmative action plan goal that is geared to the number of women in the labor force in the county generally, as opposed to the number of qualified women in the available pool?

Mr. Woodside: Yes, Your Honor.

Unknown Speaker: That an affirmative action plan geared to the larger percentage is valid?

Mr. Woodside: Yes, Your Honor.

Now, in this case I think the reason why that is valid is that under the case law decided by this Court one would ordinarily expect in jobs throughout an agency that they would be comprised, absent discrimination, of roughly their numbers that exist in the general labor pool.

Unknown Speaker: Is that right?

Mr. Woodside: Yes.

Unknown Speaker: You mean it is statistically reasonable to expect as many women to be working on road crews and to believe that if there aren't that proportion there must be discrimination, as there are to think that there are women working in--

Mr. Woodside: I think that there would be an inference of discrimination drawn from that factor alone.

Unknown Speaker: --What is that based on?

Human experience or some governmental policy?

Mr. Woodside: I think it is based on both human experience and governmental policy.

Unknown Speaker: On human experience?

Mr. Woodside: Yes, Your Honor.

I think women do seek these jobs--

Unknown Speaker: In this country?

Mr. Woodside: --Yes.

If I may, Your Honor, the suggestion that's made by the Petitioner's counsel, for the first time in this case, is that the relevant labor pool was seven percent or five percent as she stated in the reply brief.

If that is the case... and it's too bad that that was not litigated at trial or not even mentioned at the Court of Appeals.

But if that is the case, then it's clear from those numbers alone that there would have been a case of discrimination against the agency.

The difference between zero, which is what we have here, and five percent or seven percent or any of the higher figures makes us vulnerable to a charge of discrimination and gives us good cause, it seems to me, to take remedial action.

Unknown Speaker: Without even considering at all whether you can bring forward any patently valid justification for the statistical discrepancy, for instance the relevant pool is not all women working in the county, but rather women working in this particular craft or this particular area?

Without even considering that, you're entitled to say, oh, we're at risk for a discrimination suit, and we can immediately begin discriminating on the basis of race or sex in our promotion and hiring?

Mr. Woodside: I don't think I would say you can immediately begin to discriminate.

The plan says that that fact should be considered in the hiring and promotion decisions.

It should be considered.

It's not necessarily determinative.

And at the time of this decision, there were absolutely no women in the skilled craft jobs.

Those were the facts known to the agency director at the time, and that was the basis upon which he made his decision.

Unknown Speaker: Well, he not only considered it; he did promote a less qualified woman over a better qualified man.

Mr. Woodside: Well, the district court did make that finding with respect to qualification.

Unknown Speaker: Well, that's the case we're... that's the case that's now here.

Mr. Woodside: Yes, Your Honor.

But I would point out that the agency director testified that in his view they were equally qualified.

Unknown Speaker: Well, could I ask you what you think that our cases last term held with respect to what circumstances justify giving relief to a non-victim?

Mr. Woodside: I think that your cases held that in the context of the problem that we have here is that where there is a firm basis upon which an employer can infer that its own practices may have been discriminatory, then the employer can voluntarily take affirmative action which is not victim-specific.

And I would cite primarily the Wygant case for that proposition.

Unknown Speaker: Do you think our cases said that the circumstances must evidence particularly egregious instances of discrimination?

Mr. Woodside: I don't think the case law says it has to be particularly egregious.

I think the case law suggests that where there are facts that suggest there would be a prima facie case of discrimination, the employer can voluntarily embark on an affirmative action course.

Unknown Speaker: But you wouldn't suggest that there was any evidence here of egregious discrimination, would you?

Mr. Woodside: There was no such finding, Your Honor.

But there was... and I think it's important to remember that the statistics were buttressed at trial by evidence of the agency's own practices.

Unknown Speaker: But the lady who, the woman who was promoted, was not a victim of discrimination?

Mr. Woodside: Well, the district court made one finding that's interesting.

He suggested that one of the interview panelists may have had discriminatory intent against her because she was a woman, but that that by itself did not justify the action taken.

So I think even the district court judge conceded that under the facts presented here there was evidence that she may have been deterred and in fact--

Unknown Speaker: Of course, if that were the case none of you would really be here.

Mr. Woodside: --If the district judge had made the finding that she had in fact been discriminated against, yes, I think you're correct, Your Honor.

Unknown Speaker: Let me make sure I understand the sweep of your argument, Mr. Woodside.

If I understood your answer to Justice White correctly, you're asserting that a government always has the right to institute a plan that permits discrimination in hiring and in promotion on the basis of race or sex whenever its work force does not contain the same proportion of race, minority race or that sex, as the work force at large?

Is that it?

Mr. Woodside: I think that--

Unknown Speaker: That that alone is enough to show, that statistical disparity is enough to justify an affirmative action plan, that is to say discrimination by the government on the basis of race?

Mr. Woodside: --If those differences that you describe are statistically significant, in other words if the difference between--

Unknown Speaker: Now you're hedging it.

I mean, I was bringing in statistical significance in my earlier question, that the mere fact that the work pool in general contains 30 percent women doesn't necessarily mean that this particular craft or trade or occupation should have 30 percent women.

And you rejected that.

You said it's enough if working women constitute 30 percent of the work force.

Mr. Woodside: --I think that raises the question as to whether or not the practices in the agency itself have been fair toward women.

And under our practice--

Unknown Speaker: Well, now you sound like the other side.

Now you're saying that it isn't enough to just have a statistical disparity, that the employer has to have some reason to believe that the statistical disparity is the result of discrimination.

Mr. Woodside: --I understood your earlier question to mean that any time there is a disparity between the work force and the labor market generally, would that constitute a prima facie case of discrimination?

My answer to that is yes.

Unknown Speaker: And justify immediate implementation of an affirmative action action plan?

Mr. Woodside: That's right, and it would be up to the Petitioner to prove that there is an alternative explanation for those statistical imbalances.

Unknown Speaker: Well, but they're trying to prove that here and you're saying it's irrelevant.

Mr. Woodside: No, they--

Unknown Speaker: You're saying that your client was authorized to institute the affirmative action plan because of the statistical imbalance.

Mr. Woodside: --But against the challenge, it would be up to the Petitioner to prove that it would be reasonable to have no women in the skilled craft category.

And there was not a shred of evidence--

Unknown Speaker: No, not no women, just not necessarily to impose 30 percent women.

That's what your plan was.

Mr. Woodside: --The plan set a long term goal.

I want to emphasize that.

It set a long term goal.

The factors that the agency director cited when he made the decision was the absence of women in the skilled craft category.

That's really the salient fact in this case.

We don't have before the Court the case where there were several women in the job and it was another promotion down the line that was at issue.

The strong point in the agency's plan here is that calls for a case by case review in hiring and promotion to look at the statistics as you find them at that point in time.

And to me the very important factor in this case is that this was the first time a woman got a skilled craft job, and she didn't get it because there was a quota.

She got it because there was--

Unknown Speaker: She didn't get it because she was better qualified.

Mr. Woodside: --She was certainly well qualified and, as the district court judge found--

Unknown Speaker: What percentage did women then make up of the particular category of jobs, after her promotion?

Mr. Woodside: --After her promotion?

I can cite to you some record statistics that between 1978 and 1982 there was an increase of 111 skilled craft workers, and of those 111 additional jobs 6 were women.

So she was the first and there were five more out of another 110.

So this was not the kind of plan where the agency gave, as has been suggested, an automatic preference for women.

It simply did not occur here.

The agency's action was moderate and it was handled on a case by case basis, given the facts known at the time of each decision.

And that's a fluid situation, I would submit, because as we learned more about this job and looked at it more closely the goal for the job was refined to, incidentally, between five and six percent women to be hired for the expected new openings.

Unknown Speaker: Mr. Woodside, I'm puzzled when you say that this was not a case of an automatic preference for a woman.

But that's the only reason she got the job.

Mr. Woodside: Oh, it's not the only reason, Your Honor.

She was--

Unknown Speaker: I mean it's the only reason he didn't get it, the other way around.

Mr. Woodside: --That became the decisive factor.

If I can explain, the county's rules require that hiring or promotion decisions be made from a list, a civil service list, of the top seven applicants for the job.

She was one of those top seven applicants.

And if there was nothing said about sex in this case, any of those top seven could have been appointed.

And I would submit, if the agency director had just simply said, I liked her better, and appointed her, that would probably be the end of it.

But it is clear--

Unknown Speaker: But that's not what happened.

Mr. Woodside: --Well, he did state that that became a factor in the decisionmaking process.

Unknown Speaker: Yes, but until she registered a complaint with the affirmative action section she was out, isn't that correct?

Mr. Woodside: Apparently she was out even before the second round of interviews, according to her testimony.

Mr. Johnson apparently had the inside track.

Unknown Speaker: Well, I don't know.

Maybe... I just don't understand how you can say this is not an automatic preference.

Mr. Woodside: Well, what I'm trying to say, Your Honor, is that there is no automatic preference to be accorded women.

These cases are to be--

Unknown Speaker: Do you think it would be a violation of the statute if the county said, in departments where there are 238 men and you get a qualified woman that comes in, let's automatically give her some favored, better consideration than we would give a man?

Mr. Woodside: --On these facts, I do not think that would be a violation.

I'm trying to illustrate--

Unknown Speaker: But you're just saying that's not this case?

Mr. Woodside: --That's correct, and I think this case is more subtle.

I think this case involves, as I stated earlier, a case by case review of employment decisions.

Unknown Speaker: Mr. Johnson, who had had his eye on this job for some time, apparently, and had taken a demotion and worked in a lower paying job for several years in order to obtain better qualification in order to get this promotion, he competed head to head with the woman who ultimately got the job.

He was selected and would have gotten the job but for the fact of the affirmative action program.

She had been rated less qualified and was given the job in preference to him, solely by reason of the affirmative action plan.

Isn't that the facts of the case?

Mr. Woodside: I think you could summarize it that way, Your Honor.

But I would not want to omit the fact that Ms. Joyce also competed for this job.

Ms. Joyce in 1974 applied for the road dispatcher job.

She was told at the time that she was not qualified.

She then went and worked on the road crews themselves for five years, which incidentally was twice as long as Mr. Johnson did.

So that by 1980, when they were competing head to head, as you put it, both of them were well qualified to perform the work.

And the scores that were arrived at in this case based on an interview alone, without a test of formal procedure, show them to be but two points apart.

Unknown Speaker: He had served in the job?

Mr. Woodside: Pardon?

Unknown Speaker: He had served in the job previously, hadn't he?

Mr. Woodside: Without competing with anyone else.

Unknown Speaker: That's right, serving above his grade, but on an acting basis.

Mr. Woodside: On an acting basis, without competing with anyone for that job.

There's no question but that there are competing interests here, and it would seem to be that this Court would want to allow appointing authorities and employers throughout the country to make decisions which they believe are in their best interests and are fair as can possibly by made to all concerned.

In this case a--

Unknown Speaker: That sounds like you're saying that any time an employer wants to adopt a race conscious hiring or promotion policy, that should be permitted?

Mr. Woodside: --No, I'm not saying that, Your Honor.

Unknown Speaker: Well, he thinks it's fair; that's what you said.

Mr. Woodside: No.

Unknown Speaker: He thinks it would be in his best interest; that's what you said.

Mr. Woodside: I think because of the statistics that were in this case and because of the evidence of practices that women had been excluded from training opportunities in the past, that the agency had refused to hire pregnant women and the like, given those facts, that it's permissible to engage in--

Unknown Speaker: Well, you're adding something in the balance besides a racial imbalance.

Mr. Woodside: --Yes, but I believe those are the facts here, and I tried... I endeavored to answer your question if we were only dealing with racial... or sex imbalance.

But I think there is more in this case.

Unknown Speaker: My concern, Mr. Woodside, is not about preventing employers from doing what they think is best for the work force.

What I'm concerned about is that, to go back to the rock and the hard place analogy, the employer is faced with the possibility, and state employers in particular, of getting caught with affirmative action suits.

Mr. Woodside: Yes.

Unknown Speaker: And one way to avoid being between the rock and the hard place is to put Mr. Johnson between you and the rock.

And that's the risk.

That's the risk that occurs here.

In order to avoid all possibility of an affirmative action suit, it's very easy for an employer to say: Well, why should I worry about my skin; I'll just adopt an affirmative action program, discriminate against Mr. Johnson or anybody else on hiring, and that's perfectly lawful, and simply appeal to statistical disparity.

I'm not worried about his doing it for the good of the work force.

He'll do it for the good of the employer.

I mean, that's the way people are normally motivated.

Mr. Woodside: Well, I think it was done for the good of the work force.

And also, there was an effort made to be fair in the way this plan was designed.

This plan was not designed to make... to have, for example, as was discussed in the case earlier this morning, a one for one hiring quota.

It's not like the Weber plan, which stated that there shall be a 50 percent set-aside for black workers in the Kaiser plant.

This case called for a case by case consideration, and as applied it meant that there were very few women who actually benefited from the affirmative action plan, but a few did.

And we think that that's the type of moderate, sensible approach that this Court should endorse.

Unknown Speaker: Could I ask, did you say that some goals have been refined to say five or six percent?

Mr. Woodside: Yes, Your Honor.

Unknown Speaker: In what, these skilled category jobs?

Mr. Woodside: Yes, Your Honor.

Unknown Speaker: Well, suppose that prior to the adoption of your plan you had looked around and you had said, well, there's 30 percent of women in the work force in the county, but we only have six percent in these jobs.

There's really a statistically significant imbalance.

Now, under your argument I take it they could have adopted this affirmative action plan and carried it out, except that one of these days you really discover that you made a mistake, it should have only been... five or six percent is plenty.

Mr. Woodside: I understand, and that would be a harder, much closer case, Your Honor.

But I think the facts here cannot be emphasized any greater than that there were zero women.

That's the real important factor in this case.

I think this case illustrates well the difficulty that employers, public or private alike, have in meeting their obligations under Title 7 to both prohibit discriminatory practices on the one hand and on the other hand to really try to effectuate and provide remedies where lawyers believe discrimination may have occurred.

I think we have the facts there that discrimination may have occurred.

That statement was made in the 1978 affirmative action plan, and I think the agency should be entitled to take the modest steps that it has done.

Unknown Speaker: Let me just ask one more question.

I've still been trying to figure out the answer to the one Justice O'Connor asked you a while ago.

You have an employer that employs 238 people.

Mr. Woodside: Yes.

Unknown Speaker: He has no women in the work force at all.

Mr. Woodside: Yes.

Unknown Speaker: He knows that no woman has ever applied.

He's never discriminated.

He knows that to be a fact.

Under your interpretation, he cannot decide that he would like to hire a few women in order to minimize the risk of suit or just because he thinks it's a healthy thing to do, whereas somebody who knows he has discriminated in the past can take and can adopt an affirmative action program?

Mr. Woodside: Well, it seems to me that in the question that you have asked, the absence of any women and the absence of women applicants may not answer the question whether or not there has been discrimination.

It may be that the employer's own--

Unknown Speaker: Well, my hypothesis is, whatever facts are relevant, he knows there just has never been any discrimination here, whatever the reasons might be.

But I gather on your view he could not adopt an affirmative action program?

Mr. Woodside: --Well, if it were shown that he knew there was absolutely no discrimination, that he the employer knew that--

Unknown Speaker: He did all the hiring himself and he knows he never had any applications.

Mr. Woodside: --I don't think he could--

Unknown Speaker: Well, even though that would make out a prima facie case of employment discrimination?

Mr. Woodside: --Well, that's the difficulty.

Under the hypothetical that Justice Stevens has asked, he's suggesting there is no prima facie case because--

Unknown Speaker: Well, no.

Under your view of the law, the plaintiff, all he would have to do is to show that imbalance, and that would survive a motion to dismiss and then the employer would have to prove no discrimination.

Mr. Woodside: --Then he's suggesting further that the explanation for that imbalance is no women have ever applied.

And what I'm saying--

Unknown Speaker: That's a defense to the prima facie case.

Mr. Woodside: --Yes.

Unknown Speaker: He has a prima facie case, and I thought you had been saying that so long as there is a prima facie case he can institute an affirmative action plan.

Mr. Woodside: Yes, and I tried to--

Unknown Speaker: So maybe you should have given a different answer to Justice Stevens.

Mr. Woodside: --I'm sorry.

[Laughter]

The closer--

Unknown Speaker: Me, too.

I should have asked Justice Scalia.

[Laughter]

Mr. Woodside: --I have nothing further to add.

Thank you.

Rebuttal of Constance E. Brooks

Chief Justice Rehnquist: Thank you, Mr. Woodside.

Ms. Brooks, do you have something that you wish to say?

You have four minutes left.

Mr. Brooks: I just have a few points to respond to.

I think that the facts of this case show why we would suggest that an employer has to show more than a prima facie case before he adopts a voluntary affirmative action plan.

And by a prima facie case, I'm talking about a naked statistical balance, because here the agency clearly never went behind and considered whether no women had ever applied.

It's not quite correct to say that Petitioner didn't ask for applicant flow data.

It was requested during discovery and we were told it wasn't available because the county never got the computer program.

That's really not here or there, but I do want to make it clear that we did look for applicant flow data and were told it just wasn't available.

Unknown Speaker: Ms. Brooks, can you explain one thing to me?

I'm a little... what difference does it make whether the proper proportion in this particular labor pool, if we're playing statistics, was 30 percent or 5?

What difference does it make?

Inasmuch as there were no women in this job category at the time anyway, even if the percentage were, the proper percentage were 5 percent instead of 30 percent, presumably in implementing the affirmative action plan the employer would have been justified in preferring this woman.

Mr. Brooks: We don't agree that the employer would have been justified in preferring the woman, because if you look at the road dispatcher job you had 20 percent of the employees, 3 out of 18, were already women at the time.

So the plan should never have applied.

But if you look at the plan in general, the fact that they never looked for a relevant labor market goes to the overall crudity of the affirmative action plan.

You don't have an employer here who made a good faith effort to develop a plan.

You have an employer who basically looked at the overall population, slapped some number in, and then went forward, again without taking into account the rights of the other employees.

That's why it's relevant, because this plan is facially discriminatory with respect to all of the unprotected employees.

Unknown Speaker: You don't believe there's a harmless error rule?

That is, that even if the employer had used the right percentages, an affirmative action plan based on that would have justified preference to this--

Mr. Brooks: Not in this case, because there are other explanations for the statistical disparity.

And in fact, you find these in the county's own documents.

They admit that they attribute the lack of women here not to "past discrimination"; they attribute it to societal attitudes.

And I don't think that this Court has ever held that women will necessarily occupy the same jobs in direct proportion to their representation in the working force.

I think it's rather obvious that women and men prefer things differently.

I'm not saying that that's always good, but attitudes based on sex are different.

And I think it's an important factor here that you have women applying for non-traditional jobs in the transit agency and getting them.

You had extensive hiring in terms of women bus drivers and women utility workers, which was the position below becoming a mechanic.

I think what you have here is an explained statistical disparity in that women were going into other jobs and choosing not to work for the roads division, where you had fewer openings and less future opportunity for advancement.

But we don't know, because this agency never looked and never considered other alternatives than their assumption that they discriminated.

And we say that's wrong and that's why you should have more than just a prima facie case when we talk about convincing evidence that it is appropriate to go into a voluntary affirmative action plan.

I think there's another factor here--

Chief Justice Rehnquist: Your time has expired, Ms. Brooks.

Mr. Brooks: --Thank you very much.

Chief Justice Rehnquist: The case is submitted.