Johnson v. Transportation Agency, Santa Clara Cty.

Justice Stevens,

concurring.

While I join the Court’s opinion, I write separately to explain my view of this case’s position in our evolving anti-discrimination law and to emphasize that the opinion does not establish the permissible outer limits of voluntary programs undertaken by employers to benefit disadvantaged groups.

H-l

Antidiscrimination measures may benefit protected groups in two distinct ways. As a sword, such measures may confer benefits by specifying that, a person’s membership in a disadvantaged group must be a neutral, irrelevant factor in governmental or private decisionmaking or, alternatively, by compelling decisionmakers to give favorable consideration to disadvantaged group status. As a shield, an antidiscrimination statute can also help a member of a protected class by assuring decisionmakers in some instances that, when they elect for good reasons of their own to grant a preference of some sort to a minority citizen, they will not violate the law. The Court properly holds that the statutory shield allowed respondent to take Diane Joyce’s sex into account in promoting her to the road dispatcher position.

Prior to 1978 the Court construed the Civil Rights Act of 1964 as an absolute blanket prohibition against discrimination which neither required nor permitted discriminatory prefer-*643enees for any group, minority or majority. The Court unambiguously endorsed the neutral approach, first in the context of gender discrimination1 and then in the context of racial discrimination against a white person.2 As I explained in my separate opinion in Regents of University of California v. Bakke, 438 U. S. 265, 412-418 (1978), and as the Court forcefully stated in McDonald v. Santa Fe Trail Transportation Co., 427 U. S. 273, 280 (1976), Congress intended “‘to eliminate all practices which operate to disadvantage the employment opportunities of any group protected by Title VII, including Caucasians’ ” (citations omitted). If the Court had adhered to that construction of the Act, petitioner would unquestionably prevail in this case. But it has not done so.

*644In the Bakke case in 1978 and again in Steelworkers v. Weber, 443 U. S. 193 (1979), a majority of the Court interpreted the antidiscriminatory strategy of the statute in a fundamentally different way. The Court held in the Weber case that an employer’s program designed to increase the number of black craftworkers in an aluminum plant did not violate Title VII.3 It remains clear that the Act does not require any employer to grant preferential treatment on the basis of race or gender, but since 1978 the Court has unambiguously interpreted the statute to permit the voluntary adoption of special programs to benefit members of the minority groups for whose protection the statute was enacted. Neither the “same standards” language used in McDonald, nor the “color blind” rhetoric used by the Senators and Congressmen who enacted the bill, is now controlling. Thus, as was true in Runyon v. McCrary, 427 U. S. 160, 189 (1976) (Stevens, J., concurring), the only problem for me is whether to adhere to an authoritative construction of the Act that is at odds with my understanding of the actual intent of the authors of the legislation. I conclude without hesitation that I must answer that question in the affirmative, just as I did in Runyon. Id., at 191-192.

Bakke and Weber have been decided and are now an important part of the fabric of our law. This consideration is sufficiently compelling for me to adhere to the basic construction of this legislation that the Court adopted in Bakke and in Weber. There is an undoubted public interest in “stability and orderly development of the law!” 427 U. S., at 190.4

*645The logic of antidiscrimination legislation requires that judicial constructions of Title VII leave “breathing room” for employer initiatives to benefit members of minority groups. If Title VII had never been enacted, a private employer would be free to hire members of minority groups for any reason that might seem sensible from a business or a social point of view. The Court’s opinion in Weber reflects the same approach; the opinion relied heavily on legislative history indicating that Congress intended that traditional management prerogatives be left undisturbed to the greatest extent possible. See 443 U. S., at 206-207. As we observed last Term, “ ‘[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.’” Firefighters v. Cleveland, 478 U. S. 501, 516 (1986) (quoting Weber, 443 U. S., at 204). In Firefighters, we again acknowledged Congress’ concern in Title VII to avoid “undue federal interference with managerial discretion.” 478 U. S., at 519.5

*646As construed in Weber and in Firefighters, the statute does not absolutely prohibit preferential hiring in favor of minorities; it was merely intended to protect historically disadvantaged groups against discrimination and not to hamper managerial efforts to benefit members of disadvantaged groups that are consistent with that paramount purpose. The preference granted by respondent in this case does not violate the statute as so construed; the record amply supports the conclusion that the challenged employment decision served the legitimate purpose of creating diversity in a category of employment that had been almost an exclusive province of males in the past. Respondent’s voluntary decision is surely not prohibited by Title VII as construed in Weber.

II

Whether a voluntary decision of the kind made by respondent would ever be prohibited by Title VII is a question we need not answer until it is squarely presented. Given the interpretation of the statute the Court adopted in Weber, I see no reason why the employer has any duty, prior to granting a preference to a qualified minority employee, to determine whether his past conduct might constitute an arguable violation of Title VII. Indeed, in some instances the employer may find it more helpful to focus on- the future. Instead of retroactively scrutinizing his own or society’s possible exclusions of minorities in the past to determine the outer limits of a valid affirmative-action program — or indeed, any particular affirmative-action decision — in many cases the employer will find it more appropriate to consider other legitimate reasons to give preferences to members of underrepresented groups. *647Statutes enacted for the benefit of minority groups should not block these forward-looking considerations.

“Public and private employers might choose to implement affirmative action for many reasons other than to purge their own past sins of discrimination. The Jackson school board, for example, said it had done so in part to improve the quality of education in Jackson — whether by improving black students’ performance or by dispelling for black and white students alike any idea that white supremacy governs our social institutions. Other employers might advance different forward-looking reasons for affirmative action: improving their services to black constituencies, averting racial tension over the allocation of jobs in a community, or increasing the diversity of a work force, to name but a few examples. Or they might adopt affirmative action simply to eliminate from their operations all de facto embodiment of a system of racial caste. All of these reasons aspire to a racially integrated future, but none reduces to ‘racial balancing for its own sake.’” Sullivan, The Supreme Court — Comment, Sins of Discrimination: Last Term’s Affirmative Action Cases, 100 Harv. L. Rev. 78, 96 (1986).

The Court today does not foreclose other voluntary decisions based in part on a qualified employee’s membership in a disadvantaged group. Accordingly, I concur.

“Discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed. What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.” Griggs v. Duke Power Co., 401 U. S. 424, 431 (1971).

2 “Similarly the EEOC, whose interpretations are entitled to great deference, [401 U. S.,] at 433-434, has consistently interpreted Title VII to proscribe racial discrimination in private employment against whites on the same terms as racial discrimination against nonwhites, holding that to proceed otherwise would

“ ‘constitute a derogation of the Commission’s Congressional mandate to eliminate all practices which operate to disadvantage the employment opportunities of any group protected by Title VII, including Caucasians.’ EEOC Decision No. 74-31, 7 FEP Cases 1326, 1328, CCH EEOC Decisions ¶ 6404, p. 4084 (1973).

“This conclusion is in accord with uncontradicted legislative history to the effect that Title VII was intended to ‘cover white men and white women and all Americans,’ 110 Cong. Rec. 2578 (1964) (remarks of Rep. Celler), and create an ‘obligation not to discriminate against whites,’ id., at 7218 (memorandum of Sen. Clark). See also id., at 7213 (memorandum of Sens. Clark and Case); id., at 8912 (remarks of Sen. Williams). We therefore hold today that Title VII prohibits racial discrimination against the white petitioners in this ease upon the same standards as would be applicable were they Negroes and Jackson white.” McDonald v. Santa Fe Trail Transportation Co., 427 U. S. 273, 279-280 (1976) (footnotes omitted).

Toward the end of its opinion, the Court mentioned certain reasons why the plan did not impose a special hardship on white employees or white applicants for employment. Steelworkers v. Weber, 443 U. S., at 208. I have never understood those comments to constitute a set of conditions that every race-conscious plan must satisfy in order to comply with Title VII.

“As Mr. Justice Cardozo remarked, with respect to the routine work of the judiciary: ‘The labor of judges would be increased almost to the breaking point if every past decision could be reopened in every ease, and one could not lay one’s own course of bricks on the secure foundation of the *645courses laid by others who had gone before him.’ Turning to the exceptional case, Mr. Justice Cardozo noted: ‘[Wjh'en a rule, after it has been duly tested by experience, has been found to be inconsistent with the sense of justice or with the social welfare, there should be less hesitation in frank avowal and full abandonment. ... If judges have woefully misinterpreted the mores of their day, or if the mores of their day are no longer those of ours, they ought not to tie, in helpless submission, the hands of their successors.’ In this case, those admonitions favor adherence to, rather than departure from, precedent.” 427 U. S., at 190-191. Even while writing in dissent in the Weber case, Chief Justice Burger observed that the result reached by the majority was one that he “would be inclined to vote for were I a Member of Congress considering a proposed amendment of Title VII.” 443 U. S., at 216.

As Justice Blackmun observed in Weber, 443 U. S., at 209, 214-215 (concurring opinion):

“Strong considerations of equity support an interpretation of Title VII that would permit private affirmative action to reach where Title VII itself *646does not. The bargain struck in 1964 with the passage of Title VII guaranteed equal opportunity for white and black alike, but where Title VII provides no remedy for blacks, it should not be construed to foreclose private affirmative action from supplying relief. . . . Absent compelling evidence of legislative intent, I would not interpret Title VII itself as a means of ‘locking in’ the effects of discrimination for which Title VII provides no remedy.”

The character of this intervention, and the reasoning behind it, was described by the Agency Director in his testimony at trial:

“Q. How did you happen to become involved in this particular promotional opportunity?

“A. I. . . became aware that there was a difference of opinion between specifically the Road Operations people [Mr. Shields] and the Affirmative Action Director [Mr. Morton] as to the desirability of certain of the individuals to be promoted.

“. . . Mr. Shields felt that Mr. Johnson should be appointed to that position.

“Q. Mr. Morton felt that Diane Joyce should be appointed?

*663“A. Mr. Morton was less interested in the particular individual; he felt that this was an opportunity for us to take a step toward meeting our affirmative action goals, and because there was only one person on the [eligibility] list who was one of the protected groups, he felt that this afforded us an opportunity to meet those goals through the appointment of that member of a protected group.” Tr. 16-18.