Is affirmative action justified as a means of closing the gender gap in the work place?

During the 1970's affirmative action gained increasing popularity as a means of righting the wrongs for those groups who had suffered most from past discrimination. Affirmative action plans often established quotas for women and minority groups, assuring some of their members a minimum numbers of jobs or places in a university class, even if their qualifications were somewhat lower than white male applicants.

In 1978, the Santa Clara County (California) Transportation Agency adopted a temporary affirmative action plan. The plan was designed to take into account the sex or race of qualified applicants, with regard to promotion within traditionally segregated job classifications, in which both women and members of racial minorities had been under represented. The affirmative action program did not set aside a specific number of jobs for minority members and women but established annual goals as guidelines in hiring and promotion so as to attain, eventually, "a work force whose composition reflected the proportion of minorities and women in the labor force."

In 1979, a vacancy for the job of road dispatcher was announced. A woman had never held the position. The agency awarded the job to Joyce, a female employee over Johnson, a male employee. While both Joyce and Johnson were certified as eligible for promotion, Joyce had a slightly lower interview score than Johnson. However, the agency awarded the road dispatcher’s job to Joyce, in compliance with the County’s affirmative action plan. In response, Johnson brought a legal action claiming that the agency violated Title VII of the 1964 Civil Rights Act, that prevents employers from discrimination on the basis of sex.

Eventually, the case reached the Supreme Court, where the majority held for the Transportation Agency. The Court held that pursuant to Title VII, the affirmative action plan was appropriate as a means of remedying the imbalance between males and females in jobs like the road dispatcher’s. In allowing it to stand, the Court noted that according to the plan, no specific number of jobs were set aside for women, rather women were required to compete for promotion with other qualified applicants.

 Students will be able to:

• Analyze the arguments, decision, and impact of Johnson v. Santa Clara County Transportation Agency.
• Express their opinions about affirmative action as a means of redressing the effects of past discrimination against women and members of minority group.

 Handout 5A "You’re the Cartoonist"

Handout 5B "Johnson v. Santa Clara Agency Cartoon"

Handout 5C "Johnson v. Santa Clara Agency: Your Decision"

Handout 5D "Johnson v. Santa Clara Agency: Supreme Court Decision"

 1-2 class periods

 Distribute Handout 5A, "You’re the Cartoonist." Have student complete the exercise on the handout, then have them explain/answer the following:

Show and describe the cartoon you’ve created.

Indicate how it includes the actions, values, and legal bases related to the case.

Distribute Handout 5B,"Johnson v. Santa Clara Agency Cartoon"

• What do we learn about the Johnson case from this cartoon?
• How does this cartoon compare to the one you created?
• According to this cartoon what are the actions, value, and legal bases related to this case?
• To what extent do you agree with the arguments raised by Johnson’s attorneys?
• To what extent do you agree with the arguments raised by the Santa Clara Agency’s attorneys?

Distribute Handout 5C, "Johnson v. Santa Clara Agency: Your Decision." Have students complete the exercise on the handout. After this assignment has been completed, have the class determine which of the decisions prepared by the students was the most convincing.

Students should research the arguments, pro and con, that were raised in the congressional debate over passage of Title VII of the Civil Rights Act of 1964. Then, have students simulate the debate that occurred? Allow students the opportunity to propose amendments to the bill. Finally, have the class take a vote on the Title VII developed by the class.

 Have students conduct a survey in their community to determine the degree to which women are still under represented in some jobs. Also, have students conduct survey the attitudes in their community towards affirmative action.

Based on multiple intelligence theory.

Linguistic: Have students engage in research to find additional cases addressing the issues of affirmative action, the Equal Protection Clause of the Fourteenth Amendment, and Title VII of the 1964 Civil Rights Act. Students can be introduced to the use of Sheppards in legal research and learn how to find the history and related cases to Johnson v. Santa Clara Transportation Agency.

Have students compare the decisions they wrote with the actual decision in Johnson v. Santa Clara Transportation Agency. What are the similarities? What are the differences? To what extent did the students, in their decisions, correctly identify the legal basis on which the actual case was decided?

Have students research the case of Regents of the University of California v. Bakke, 438 U.S. 265 (1978). Have students determine the similarities and differences between Bakke and Johnson. What has been the impact of the two decisions on providing greater opportunities in education and the workplace for women and minorities?

Logical/Mathematical: Students should gather statistical data demonstrating how successful affirmative action has been in increasing the presence of women and minorities in the workplace.

Have individual students conduct surveys in their community to determine how people feel about affirmative action, quotas and reverse discrimination. The class should then compare the findings of the various surveys by tabulating and analyzing results. Ask students whether the communities surveyed felt the same or different about these issues. Have students reach conclusions about the similarities and differences by using statistical data.

Kinesthetic: Students should use body movement and pantomime to express a position supporting or opposing affirmative action.

Students should role-play special interest groups who have a stake in Title VII of the Civil Rights Act. The groups should present supporting testimony and answer questions from the class.

Spatial: Students should explore magazines, books, and the picture collection in the library to gather photographs demonstrating the success of affirmative action programs in either education or the workplace, (e.g. old photographs of segregated classrooms and current photographs of multi-ethnic classrooms.

Intrapersonal: Students should write a diary entry explaining their feelings about affirmative action. In the diary, students should describe how they would feel if another student with lower grades was accepted into a college under an affirmative action program, that they had previously applied to but were rejected. Ask students how they feel about specific quotas.

Interpersonal: Divide the class into groups of equal size. Each group will discuss the facts, issues, values and related concepts of Johnson v. Santa Clara Transportation Agency, Regents of the University of California v. Bakke and Title VII of the Civil Rights Act of 1964. Group members will coach each other so that every student in the group is familiar with the information. The goal of this activity is to prepare each member of the group to participate in a tournament based on questions about the laws and cases. Students will then compete in teams at tournament tables and determine the winning team.

Distribute Handout 5.D, "Johnson v. Santa Clara Agency: Supreme Court Decision." Have students compare the decisions they wrote with the actual decisions. What are the similarities? What are the differences? To what extent did the students, in their decisions, correctly identify the legal basis on which the actual case was decided?

Have students research the case of Regents of the University of California v. Bakke, 438 U.S. 265 (1978). Have students compare the Bakke and Johnson cases. What are the similarities and differences? What has been the impact of the two decisions on providing greater opportunities in education and the work place for women and minorities?

You’re the Cartoonist

Directions: Assume you are a professional cartoonist. Your job is to develop a one page cartoon (use stick figures if necessary) about the Johnson v. Santa Clara Transportation Agency case, based on the notes that have been prepared for you on the page below. The cartoon should be similar to the type you’ve seen in the previous lesson [Arizona Governing Committee for Tax Deferred Annuity and Deferred Compensation Plans v. Norris (1983)]. The cartoon should consist of four frames and include: 1) a description of the facts that led to the case coming before the Supreme Court, 2) the constitutional issue raised by the case, and 3) the major legal arguments made by each side. [To designer: make notes appear as if they’ve been written on lined note cards.]

Notes: Johnson v. Santa Clara Transportation Agency

• Title VII of the Civil Rights Act of 1964, prohibits discrimination against employees on the basis of race, color, religion, sex, or national origin.

• 1978- Santa Clara County Transportation Agency adopts a temporary affirmative action plan with the goal of achieving a work force whose composition reflects the proportion of women and minorities in the labor force.

• The Transportation Agency’s affirmative action plan did not set aside a specific number or quota of positions for women and minorities. However, the plan recommended that sex or race be considered in hiring from a pool of qualified employees.

• 1979- A vacancy for job of road dispatcher is announced. Up to this time, no woman had ever held a road dispatcher’s position.

• Among others, Johnson, a male and Joyce, a female, apply for road dispatcher’s position. Both were certified as eligible, as determined by their scores on an interview. However, Johnson had a slightly higher score than Joyce.

• In support of the affirmative action plan, the Agency hires Joyce. Johnson sues the Agency. Eventually, case reaches the U.S. Supreme Court.

• The Agency argues before the Supreme Court: affirmative action plans don’t violate Title VII. They use sex or race for the purpose of ultimately eliminating discrimination. Moreover, both Joyce and Johnson were both qualified for the job. The agency’s affirmative action plan provides that in such situations sex or race may be considered.

• Johnson’s attorney argues before the Supreme Court: promoting Joyce over the more qualified Johnson, violates his rights to equal protection under the 14th Amendment as well as under Title VII of the 1964 Civil Rights Act.

Draw cartoon below:

Assume you are a Supreme Court Justice. Write the decision you would have rendered in the Johnson v. Santa Clara Agency case. Be sure to include in your decision the actions, values, and legal bases most appropriate to the case.

After reading the decision in the Johnson case below, complete the exercise that follows.

In 1978, the Santa Clara County Transportation Agency adopted a temporary affirmative action plan. The plan was adopted with the goal of achieving a work force whose composition reflected the proportion of women and minorities in the labor force. According to the plan, there was no specific number or quota of positions set aside for women and minorities. However, the plan recommended that sex or race be considered in hiring from a pool of qualified employees.

In 1979, a vacancy for a road dispatcher’s job was announced, a position that, up to that time, no woman had ever held. Among others, Johnson, a male and Joyce, a female, applied for the position. Both were certified as eligible to hold the position, as determined by their scores on an interview. However, Johnson had a slightly higher score than Joyce. In accordance with the affirmative action plan, the Agency decided to hire Joyce. Whereupon, Johnson brought an action claiming the plan violated Title VII of the Civil Rights Act of 1964 and his 14th Amendment right to equal protection of the law.

We hold that pursuant to Title VII of the Civil Rights Law of 1964, the affirmative action plan developed by the Santa Clara County Transportation Agency was appropriate in permitting the agency to remedy the imbalance between men and women in jobs such as that of road dispatcher. The plan established by the agency has flexible goals, not the kind that requires a quota, assuring that a certain number of jobs must go to women and minorities. While recognizing gender to be one of several factors considered, the plan requires women to compete for promotion with other qualified applicants. Because the plan authorizes the agency to select any one of the qualified applicants, Johnson has no absolute entitlement to promotion and therefore, should have had no such expectation. Furthermore, we find that the plan is a temporary measure designed to achieve a balanced work force, and is not intended to maintain a permanent sexual or racial balance, and does not impose a complete ban on male employees’ opportunities for advancement

Exercise: In the appropriate space below, indicate the actions, values, and legal bases that the Supreme Court cited in the Johnson decision appearing on this page.

Actions:

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Values:

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Legal Bases:

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