1. What do you think of the court’s decision in this case? Does it make sense to you? Why or why not?
2. If you disagree with the Court’s decision, what would you as the employer have done instead?
3. Are the Court’s considerations for how to institute an acceptable affirmative action program consistent with how you thought affirmative action worked? Explain.

Issue: Whether a public employer could institute a voluntary affirmative action plan to address traditionally segregated job classifications in its firm where women were significantly underrepresented.

Facts: A male employee sued the agency when a female with similar qualifications as his was promoted instead of him pursuant to a voluntary affirmative action plan adopted by the employer to remedy significant under representation of females in the workplace. The agency’s plan was adopted after the agency reviewed its work force composition and noted that women were represented in numbers far less than their proportion of the county labor force in the agency as a whole and in five of seven job categories. Women were 36.4 percent of the area labor market, but 22.4 percent of the agency employees. Women working at the agency were concentrated largely in jobs traditionally held by women, i.e., women were 76 percent of the office and clerical workers, but only 7.1 percent of the agency officials and administrators, 8.6 percent of professionals and 9.7 percent of technicians. None of the 238 skilled craft workers were women. The agency noted that this was in part, because women were not traditionally employed in these positions and had not been strongly motivated to seek training or employment in them because of the history of limited opportunities. The agency’s plan did not set aside a specific number of positions for minorities or women, but authorized consideration of ethnicity or gender as a factor when evaluating qualified candidates for jobs in which such groups were poorly represented. The agency performed a yearly review of its goals in order to adjust them based on relevant factors, so that it was not a rigid document, but rather, one which took into account the specifics of the agency’s reality.

Decision: Yes, an employer can institute such a plan and use gender as a factor in promotion as long as that plan meets certain requirements such as:

• It does not unnecessarily trammel male employees’ rights or create an absolute bar to their advancement,
• It sets aside no positions for women and expressly states that its goals should not be construed as quotas which must be met.
• It unsettles no legitimate, firmly rooted expectation of plaintiff.
• It is only temporary and is for the purpose of attaining, not maintaining a balanced workforce.

There is minimal intrusion into the legitimate, settled expectations of other employees.