Reference no: EM13789830

QUESTION 1

Should employers be able to recruit through employee referrals and word-of-mouth? Does the law allow for such a recruitment technique? What specific restrictions does Title VII place on an employer's ability to recruit and hire? As part of this discussion, refer to the cases of EEOC v. Chicago Miniature Lamp Works and EEOC v. Consolidated Service System.

EEOC v. Consolidated Service System 989 F.2d 233 (7th Cir. 1993)

Defendant is a small janitorial firm in Chicago owned by Mr. Hwang, a Korean immigrant, and staffed mostly by Koreans. The firm relied mainly on word-of-mouth recruiting. Between 1983 and 1987, 73 percent of the applicants for jobs and 81 percent of the hires were Korean, while less than 1 percent of the workforce in the Chicago area is Korean. The district court found that these discrepancies were not due to discrimination and the circuit court agreed.

Posner, J.

Consolidated is a small company. The EEOC's lawyer told us at argument that the company's annual sales are only $400,000. We mention this fact not to remind the reader of David and Goliath, or to suggest that Consolidated is exempt from Title VII (it is not), or to express wonderment that a firm of this size could litigate in federal court for seven years (and counting) with a federal agency, but to explain why Mr. Hwang relies on word of mouth to obtain employees rather than reaching out to a broader community less heavily Korean. It is the cheapest method of recruitment. Indeed, it is practically costless. Persons approach Hwang or his employees-most of whom are Korean too-at work or at social events, and once or twice Hwang has asked employees whether they know anyone who wants a job. At argument the EEOC's lawyer conceded, perhaps improvidently but if so only slightly so, that Hwang's recruitment posture could be described as totally passive. Hwang did buy newspaper advertisements on three occasions-once in a Korean-language newspaper and twice in the Chicago Tribune-but as these ads resulted in zero hires, the experience doubtless only confirmed him in the passive posture. The EEOC argues that the single Korean newspaper ad, which ran for only three days and yielded not a single hire, is evidence of discrimination. If so, it is very weak evidence. The Commission points to the fact 191192that Hwang could have obtained job applicants at no expense from the Illinois Job Service as further evidence of discrimination. But he testified that he had never heard of the Illinois Job Service and the district judge believed him.

If an employer can obtain all the competent workers he wants, at wages no higher than the minimum that he expects to have to pay, without beating the bushes for workers-without in fact spending a cent on recruitment-he can reduce his costs of doing business by adopting just the stance of Mr. Hwang. And this is no mean consideration to a firm whose annual revenues in a highly competitive business are those of a mom and pop grocery store. Of course if the employer is a member of an ethnic community, especially an immigrant one, this stance is likely to result in the perpetuation of an ethnically imbalanced workforce. Members of these communities tend to work and to socialize with each other rather than with people in the larger community. The social and business network of an immigrant community racially and culturally distinct from the majority of Americans is bound to be largely confined to that community, making it inevitable that when the network is used for job recruitment the recruits will be drawn disproportionately from the community.

No inference of intentional discrimination can be drawn from the pattern we have described, even if the employer would prefer to employ people drawn predominantly or even entirely from his own ethnic or, here, national-origin community. Discrimination is not preference or aversion; it is acting on the preference or aversion. If the most efficient method of hiring adopted because it is the most efficient (not defended because it is efficient-the statute does not allow an employer to justify intentional discrimination by reference to efficiency) just happens to produce a workforce whose racial or religious or ethnic or national-origin or gender composition pleases the employer, this is not intentional discrimination. The motive is not a discriminatory one. "Knowledge of a disparity is not the same thing as an intent to cause or maintain it." Or if, though, the motives behind adoption of the method were a mixture of discrimination and efficiency, Mr. Hwang would have adopted the identical method of recruitment even if he had no interest in the national origin of his employees, the fact that he had such an interest would not be a "but for" cause of the discriminatory outcome and again there would be no liability. There is no evidence that Hwang is biased in favor of Koreans or prejudiced against any group underrepresented in his workforce, except what the Commission asks us to infer from the imbalance in that force and Hwang's passive stance.

If this were a disparate-impact case (as it was once, but the Commission has abandoned its claim of disparate impact), and, if, contrary to EEOC v. Chicago Miniature Lamp Works, word of mouth recruitment were deemed an employment practice and hence was subject to review for disparate impact, as assumed in Clark v. Chrysler Corp., then the advantages of word-of-mouth recruitment would have to be balanced against its possibly discriminatory effect when the employer's current workforce is already skewed along racial or other disfavored lines. But in a case of disparate treatment, the question is different. It is whether word-of-mouth recruitment gives rise to an inference of intentional discrimination. Unlike an explicit racial or ethnic criterion or, what we may assume without deciding amounts to the same thing, a rule confining hiring to relatives of existing employees in a racially or ethnically skewed workforce, as in Thomas v. Washington County School Board, word-of-mouth recruiting does not compel an inference of intentional discrimination. At least it does not do so where, as in the case of Consolidated Services Systems, it is clearly, as we have been at pains to emphasize, the cheapest and most efficient method of recruitment, notwithstanding its discriminatory impact. Of course, Consolidated had some non-Korean applicants for employment, and if it had never hired any this would support, perhaps decisively, an inference of discrimination. Although the respective percentages of Korean and of non-Korean applicants hired were clearly favorable to Koreans (33 percent to 20 percent), the EEOC was unable to find a single person out of the 99 rejected non-Koreans who could show that he or she was interested in a job that Mr. Hwang ever hired for. Many, perhaps most, of these were persons who responded to the ad he placed in the Chicago Tribune for a contract that he never got, hence never hired for.

The Commission cites the statement of Consolidated's lawyer that his client took advantage of the fact that the Korean immigrant community offered a ready market of cheap labor as an admission of "active" discrimination on the basis of national origin. It is not discrimination, and it is certainly not active discrimination, for an employer to sit back and wait for people willing to work for low wages to apply to him. The fact that they are ethnically or racially uniform 192193does not impose upon him a duty to spend money advertising in the help-wanted columns of the Chicago Tribune. The Commission deemed Consolidated's "admission" corroborated by the testimony of the sociologist William Liu, Consolidated's own expert witness, who explained that it was natural for a recent Korean immigrant such as Hwang to hire other recent Korean immigrants, with whom he shared a common culture, and that the consequence would be a workforce disproportionately Korean. Well, of course. People who share a common culture tend to work together as well as marry together and socialize together. That is not evidence of illegal discrimination.

In a nation of immigrants, this must be reckoned an ominous case despite its outcome. The United States has many recent immigrants, and today as historically they tend to cluster in their own communities, united by ties of language, culture, and background. Often they form small businesses composed largely of relatives, friends, and other members of their community, and they obtain new employees by word of mouth. These small businesses-grocery stores, furniture stores, clothing stores, cleaning services, restaurants, gas stations-have been for many immigrant groups, and continue to be, the first rung on the ladder of American success. Derided as clannish, resented for their ambition and hard work, hated or despised for their otherness, recent immigrants are frequent targets of discrimination, some of it violent. It would be a bitter irony if the federal agency dedicated to enforcing the anti-discrimination laws succeeded in using those laws to kick these people off the ladder by compelling them to institute costly systems of hiring. There is equal danger to small black-run businesses in our central cities. Must such businesses undertake in the name of non-discrimination costly measures to recruit nonblack employees?

Although Consolidated has been dragged through seven years of federal litigation at outrageous expense for a firm of its size, we agree with the Commission that this suit was not frivolous. The statistical disparity gave the Commission a leg up, and it might conceivably have succeeded in its disparate-impact claim but for our intervening decision in EEOC v. Chicago Miniature Lamp Works, supra. Had the judge believed the Commission's witnesses, the outcome even of the disparate-treatment claim might have been different. The Equal Access to Justice Act was intended, one might have thought, for just such a case as this, where a groundless but not frivolous suit is brought by the mighty federal government against a tiny firm; but Consolidated concedes its inapplicability. We do not know on what the concession is based-possibly on cases like Escobar Ruiz v. INS, on rehearing, holding the Act inapplicable to statutes that have their own fee-shifting statutes-but other cases, such as Gavette v. Office of Personnel Management, are contra. It may not be too late for Consolidated to reconsider its concession in light of our holding in McDonald v. Schweiker, supra, regarding the deadline for seeking fees under the Act.

AFFIRMED.

QUESTION 2

Several students in previous classes have discussed that they may have been "passed over" in employment interviews because of being considered over qualified based on education or experience. In the current economy the supply of labor far exceeds the demand and employers can be more selective in whom they hire. Is this considered illegal discrimination or are employers unfettered in making these employment decisions that may appear to be discriminatory?

QUESTION 3

Affirmative action is a topic that tends to elicit strong opinions. Exhibit 5-11 in Chapter 5 sets forth opposing views on the issue of affirmative action. In our attempt to discuss affirmative action from an employer and employee perspective, please read United Steelworkers of America, AFL-CIO v. Weber and the discussion of Johnson v. Transportation Agency, Santa Clara County, California.

Referencing the materials in the text, explain affirmative action in conjunction with Title VII mandates from a legal perspective. What limits, if any, does Title VII place on affirmative action? How can companies manage affirmative action programs to encourage widespread recruitment, but avoid the stigma of quota systems as charged by affirmative action critics? Let's have a great academic, professional threaded discussion about affirmative action.

Local 28, Sheet Metal Workers v. EEOC 478 U.S. 421 (1986)

The union and its apprenticeship committee were found guilty of discrimination against Hispanics and African-Americans and were ordered to remedy the violations. They were found numerous times to be in contempt of the court's order, and after 18 years the court eventually imposed fines and an affirmative action plan as a remedy. The plan included benefits to persons not members of the union. The Supreme Court held the remedies to be appropriate under the circumstances.

Brennan, J.

 

Local 28 represents sheet metal workers employed by contractors in the New York City metropolitan area. The Local 28 Joint Apprenticeship Committee (JAC) is a labor-management committee which operates a 4-year apprenticeship training program designed to teach sheet metal skills. Apprentices enrolled in the program receive training both from classes and from on-the-job work experience. Upon completing the program, apprentices become journeyman members of Local 28. Successful completion of the program is the principal means of attaining union membership.

In 1964, the New York State Commission for Human Rights determined that the union and JAC had excluded African-Americans from the union and apprenticeship program in violation of state law. The Commission, among other things, found that the union had never had any black members or apprentices, and that "admission to apprenticeship is conducted largely on a nepot[is]tic basis involving sponsorship by incumbent union members," creating an impenetrable barrier for nonwhite applicants. The union and JAC were ordered to "cease and desist" their racially discriminatory practices. Over the next 18 years and innumerable trips to court, the union did not remedy the discrimination.

To remedy the contempt and the union's refusal to comply with court orders, the court imposed a 29 percent nonwhite membership goal to be met by a certain date, and a $150,000 fine to be placed in a fund designed to increase nonwhite membership in the apprenticeship program and the union. The fund was used for a variety of purposes, including

• Providing counseling and tutorial services to nonwhite apprentices, giving them benefits that had traditionally been available to white apprentices from family and friends.

• Providing financial support to employers otherwise unable to hire a sufficient number of apprentices.

• Providing matching funds to attract additional funding for job-training programs.

• Creating part-time and summer sheet metal jobs for qualified nonwhite youths.

• Extending financial assistance to needy apprentices.

• Paying for nonwhite union members to serve as liaisons to vocational and technical schools with sheet metal programs in order to increase the pool of qualified nonwhite applicants for the apprenticeship program.

The union appealed the remedy. Principally, the parties maintain that the Fund and goal exceeds the scope of remedies available under Title VII because it extends race-conscious preferences to individuals who are not the identified victims of their unlawful discrimination. They argue that section 706(g) authorizes a district court to 247248award preferential relief only to actual victims of unlawful discrimination. They maintain that the goal and Fund violates this provision since it requires them to extend benefits to black and Hispanic individuals who are not the identified victims of unlawful discrimination. We reject this argument and hold that section 706(g) does not prohibit a court from ordering, in appropriate circumstances, affirmative race-conscious relief as a remedy for past discrimination. Specifically, we hold that such relief may be appropriate where an employer or a labor union has engaged in persistent or egregious discrimination, or where necessary to dissipate the lingering effects of pervasive discrimination.

The availability of race-conscious affirmative relief under section 706(g) as a remedy for a violation of Title VII furthers the broad purposes underlying the statute. Congress enacted Title VII based on its determination that racial minorities were subject to pervasive and systematic discrimination in employment. It was clear to Congress that the crux of the problem was "to open employment opportunities for Negroes in occupations which have been traditionally closed to them and it was to this problem that Title VII's prohibition against racial discrimination was primarily addressed." Title VII was designed to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees. In order to foster equal employment opportunities, Congress gave the lower courts broad power under section 706(g) to fashion the most complete relief possible to remedy past discrimination.

In most cases, the court need only order the employer or union to cease engaging in discriminatory practices, and award make-whole relief to the individuals victimized by those practices. In some instances, however, it may be necessary to require the employer or union to take affirmative steps to end discrimination effectively to enforce Title VII. Where an employer or union has engaged in particularly longstanding or egregious discrimination, an injunction simply reiterating Title VII's prohibition against discrimination will often prove useless and will only result in endless enforcement litigation. In such cases, requiring a recalcitrant employer or unions to hire and to admit qualified minorities roughly in proportion to the number of qualified minorities in the workforce may be the only effective way to ensure the full enjoyment of the rights protected by Title VII.

Further, even where the employer or union formally ceases to engage in discrimination, informal mechanisms may obstruct equal employment opportunities. An employer's reputation for discrimination may discourage minorities from seeking available employment. In these circumstances, affirmative race-conscious relief may be the only means available to assure equality of employment opportunities and to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens. Affirmative action promptly operates to change the outward and visible signs of yesterday's racial distinctions and thus, to provide an impetus to the process of dismantling the barriers, psychological or otherwise, erected by past practices.

Finally, a district court may find it necessary to order interim hiring or promotional goals pending the development of non-discriminatory hiring or promotion procedures. In these cases, the use of numerical goals provides a compromise between two unacceptable alternatives: an outright ban on hiring or promotions, or continued use of a discriminatory selection procedure.

We have previously suggested that courts may utilize certain kinds of racial preferences to remedy past discrimination under Title VII. The Courts of Appeals have unanimously agreed that racial preferences may be used, in appropriate cases, to remedy past discrimination under Title VII. The extensive legislative history of the Act supports this view. Many opponents of Title VII argued that an employer could be found guilty of discrimination under the statute simply because of a racial imbalance in his workforce, and would be compelled to implement racial "quotas" to avoid being charged with liability. At the same time, supporters of the bill insisted that employers would not violate Title VII simply because of racial imbalance, and emphasized that neither the EEOC nor the courts could compel employers to adopt quotas solely to facilitate racial balancing. The debate concerning what Title VII did and did not require culminated in the adoption of section 703(j), which stated expressly that the statute did not require an employer or labor union to adopt quotas or preferences simply because of a racial imbalance.

Although we conclude that section 706(g) does not foreclose a court from instituting some sort of racial preferences where necessary to remedy past discrimination, we do not mean to suggest such relief is always proper. The court should exercise its discretion with an eye towards Congress' concern that the measures not be invoked simply to create a racially balanced workforce. In the majority of cases the court will not have to impose affirmative action as a remedy for past discrimination, but 248249need only order the employer or union to cease engaging in discriminatory practices. However, in some cases, affirmative action may be necessary in order effectively to enforce Title VII, such as with persistent or egregious discrimination or to dissipate the effects of pervasive discrimination. The court should also take care to tailor its orders to fit the nature of the violation it seeks to correct.

Here, the membership goal and Fund were necessary to remedy the union and JAC's pervasive and egregious discrimination and its lingering effects. The goal was flexible and thus gives a strong indication that it was not being used simply to achieve and maintain racial balance, but rather as a benchmark against which the court could gauge the union's efforts. Twice the court adjusted the deadline for the goal and has continually approved changes in the size of apprenticeship classes to account for economic conditions preventing the union from meeting its targets. And it is temporary in that it will end as soon as the percentage of minority union members approximates the percentage of minorities in the local labor force. Similarly the fund is scheduled to terminate when the union achieves its membership goal and the court determines it is no longer needed to remedy past discrimination. Also, neither the goal nor the fund unnecessarily trammels the interests of white employees. They do not require any union members to be laid off, and do not discriminate against existing union members. While whites seeking admission into the union may be denied benefits extended to nonwhite counterparts, the court's orders do not stand as an absolute bar to such individuals; indeed a majority of new union members have been white. Many of the provisions of the orders are race-neutral (such as the requirement that the JAC assign one apprenticeship for every four journeymen workers) and the union and JAC remain free to adopt the provisions of the order for the benefit of white members and applicants. Accordingly, we AFFIRM.

Johnson v. Transportation Agency, Santa Clara County, California 480 U.S. 616 (1987)

A female was promoted over a male pursuant to an affirmative action plan voluntarily adopted by the employer to address a traditionally segregated job classification in which women had been significantly underrepresented. A male employee who also applied for the job sued, alleging it was illegal discrimination under Title VII for the employer to consider gender in the promotion process. The U.S. Supreme Court upheld the promotion under the voluntary affirmative action plan. It held that since it was permissible for a public employer to adopt such a voluntary plan, the plan was reasonable, and since the criteria for the plan had been met, gender could be considered as one factor in the promotion.

Brennan, J.

 

In December 1978, the Santa Clara County Transit District Board of Supervisors adopted an Affirmative Action Plan (Plan) for the County Transportation Agency. The Plan implemented a County Affirmative Action Plan, which had been adopted because "mere prohibition of discriminatory practices is not enough to remedy the effects of past practices and to permit attainment of an equitable representation of minorities, women and handicapped persons." Relevant to this case, the Agency Plan provides that, in making promotions to positions within a traditionally segregated job classification in which women have been significantly underrepresented, the Agency is authorized to consider as one factor the sex of a qualified applicant.

 

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In reviewing the composition of its workforce, the Agency noted in its Plan that women were represented in numbers far less than their proportion of the County labor force in both the Agency as a whole and in five of seven job categories. Specifically, while women constituted 36.4 percent of the area labor market, they composed only 22.4 percent of Agency employees. Furthermore, women working at the Agency were concentrated largely in EEOC job categories traditionally held by women: women made up 76 percent of Office and Clerical Workers, but only 7.1 percent of Agency Officials and Administrators, 8.6 percent of Professionals, 9.7 percent of Technicians, and 22 percent of Service and Maintenance Workers. As for the job classification relevant to this case, none of the 238 Skilled Craft Worker positions was held by a woman. The Plan noted that this underrepresentation of women in part reflected the fact that women had not traditionally been employed in these positions, and that they had not been strongly motivated to seek training or employment in them "because of the limited opportunities that have existed in the past for them to work in such classifications." The Plan also observed that, while the proportion of ethnic minorities in the Agency as a whole exceeded the proportion of such minorities in the County workforce, a smaller percentage of minority employees held management, professional, and technical positions.

The Agency stated that its Plan was intended to achieve "a statistically measurable yearly improvement in hiring, training and promotion of minorities and women throughout the Agency in all major job classifications where they are underrepresented." As a benchmark by which to evaluate progress, the Agency stated that its long-term goal was to attain a workforce whose composition reflected the proportion of minorities and women in the area labor force. Thus, for the Skilled Craft category in which the road dispatcher position at issue here was classified, the Agency's aspiration was that eventually about 36 percent of the jobs would be occupied by women.

The Agency's Plan thus set aside no specific number of positions for minorities or women, but authorized the consideration of ethnicity or sex as a factor when evaluating qualified candidates for jobs in which members of such groups were poorly represented. One such job was the road dispatcher position that is the subject of the dispute in this case.

The Agency announced a vacancy for the promotional position of road dispatcher in the Agency's Roads Division. Twelve County employees applied for the promotion, including Joyce and Johnson. Nine of the applicants, including Joyce and Johnson, were deemed qualified for the job, and were interviewed by a two-person board. Seven of the applicants scored above 70 on this interview, which meant that they were certified as eligible for selection by the appointing authority. The scores awarded ranged from 70 to 80. Johnson was tied for second with a score of 75, while Joyce ranked next with a score of 73. A second interview was conducted by three Agency supervisors, who ultimately recommended that Johnson be promoted.

James Graebner, Director of the Agency, concluded that the promotion should be given to Joyce. As he testified: "I tried to look at the whole picture, the combination of her qualifications and Mr. Johnson's qualifications, their test scores, their expertise, their background, affirmative action matters, things like that ... I believe it was a combination of all those."

The certification form naming Joyce as the person promoted to the dispatcher position stated that both she and Johnson were rated as well qualified for the job. The evaluation of Joyce read: "Well qualified by virtue of 18 years of past clerical experience including 3½ years at West Yard plus almost 5 years as a [road maintenance worker]." The evaluation of Johnson was as follows: "Well qualified applicant; two years of [road maintenance worker] experience plus 11 years of Road Yard Clerk. Has had previous outside Dispatch experience but was 13 years ago." Graebner testified that he did not regard as significant the fact that Johnson scored 75 and Joyce 73 when interviewed by the two-person board.

Johnson filed a complaint with the EEOC alleging that he had been denied promotion on the basis of sex in violation of Title VII.

In reviewing the employment decision at issue in this case, we must first examine whether consideration of the sex of applicants for Skilled Craft jobs was justified by the existence of a "manifest imbalance" that reflected underrepresentation of women in "traditionally segregated job categories." In determining whether an imbalance exists that would justify taking sex or race into account, a comparison of the percentage of minorities or women in the employer's work force with the percentage in the area labor market or general population is appropriate in analyzing jobs that require no special expertise or training programs designed to provide expertise. Where a job requires special training, however, the comparison should be with those in the labor force 250251who possess the relevant qualifications. The requirement that the "manifest imbalance" relate to a "traditionally segregated job category" provides assurance both that sex or race will be taken into account in a manner consistent with Title VII's purpose of eliminating the effects of employment discrimination, and that the interests of those employees not benefitting from the plan will not be unduly infringed.

It is clear that the decision to hire Joyce was made pursuant to an Agency plan that directed that sex or race be taken into account for the purpose of remedying underrepresentation. The Agency Plan acknowledged the "limited opportunities that have existed in the past," for women to find employment in certain job classifications "where women have not been traditionally employed in significant numbers." As a result, observed the Plan, women were concentrated in traditionally female jobs in the Agency, and represented a lower percentage in other job classifications than would be expected if such traditional segregation had not occurred. Specifically, 9 of the 10 Para-Professionals and 110 of the 145 Office and Clerical Workers were women. By contrast, women were only 2 of the 28 Officials and Administrators, 5 of the 58 Professionals, 12 of the 124 Technicians, none of the Skilled Craft Workers, and 1-who was Joyce-of the 110 Road Maintenance Workers. The Plan sought to remedy these imbalances through "hiring, training and promotion of ... women throughout the Agency in all major job classifications where they are underrepresented."

The Agency adopted as a benchmark for measuring progress in eliminating underrepresentation the long-term goal of a workforce that mirrored in its major job classifications the percentage of women in the area labor market. Even as it did so, however, the Agency acknowledged that such a figure could not by itself necessarily justify taking into account the sex of applicants for positions in all job categories. For positions requiring specialized training and experience, the Plan observed that the number of minorities and women "who possess the qualifications required for entry into such job classifications is limited." The Plan therefore directed that annual short-term goals be formulated that would provide a more realistic indication of the degree to which sex should be taken into account in filling particular positions. The Plan stressed that such goals "should not be construed as ‘quotas' that must be met," but as reasonable aspirations in correcting the imbalance in the Agency's workforce. These goals were to take into account factors such as "turnover, layoffs, lateral transfers, new job openings, retirements and availability of minorities, women and handicapped persons in the area workforce who possess the desired qualifications or potential for placement." The Plan specifically directed that, in establishing such goals, the Agency work with the County Planning Department and other sources in attempting to compile data on the percentage of minorities and women in the local labor force that were actually working in the job classifications constituting the Agency workforce. From the outset, therefore, the Plan sought annually to develop even more refined measures of the underrepresentation in each job category that required attention.

As the Agency Plan recognized, women were most egregiously underrepresented in the Skilled Craft job category, since none of the 238 positions was occupied by a woman. In mid-1980, when Joyce was selected for the road dispatcher position, the Agency was still in the process of refining its short-term goals for Skilled Craft Workers in accordance with the directive of the Plan. This process did not reach fruition until 1982, when the Agency established a short-term goal for that year of 3 women for the 55 expected openings in that job category-a modest goal of about 6 percent for that category.

The Agency's Plan emphasized that the long-term goals were not to be taken as guides for actual hiring decisions, but that supervisors were to consider a host of practical factors in seeking to meet affirmative action objectives, including the fact that in some job categories women were not qualified in numbers comparable to their representation in the labor force.

By contrast, had the Plan simply calculated imbalances in all categories according to the proportion of women in the area labor pool, and then directed that hiring be governed solely by those figures, its validity fairly could be called into question. This is because analysis of a more specialized labor pool normally is necessary in determining underrepresentation in some positions. If a plan failed to take distinctions in qualifications into account in providing guidance for actual employment decisions, it would dictate mere blind hiring by the numbers, for it would hold supervisors to "achievement of a particular percentage of minority employment or membership ... regardless of circumstances such as economic conditions or the number of available qualified minority applicants ...."

The Agency's Plan emphatically did not authorize such blind hiring. It expressly directed that numerous factors be taken into account in making hiring decisions, including specifically the qualifications of female applicants 251252for particular jobs. The Agency's management had been clearly instructed that they were not to hire solely by reference to statistics. The fact that only the long-term goal had been established for this category posed no danger that personnel decisions would be made by reflexive adherence to a numerical standard.

Furthermore, in considering the candidates for the road dispatcher position in 1980, the Agency hardly needed to rely on a refined short-term goal to realize that it had a significant problem of underrepresentation that required attention. Given the obvious imbalance in the Skilled Craft category, and given the Agency's commitment to eliminating such imbalances, it was plainly not unreasonable for the Agency to determine that it was appropriate to consider as one factor the sex of Ms. Joyce in making its decision. The promotion of Joyce thus satisfies the first requirement since it was undertaken to further an affirmative action plan designed to eliminate Agency workforce imbalances in traditionally segregated job categories.

We next consider whether the Agency Plan unnecessarily trammeled the rights of male employees or created an absolute bar to their advancement. The Plan sets aside no positions for women. The Plan expressly states that "[t]he ‘goals' established for each Division should not be construed as ‘quotas' that must be met." Rather, the Plan merely authorizes that consideration be given to affirmative action concerns when evaluating qualified applicants. As the Agency Director testified, the sex of Joyce was but one of numerous factors he took into account in arriving at his decision. The Plan thus resembles the "Harvard Plan" approvingly noted in Regents of University of California v. Bakke, which considers race along with other criteria in determining admission to the college. As the Court observed: "In such an admissions program, race or ethnic background may be deemed a ‘plus' in a particular applicant's file, yet it does not insulate the individual from comparison with all other candidates for the available seats." Similarly, the Agency Plan requires women to compete with all other qualified applicants. No persons are automatically excluded from consideration; all are able to have their qualifications weighed against those of other applicants.

In addition, Johnson had no absolute entitlement to the road dispatcher position. Seven of the applicants were classified as qualified and eligible, and the Agency Director was authorized to promote any of the seven. Thus, denial of the promotion unsettled no legitimate, firmly rooted expectation on the part of Johnson. Furthermore, while Johnson was denied a promotion, he retained his employment with the Agency, at the same salary and with the same seniority, and remained eligible for other promotions.

Finally, the Agency's Plan was intended to attain a balanced workforce not to maintain one. The Plan contains 10 references to the Agency's desire to "attain" such a balance, but no reference whatsoever to a goal of maintaining it. The Director testified that, while the "broader goal" of affirmative action, defined as "the desire to hire, to promote, to give opportunity and training on an equitable, non-discriminatory basis," is something that is "a permanent part" of "the Agency's operating philosophy," that broader goal "is divorced, if you will, from specific numbers or percentages." The Agency acknowledged the difficulties that it would confront in remedying the imbalance in its workforce, and it anticipated only gradual increases in the representation of minorities and women. It is thus unsurprising that the Plan contains no explicit end date, for the Agency's flexible, case-by-case approach was not expected to yield success in a brief period of time.

Express assurance that a program is only temporary may be necessary if the program actually sets aside positions according to specific numbers. This is necessary both to minimize the effect of the program on other employees, and to ensure that the plan's goals "[are] not being used simply to achieve and maintain ... balance, but rather as a benchmark against which" the employer may measure its progress in eliminating the underrepresentation of minorities and women. In this case, however, substantial evidence shows that the Agency has sought to take a moderate, gradual approach to eliminating the imbalance in its workforce, one which establishes realistic guidance for employment decisions, and which visits minimal intrusion on the legitimate expectations of other employees. Given this fact, as well as the Agency's express commitment to "attain" a balanced workforce, there is ample assurance that the Agency does not seek to use its Plan to maintain a permanent racial and sexual balance.

In evaluating the compliance of an affirmative action plan with Title VII's prohibition on discrimination, we must be mindful of "this Court's and Congress's consistent emphasis on ‘the value of voluntary efforts to further the objectives of the law.'" The Agency in the case before us has undertaken such a voluntary effort, and has done so in full recognition of both the difficulties and the potential for intrusion on males and nonminorities. The Agency has 252253identified a conspicuous imbalance in job categories traditionally segregated by race and sex. It has made clear from the outset, however, that employment decisions may not be justified solely by reference to this imbalance, but must rest on a multitude of practical, realistic factors. It has therefore committed itself to annual adjustment of goals so as to provide a reasonable guide for actual hiring and promotion decisions. The Agency earmarks no positions for anyone; sex is but one of several factors that may be taken into account in evaluating qualified applicants for a position. As both the Plan's language and its manner of operation attest, the Agency has no intention of establishing a workforce whose permanent composition is dictated by rigid numerical standards.

We therefore hold that the Agency appropriately took into account as one factor the sex of Diane Joyce in determining that she should be promoted to the road dispatcher position. The decision to do so was made pursuant to an affirmative action plan that represents a moderate, flexible, case-by-case approach to effecting a gradual improvement in the representation of minorities and women in the Agency's workforce. Such a plan is fully consistent with Title VII, for it embodies the contribution that voluntary employer action can make in eliminating the vestiges of discrimination in the workplace. Accordingly, the judgment of the Court of Appeals is AFFIRMED.

QUESTION 4

There are some interesting aspects of this subject regarding some employers who may "discriminate" based on factors other than those protected by the existing statutes such as Title VII. Can an employer use factors such as weight, height, physical attractiveness, etc. as legitimate considerations in employment decisions since they are not considered "illegal" acts of discrimination? Explain.