Statutory Interpretation
• Role and function of the judiciary?
• Textualism: statutory text; plain meaning
• Intentionalism: text; legislative history
• Purposivism: statutory purpose(s)
• Deference to administrative agencies
• Chevron or Skidmore deference
Affirmative Action—Title VII
• Title VII Sec. 703(a)
• Unlawful for an employer to “discriminate against any individual . . . because of
such individual’s race, color, religion, sex, or national origin”
• Title VII Sec. 703(d)
• Bans discrimination by labor organizations
Affirmative Action—Title VII
• Title VII Sec. 703(j): “Nothing contained in this title shall be
interpreted to require any employer . . . [or] labor organization . . . to
grant preferential treatment to any individual or group because of the
race, color, religion, sex, or national origin of such individual or group
on account of an imbalance which may exist with respect to the total
number or percentage of persons of any race, color, religion, sex, or
national origin employed by any employer . . . in comparison with the
total number or percentage of such persons . . . in any community,
State, section, or other area, or in the available work force in any
community, State, section, or other area.”
Affirmative Action—Title VII
• United Steelworkers of America v. Weber (U.S. 1979) (5-2 decision)
• Facts; issue
• Weber’s argument, based on a literal interpretation of Secs. 703(a) and
(d), “is not without force” but “is misplaced”
• The letter and “spirit” of a statute
• “Congress’ primary concern” in enacting Title VII?
Weber (cont.)
• The text and legislative history of Sec. 703(j)
• “Nothing in this title shall be interpreted to require . . . preferential treatment . . .”
• Sec. 703(j) “does not state that ‘nothing in Title VII shall be interpreted
to permit’” voluntary affirmative action. “The natural inference is that
Congress chose not to forbid all voluntary race-conscious affirmative
action.”
Weber (cont.)
• Permissible voluntary affirmative action by private employers
• (1) The purposes of the plan mirror the purposes of Title VII: “break
down old patterns of racial segregation and hierarchy” and open
employment opportunities in traditionally closed occupations
• (2) The plan does not “unnecessarily trammel” the interests of white
employees
• (3) The plan is temporary and is intended to attain, and not maintain,
racial balance
• Holding
Weber (cont.)
• Justice Blackmun’s concurrence
• The “arguable violation” theory
• Justice Rehnquist’s dissent
• The Court’s reading of Sec. 703(j) is “outlandish” and belied by the background
and purpose of that section
• “The plain language of the statute” prohibits granting preferential treatment to
minorities to correct racial imbalance
• “Congress outlawed all racial discrimination . . .”
• Most persuasive: Justice Brennan or Justice Rehnquist?
Affirmative Action—Title VII
• Johnson v. Transportation Agency, Santa Clara County (U.S. 1987)
• Nine applicants applied for promotion to road dispatcher position
• After interviews, 7 were certified as eligible for promotion; agency
director could choose any of the 7
• Paul Johnson ranked second with score of 75; Diane Joyce ranked third with score
of 73
• Three agency supervisors recommended Johnson; affirmative action
director recommended Joyce
Affirmative Action—Title VII
• Is there a “manifest imbalance” reflecting the underrepresentation of
women in a traditionally segregated job category?
• The comparison
• The difference between “manifest imbalance” and a prima facie case?
• The Weber requirements
• (1) Eliminate work force imbalance in traditionally segregated job category? (2)
Unnecessarily trammel the rights of male employees? (3) Temporary and not used
to maintain work force balance?
• Holding
Affirmative Action—The Constitution
• Wygant: plurality concluded that the remediation of “societal
discrimination” alone is not a sufficient justification for race-conscious
affirmative action
• Croson and Adarand: race-sensitive affirmative action plans are subject
to strict scrutiny judicial review
• (1) Compelling government interest: remediation of entity’s past discrimination or
diversity justification
• (2) Effectuated by narrowly tailored means
• Sex-conscious affirmative action plans: subject to intermediate scrutiny
(important governmental objectives/substantially related means)