Appeal from the United States District Court for the District of New Jersey
(D.C. Civil No. 92-cv-00340) Argued November 29, 1995
Before: SLOVITER, *fn1 Chief Judge, MANSMANN and MCKEE, Circuit Judges.
Before: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN, GREENBERG, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS, McKEE and SAROKIN, *fn2 Circuit Judges.
In this Title VII matter, we must determine whether the Board of Education of the Township of Piscataway violated that statute when it made race a factor in selecting which of two equally qualified employees to lay off. Specifically, we must decide whether Title VII permits an employer with a racially balanced work force to grant a non-remedial racial preference in order to promote "racial diversity".
It is clear that the language of Title VII is violated when an employer makes an employment decision based upon an employee's race. The Supreme Court determined in United Steelworkers v. Weber, 443 U.S. 193 (1979), however, that Title VII's prohibition against racial discrimination is not violated by affirmative action plans which first, "have purposes that mirror those of the statute" and second, do not "unnecessarily trammel the interests of the [non-minority] employees," id. at 208.
We hold that Piscataway's affirmative action policy is unlawful because it fails to satisfy either prong of Weber. Given the clear antidiscrimination mandate of Title VII, a non-remedial affirmative action plan, even one with a laudable purpose, cannot pass muster. We will affirm the district court's grant of summary judgment to Sharon Taxman.
In 1975, the Board of Education of the Township of Piscataway, New Jersey, developed an affirmative action policy applicable to employment decisions. The Board's Affirmative Action Program, a 52-page document, was originally adopted in response to a regulation promulgated by the New Jersey State Board of Education. That regulation directed local school boards to adopt "affirmative action programs," N.J. Admin. Code Tit. 6 Section(s) 6:4-1.3(b), to address employment as well as school and classroom practices and to ensure equal opportunity to all persons regardless of race, color, creed, religion, sex or national origin. N.J. Admin. Code Tit. 6 Section(s) 6:4-1.5, 6:4-1.6(a). In 1983 the Board also adopted a one page "Policy", entitled "Affirmative Action - Employment Practices." It is not clear from the record whether the "Policy" superseded or simply added to the "Program," nor does it matter for purposes of this appeal.
The 1975 document states that the purpose of the Program is "to provide equal educational opportunity for students and equal employment opportunity for employees and prospective employees," and "to make a concentrated effort to attract . . . minority personnel for all positions so that their qualifications can be evaluated along with other candidates." The 1983 document states that its purpose is to "ensure equal employment opportunity . . . and prohibit discrimination in employment because of [,inter alia,] race. . . ." The operative language regarding the means by which affirmative-action goals are to be furthered is identical in the two documents. "In all cases, the most qualified candidate will be recommended for appointment. However, when candidates appear to be of equal qualification, candidates meeting the criteria of the affirmative action program will be recommended." The phrase "candidates meeting the criteria of the affirmative action program" refers to members of racial, national origin or gender groups identified as minorities for statistical reporting purposes by the New Jersey State Department of Education, including Blacks. The 1983 document also clarifies that the affirmative action program applies to "every aspect of employment including . . . layoffs . . . ." *fn4
The Board's affirmative action policy did not have "any remedial purpose"; it was not adopted "with the intention of remedying the results of any prior discrimination or identified under-representation of minorities within the Piscataway Public School System." At all relevant times, Black teachers were neither "underrepresented" nor "underutilized" in the Piscataway School District work force. *fn5 Indeed, statistics in 1976 and 1985 showed that the percentage of Black employees in the job category which included teachers exceeded the percentage of Blacks in the available work force.
In May, 1989, the Board accepted a recommendation from the Superintendent of Schools to reduce the teaching staff in the Business Department at Piscataway High School by one. At that time, two of the teachers in the department were of equal seniority, both having begun their employment with the Board on the same day nine years earlier. One of those teachers was intervenor plaintiff Sharon Taxman, who is White, and the other was Debra Williams, who is Black. Williams was the only minority teacher among the faculty of the Business Department.
Decisions regarding layoffs by New Jersey school boards are highly circumscribed by state law; non-tenured faculty must be laid off first, and layoffs among tenured teachers in the affected subject area or grade level must proceed in reverse order of seniority. N.J. Stat. Ann. Section(s) 18A:28-9 et seq. Seniority for this purpose is calculated according to specific guidelines set by state law. N.J. Stat. Ann. 18A:28-10; N.J. Admin. Code Tit. 6 Section(s) 6:3-5.1. Thus, local boards lack discretion to choose between employees for layoff, except in the rare instance of a tie in seniority between the two or more employees eligible to fill the last remaining position.
The Board determined that it was facing just such a rare circumstance in deciding between Taxman and Williams. In prior decisions involving the layoff of employees with equal seniority, the Board had broken the tie through "a random process which included drawing numbers out of a container, drawing lots or having a lottery." *fn6 In none of those instances, however, had the employees involved been of different races.
In light of the unique posture of the layoff decision, Superintendent of Schools Burton Edelchick recommended to the Board that the affirmative action plan be invoked in order to determine which teacher to retain. Superintendent Edelchick made this recommendation "because he believed Ms. Williams and Ms. Taxman were tied in seniority, were equally qualified, and because Ms. Williams was the only Black teacher in the Business Education Department." While the Board recognized that it was not bound to apply the affirmative action policy, it made a discretionary decision to invoke the policy to break the tie between Williams and Taxman. As a result, the Board "voted to terminate the employment of Sharon Taxman, effective June 30, 1988. . . ." At her deposition, Paula Van Riper, the Board's Vice President at the time of the layoff, described the Board's decision-making process. According to Van Riper, after the Board recognized that Taxman and Williams were of equal seniority, it assessed their classroom performance, evaluations, volunteerism and certifications and determined that they were "two teachers of equal ability" and "equal qualifications." At his deposition Theodore H. Kruse, the Board's President, explained his vote to apply the affirmative action policy as follows:
A. Basically I think because I had been aware that the student body and the community which is our responsibility, the schools of the community, is really quite diverse and there -- I have a general feeling during my tenure on the board that it was valuable for the students to see in the various employment roles a wide range of background, and that it was also valuable to the work force and in particular to the teaching staff that they have -- they see that in each other.
Asked to articulate the "educational objective" served by retaining Williams rather than Taxman, Kruse stated:
A. In my own personal perspective I believe by retaining Mrs. Williams it was sending a very clear message that we feel that our staff should be culturally diverse, our student population is culturally diverse and there is a distinct advantage to students, to all students, to be made -- come into contact with people of different cultures, different background, so that they are more aware, more tolerant, more accepting, more understanding of people of all background.
Q. What do you mean by the phrase you used, culturally diverse?
A. Someone other than -- different than yourself. And we have, our student population and our community has people of all different background, ethnic background, religious background, cultural background, and it's important that our school district encourage awareness and acceptance and tolerance and, therefore, I personally think it's important that our staff reflect that too.
Following the Board's decision, Taxman filed a charge of employment discrimination with the Equal Employment Opportunity Commission. Attempts at conciliation were unsuccessful, and the United States filed suit under Title VII against the Board in the United States District Court for the District of New Jersey. *fn7 Taxman intervened, asserting claims under both Title VII and the New Jersey Law Against Discrimination (NJLAD).
Following discovery, the Board moved for summary judgment and the United States and Taxman cross-moved for partial summary judgment only as to liability. The district court denied the Board's motion and granted partial summary judgment to the United States and Taxman, holding the Board liable under both statutes for discrimination on the basis of race. United States v. Board of Educ. of Township Piscataway, 832 F. Supp. 836, 851 (D.N.J. 1993).
A trial proceeded on the issue of damages. By this time, Taxman had been rehired by the Board and thus her reinstatement was not an issue. The court awarded Taxman damages in the amount of $134,014.62 for backpay, fringe benefits and prejudgment interest under Title VII. A jury awarded an additional $10,000 for emotional suffering under the NJLAD. The district court denied the United States' request for a broadly worded injunction against future discrimination, finding that there was no likelihood that the conduct at issue would recur, but it did order the Board to give Taxman full seniority reflecting continuous employment from 1980. Additionally, the court dismissed Taxman's claim for punitive damages under the NJLAD.
The Board appealed, contending that the district court erred in granting Taxman summary judgment as to liability. The Board also contends, in the alternative, that the court erred in awarding Taxman 100% backpay and in awarding prejudgment interest at the IRS rate rather than under 28 U.S.C. Section(s) 1961. Taxman cross-appealed, contending that the district court erred in dismissing her claim for punitive damages. Subsequently, the United States sought leave to file a brief as amicus curiae in support of reversal of the judgment, representing that it could no longer support the judgment of the district court. By order of November 17, 1995, we denied the United States' request. We treated the position of the United States at the original argument before this court on January 24, 1995, as a motion to withdraw as a party, which we granted. Thus, the only parties before us on this appeal are the Board and Taxman.
This court has jurisdiction over the appeals under 28 U.S.C. 1291. Our review of the district court's decision on summary judgment is plenary. Waldron v. SL Industries, 56 F.3d 491, 496 (3d Cir. 1995).
In relevant part, Title VII makes it unlawful for an employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment" or "to limit, segregate, or classify his employees . . . in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise affect his status as an employee" on the basis of "race, color, religion, sex, or national origin." *fn8 42 U.S.C. Section(s) 2000e-2(a). For a time, the Supreme Court construed this language as absolutely prohibiting discrimination in employment, neither requiring nor permitting any preference for any group. Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 643 (1987) (Stevens, J., concurring) (citing, inter alia, Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971), and McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 280 (1976)).
In 1979, however, the Court interpreted the statute's "antidiscriminatory strategy" in a "fundamentally different way", id. at 644, holding in the seminal case of United Steelworkers v. Weber, 433 U.S. 193 (1979), that Title VII's prohibition against racial discrimination does not condemn all voluntary race-conscious affirmative action plans. In Weber, the Court considered a plan implemented by Kaiser Aluminum & Chemical Corporation. Prior to 1974, Kaiser hired as craftworkers only those with prior craft experience. Id. at 198. Because they had long been excluded from craft unions, Blacks were unable to present the credentials required for craft positions. Id. Moreover, Kaiser's hiring practices, although not admittedly discriminatory with regard to minorities, were questionable. Id. at 210. As a consequence, while the local labor force was about 39% Black, Kaiser's labor force was less than 15% Black and its crafts-work force was less than 2% Black. Id. at 198. In 1974, Kaiser entered into a collective bargaining agreement which contained an affirmative action plan. The plan reserved 50% of the openings in an in-plant craft-training program for Black employees until the percentage of Black craft-workers in the plant reached a level commensurate with the percentage of Blacks in the local labor force. Id. at 198. During the first year of the plan's operation, 13 craft-trainees were selected, seven of whom were Black and six of whom were White. Id. at 199.
Thereafter, Brian Weber, a White production worker, filed a class action suit, alleging that the plan unlawfully discriminated against White employees under Title VII. Relying upon a literal reading of subsections 2000-3(2)(a) and (d) *fn9 of the Act, 42 U.S.C. S 2000e-2(a), (d), and upon the Court's decision in McDonald v. Santa Fe Trail Transp. Co., 427 U.S. at 273, where the Court held that Title VII forbids discrimination against Whites as well as Blacks, the plaintiffs argued that it necessarily followed that the Kaiser plan, which resulted in junior Black employees receiving craft training in preference to senior White employees, violated Title VII. Id. at 199. The district court agreed and entered a judgment in favor of the plaintiffs; the Court of Appeals for the Fifth Circuit affirmed. Id. at 200.
The Supreme Court, however, reversed, noting initially that although the plaintiffs' argument was not "without force", it disregarded "the significance of the fact that the Kaiser-USWA plan was an affirmative action plan voluntarily adopted by private parties to eliminate traditional patterns of racial segregation." Id. at 201. The Court then embarked upon an exhaustive review of Title VII's legislative history and identified Congress' concerns in enacting Title VII's prohibition against discrimination -- the deplorable status of Blacks in the nation's economy, racial injustice, and the need to open employment opportunities for Blacks in traditionally closed occupations. Id. at 202-204. Against this background, the Court concluded that Congress could not have intended to prohibit private employers from implementing programs directed toward the very goal of Title VII -- the eradication of discrimination and its effects from the workplace:
It 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," 110 Cong. Rec. 6552 (1964) (remarks of Sen. Humphrey), constituted the first legislative prohibition of all voluntary, private, race-conscious efforts to abolish traditional patterns of racial segregation and hierarchy. Id. at 204.
The Court found support for its conclusion in the language and legislative history of section 2000e-2(j) of Title VII which expressly provides that nothing in the Act requires employers to grant racial preferences. *fn10 According to the Court, the opponents of Title VII had raised two arguments: the Act would be construed to impose obligations upon employers to integrate their work forces through preferential treatment of minorities, and even without being obligated to do so, employers with racially imbalanced work forces would grant racial preferences. Id. at 205. Since Congress addressed only the first objection and did not specifically prohibit affirmative action efforts in section 2000e-2(j), the Court inferred that Congress did not intend that Title VII forbid all voluntary race-conscious preferences. Id. at 205-06. The Court further reasoned that since Congress also intended in section 2000e-2(j) "to avoid undue federal regulation of private businesses," a prohibition against all voluntary affirmative action would disserve this end by "augment[ing] the power of the Federal government and diminish[ing] traditional management prerogatives. . . ." Id. at 206-07.
The Court then turned to the Kaiser plan in order to determine whether it fell on the "permissible" side of the "line of demarcation between permissible and impermissible affirmative action plans." Id. at 208. The Court upheld the Kaiser plan because its purpose "mirror[ed] those of the statute" and it did not "unnecessarily trammel the interests of the [non-minority] employees":
The purposes of the plan mirror those of the statute. Both were designed to break down old patterns of racial segregation and hierarchy. Both were structured to "open employment opportunities for Negroes in occupations which have been traditionally closed to them." 110 Cong. Rec. 6548 (1964) (remarks of Sen. Humphrey).
At the same time, the plan does not unnecessarily trammel the interests of the white employees. The plan does not require the discharge of white workers and their replacement with new black hires. Nor does the plan create an absolute bar to the advancement of white employees; half of those trained in the program will be white. Moreover, the plan is a temporary measure; it is not intended to maintain racial balance, but simply to eliminate a manifest racial imbalance. Id. at 208 (citation and footnote omitted).
In 1987, the Supreme Court decided a second Title VII affirmative action case, Johnson v. Transportation Agency, Santa Clara County, 480 U.S. at 616. There, the Santa Clara County Transit District Board of Supervisors implemented an affirmative action plan stating that
"`mere prohibition of discriminatory practices [was] not enough to remedy the effects of past discriminatory practices and to permit attainment of an equitable representation of minorities, women and handicapped persons.'" Id. at 620. The plan noted that women were represented in numbers far less than their proportion of the available work force in the Agency as a whole and in the skilled craft worker job category relevant to the case, and observed that a lack of motivation in women to seek training or employment where opportunities were limited partially explained the underrepresentation. Id. at 621. The plan authorized the Agency to consider as one factor the gender of a qualified candidate in making promotions to positions with a traditionally segregated job classification in which women were significantly underrepresented. Id. at 620-21. The plan did not set quotas, but had as its long-term goal the attainment of a work force whose composition reflected the proportion of women in the area labor force. Id. at 621-22. Acknowledging the practical difficulties in attaining the long-term goal, including the limited number of qualified women, the plan counseled that short-range goals be established and annually adjusted to serve as realistic guides for actual employment decisions. Id. at 622.
On December 12, 1979, the Agency announced a vacancy for the promotional position of road dispatcher. At the time, none of the 238 positions in the applicable job category was occupied by a woman. Id. at 621. The Agency Director, authorized to choose any of seven applicants who had been deemed eligible, promoted Diane Joyce, a qualified woman, over Paul Johnson, a qualified man. Id. at 624-25. As the Agency Director 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.'" Id. at 625.
Johnson sued, alleging that the Agency's employment decision constituted unlawful sex discrimination under Title VII. Evaluating the plan against the criteria announced in Weber, the district court held that the plan did not satisfy Weber's criterion that the plan be temporary. Id. at 625. The Court of Appeals for the Ninth Circuit reversed, holding that since the plan provided for the attainment, rather than the maintenance, of a balanced work force, the absence of an express termination date in the plan was not dispositive of its validity. Id. at 625-26. The court of appeals further held that the plan had been adopted "to address a conspicuous imbalance in the Agency's work force, and neither unnecessarily trammeled the rights of other employees, nor created an absolute bar to their advancement." Id. at 626.
The Supreme Court affirmed. Declaring its prior analysis in Weber controlling, the Court examined whether the employment decision at issue "was made pursuant to a plan prompted by concerns similar to those of the employer in Weber" and whether "the effect of the [p]lan on males and nonminorities [was] comparable to the effects of the plan in that case." Id. at 631. The first issue the Court addressed, therefore, was 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.'" Id. at 631 (quoting Weber, 433 U.S. at 197). Although the Court did not set forth a quantitative measure for determining what degree of disproportionate representation in an employer's work force would be sufficient to justify affirmative action, it made clear that the terms "manifest imbalance" and "traditionally segregated job category" were not tantamount to a prima facie case of discrimination against an employer since the constraints of Title VII and the Federal Constitution on voluntarily adopted affirmative action plans are not identical. Johnson, 480 U.S. at 632. In this regard, the Court further reasoned that requiring an employer in a Title VII affirmative action case to show that it had discriminated in the past "would be inconsistent with Weber's focus on statistical imbalance, and could inappropriately create a significant discentive for employers to adopt an affirmative action plan". Id. at 633 (footnote omitted).
Reviewing Agency statistics which showed that women were concentrated in traditionally female jobs and represented a lower percentage in other jobs than would be expected if traditional segregation had not occurred, the Court concluded that the decision to promote Joyce was made pursuant to a plan designed to eliminate work force imbalances in traditionally segregated job categories and thus satisfied Weber's first prong. Id. at 634. Moving to Weber's second prong, whether the plan unnecessarily trammeled the rights of male employees, the Court concluded that the plan passed muster because it authorized merely that consideration be given to affirmative action concerns when evaluating applicants; gender was a "plus" factor, only one of several criteria that the Agency Director considered in making his decision; no legitimate, firmly rooted expectation on the part of Johnson was denied since the Agency Director could have promoted any of the seven candidates classified as eligible; even though Johnson was refused a promotion, he retained his employment; and the plan was intended to attain a balanced work force, not to maintain one. Id. at 638-40.
We analyze Taxman's claim of employment discrimination under the approach set forth in McDonnell Douglas v. Green, 411 U.S. 792 (1978). Once a plaintiff establishes a prima facie case, the burden of production shifts to the employer to show a legitimate nondiscriminatory reason for the decision; an affirmative action plan may be one such reason. Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 626 (1987). When the employer satisfies this requirement, the burden of production shifts back to the employee to show that the asserted nondiscriminatory reason is a pretext and that the affirmative action plan is invalid. Id.
For summary judgment purposes, the parties do not dispute that Taxman has established a prima facie case or that the Board's decision to terminate her was based on its affirmative action policy. The dispositive liability issue, therefore, is the validity of the Board's policy under Title VII.
Having reviewed the analytical framework for assessing the validity of an affirmative action plan as established in United Steelworkers v. Weber, 443 U.S. 193 (1979), and refined in Johnson, 490 U.S. at 616, we turn to the facts of this case in order to determine whether the racial diversity purpose of the Board's policy mirrors the purposes of the statute. We look for the purposes of Title VII in the plain meaning of the Act's provisions and in its legislative history and historical context. See Edward v. Aguillard, 482 U.S. 578, 594-95 (1987) (in determining a statute's purpose, courts look to the statute's words, legislative history, historical context and the sequence of events leading to its passage).
Title VII was enacted to further two primary goals: to end discrimination on the basis of race, color, religion, sex or national origin, thereby guaranteeing equal opportunity in the workplace, and to remedy the segregation and under-representation of minorities that discrimination has caused in our Nation's work force.
Title VII's first purpose is set forth in section 2000e-2's several prohibitions, which expressly denounce the discrimination which Congress sought to end. 42 U.S.C. Section(s) 2000e-2(a)-(d),(l); McDonnell Douglas, 411 U.S. at 800 ("The language of Title VII makes plain the purpose of Congress 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.").This antidiscriminatory purpose is also reflected in the Act's ...