INTRODUCTION

In Johnson, the U.S. Supreme Court upheld a voluntary affirmative action plan that the defendant agency (the “Agency”) implemented in response to a significant lack of female workers in its “skilled,” and therefore supervisory and higher-paying, positions. Justice Brennan, for the majority, found that the plan did not violate Title VII even though it allowed the Agency to take into account a job applicant's sex; the Court reasoned that this preference was used to remedy a “manifest” imbalance in job classifications for which women had been traditionally underrepresented and, in doing so, did not “unnecessarily trammel” the rights of male workers or create an absolute bar to their advancement.

Extending approval of race-based affirmative action programs to gender- based programs, the Johnson Court also recognized that treating women “equally” with men did not necessarily mean treating women identically to men. And yet, by accepting that the male applicant in question was “more qualified” than the female, Johnson embraces the notion that merit can be objectively and fairly determined. Professor Deborah Rhode, writing as Justice Rhode, rewrites the decision to highlight and debunk this fundamental misunderstanding and to confront directly how limits on women's traditional employment opportunities are not simply matters of choice.

JOHNSON: FACTS AND DOCTRINE

Diane Joyce was the first woman at the Agency to hold a road maintenance position, a prerequisite to the dispatcher job at the center of the dispute in this case. At the time Joyce applied to be dispatcher, the Agency had never employed a woman in that position or in any of its 238 “skilled craft” positions.

One of Joyce's review panels included two Agency employees who had sexually harassed Joyce in the past. Although this panel recommended promoting Petitioner Paul Johnson over Joyce, the Agency Director decided to promote Joyce instead. In response, Johnson filed a complaint alleging that he had been denied a promotion on the basis of sex in violation of Title VII.

The district court found that Johnson was “more qualified” for the dispatcher position than Joyce and that Joyce's gender was the “determining factor in her selection”; it further held that the Agency's plan violated Steelworkers v.