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Hi-Voltage Wire Works11/30/2000
form of fixed union membership goals] as a remedy for past discrimination" even if it may benefit individuals who were not identified victims of such discrimination. (See also Firefighters v. Cleveland (1986) 478 U.S. 501 [consent decree requiring race-conscious promotions did not violate Title VII even though beneficiaries had not suffered discrimination].) In reaching this result, a plurality of the court construed Title VII not only to guarantee equal employment opportunities but to "foster" them as well. (Sheet Metal Workers, supra, 478 U.S. at p. 448.) " ven 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. [Citations.] 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.' [Citations.]" (Id. at pp. 449-450.) As Justice O'Connor observed, however, " he plurality offers little guidance as to what separates an impermissible quota from a permissible goal." (Id. at p. 494 (conc. & dis. opn. of O'Connor, J.).)
A year later, in Johnson, supra, 480 U.S. 616, the Supreme Court validated a public agency's plan whereby it promoted a woman over a male who ranked higher on the promotional test. Notwithstanding the lack of any evidence the agency had actually discriminated against women, the court found the plan justified by a " `conspicuous . . . imbalance in traditionally segregated job categories.' [Citation.]" (Id. at p. 630.) Departing from the burden-shifting procedures of McDonnell Douglas, supra, 411 U.S. 792, and Furnco, supra, 438 U.S. 567 (see ante, at p. 14, fn. 7), the court concluded " manifest imbalance need not be such that it would support a prima facie case against the employer . . . since we do not regard as identical the constraints of Title VII and the Federal Constitution on voluntarily adopted affirmative action plans." (Johnson, supra, 480 U.S. at p. 632, fn. omitted; see also id. at p. 633, fn. 10.) Accordingly, the agency "appropriately took into account . . . sex" in making its promotional decision. (Id. at p. 641.)
The court in Johnson approved preferential treatment of a woman because "the decision to hire was made pursuant to an Agency plan that directed that sex or race be taken into account for the purpose of remedying under-representation." (Johnson, supra, 480 U.S. at p. 634.) In relying on this justification, it replaced individual right of equal opportunity with proportional group representation. Although pursued for the purpose of eliminating invidious discrimination, history reveals that this prevailing social and political norm had its parallel in laws antedating the Civil Rights Act, when government could legally classify according to race. (See Van Alstyne, supra, 46 U.Chi. L.Rev. at pp. 797-803.)
D.
Our own decisional law has mirrored this change in focus from protection of equal opportunity for all individuals to entitlement based on group representation. During the period the United States Supreme Court was issuing its great decisions, California was not without its own "judicial harbingers of a prejudice-free society" (DeRonde, supra, 28 Cal.3d 875, 893 (dis. opn. of Mosk, J.)), opinions in which "this court had consistently maintained that race or similar characteristics are not a qualification or disqualification for the benefits of society." (Id. at p. 892.) In Perez v. Sharp (1948) 32 Cal.2d 711,
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