SCALIA, J., dissenting

99

480 U. S.

the position of Road Dispatcher than Diane Joyce," id., at 12a; that "[b]ut for [Mr. Johnson's] sex, male, he would have been promoted to the position of Road Dispatcher," id., at 13a; and that "[b]ut for Diane Joyce's sex, female, she would not have been appointed to the position. Ibid. The Ninth Circuit did not reject these factual findings as clearly erroneous, nor could it have done so on the record before us. We are bound by those findings under Federal Rule of Civil Procedure 52(a).

II

The most significant proposition of law established by today's decision is that racial or sexual discrimination is permitted under Title VII when it is intended to overcome the effect, not of the employer's own discrimination, but of societal attitudes that have limited the entry of certain races, or of a particular sex, into certain jobs. Even if the societal attitudes in question consisted exclusively of conscious discrimination by other employers, this holding would contradict a decision of this Court rendered only last Term. Wygant v. Jackson Board of Education, 476 U. S. 267 (1986), held that the objective of remedying societal discrimination cannot prevent remedial affirmative action from violating the Equal Protection Clause. See id., at 276; id., at 288 (O'CONNOR, J., concurring in part and concurring in judgment); id., at 295 (WHITE, J., concurring in judgment). While Mr. Johnson does not advance a constitutional claim here, it is most unlikely that Title VII was intended to place a lesser restraint on discrimination by public actors than is established by the Constitution. The Court has already held that the prohibitions on discrimination in Title VI, 42 U. S. C. §2000d, are at least as stringent as those in the Constitution. See Regents of University of California v. Bakke, 438 U. S. 265, 286-287 (1978) (opinion of POWELL, J.) (Title VI embodies constitutional restraints on discrimination); id., at 329-340 (opinion of BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ.) (same); id., at 416 (opinion of

STEVENS, J., joined by Burger, C. J., and Stewart and REHNQUIST, JJ.) (Title VI "has independent force, with language and emphasis in addition to that found in the Constitution") (emphasis added). There is no good reason to think that Title VII, in this regard, is any different from Title VI.3 Because, therefore, those justifications (e. g., the remedying of past societal wrongs) that are inadequate to insulate discriminatory action from the racial discrimination prohibitions of the Constitution are also inadequate to insulate it from the racial discrimination prohibitions of Title VII; and because the portions of Title VII at issue here treat race and sex equivalently; Wygant, which dealt with race discrimination, is fully applicable precedent, and is squarely inconsistent with today's decision."

To support the proposition that Title VII is more narrow than Title VI, the majority repeats the reasons for the dictum to that effect set forth in Steelworkers v. Weber, 443 U. S. 193, 206, n. 6 (1979)—a case which, as JUSTICE O'CONNOR points out, ante, at 651-652, could reasonably be read as consistent with the constitutional standards of Wygant. Those reasons are unpersuasive, consisting only of the existence in Title VII of 42 U. S. C. § 2000e-2(j) (the implausibility of which, as a restriction upon the scope of Title VII, was demonstrated by CHIEF JUSTICE REHNQUIST's literally unanswered Weber dissent) and the fact that Title VI pertains to recipients of federal funds while Title VII pertains to employers generally. The latter fact, while true and perhaps interesting, is not conceivably a reason for giving to virtually identical categorical language the interpretation, in one case, that intentional discrimination is forbidden, and, in the other case, that it is not. Compare 42 U. S. C. § 2000d (“No person . . shall, on the ground of race, color, or national origin, be . . . subjected to discrimination"), with §2000e-2(a)(1) (no employer shall "discriminate against any individual... because of such individual's race, color, religion, sex, or national origin").

'JUSTICE O'CONNOR's concurrence at least makes an attempt to bring this Term into accord with last. Under her reading of Title VII, an employer may discriminate affirmatively, so to speak, if he has a "firm basis” for believing that he might be guilty of (nonaffirmative) discrimination under the Act, and if his action is designed to remedy that suspected prior discrimination. Ante, at 649. This is something of a halfway house between leaving employers scot-free to discriminate against disfavored

Likewise on the assumption that the societal attitudes relied upon by the majority consist of conscious discrimination by employers, today's decision also disregards the limitations carefully expressed in last Term's opinions in Sheet Metal Workers v. EEOC, 478 U. S. 421 (1986). While those limitations were dicta, it is remarkable to see them so readily (and so silently) swept away. The question in Sheet Metal Workers was whether the remedial provision of Title VII, 42 U. S. C. §2000e-5(g), empowers courts to order raceconscious relief for persons who were not identifiable victims of discrimination. Six Members of this Court concluded that it does, under narrowly confined circumstances. The plurality opinion for four Justices found that race-conscious relief could be ordered at least when "an employer or a labor union has engaged in persistent or egregious discrimination, or where necessary to dissipate the lingering effects of pervasive discrimination." 478 U. S., at 445 (opinion of BRENNAN, J., joined by MARSHALL, BLACKMUN, and STEVENS, JJ.). See also id., at 476. JUSTICE POWELL concluded that race-conscious relief can be ordered "in cases involv

groups, as the majority opinion does, and prohibiting discrimination, as do the words of Title VII. In the present case, although the District Court found that in fact no sex discrimination existed, JUSTICE O'CONNOR would find a "firm basis" for the agency's belief that sex discrimination existed in the "inexorable zero": the complete absence, prior to Diane Joyce, of any women in the Agency's skilled positions. There are two problems with this: First, even positing a "firm basis" for the Agency's belief in prior discrimination, as I have discussed above the plan was patently not designed to remedy that prior discrimination, but rather to establish a sexually representative work force. Second, even an absolute zero is not “inexorable." While it may inexorably provide "firm basis" for belief in the mind of an outside observer, it cannot conclusively establish such a belief on the employer's part, since he may be aware of the particular reasons that account for the zero. That is quite likely to be the case here, given the nature of the jobs we are talking about, and the list of "Factors Hindering Goal Attainment" recited by the Agency plan. See supra, at 622. The question is in any event one of fact, which, if it were indeed relevant to the outcome, would require a remand to the District Court rather than an affirmance.

ing particularly egregious conduct," id., at 483 (concurring in part and concurring in judgment), and JUSTICE WHITE similarly limited his approval of race-conscious remedies to "unusual cases." Id., at 499 (dissenting). See also Firefighters v. Cleveland, 478 U. S. 501, 533 (1986) (WHITE, J., dissenting) ("I also agree with JUSTICE BRENNAN'S opinion in Sheet Metal Workers . . . that in Title VII cases enjoining discriminatory practices and granting relief only to victims of past discrimination is the general rule, with relief for nonvictims being reserved for particularly egregious conduct"). There is no sensible basis for construing Title VII to permit employers to engage in race- or sex-conscious employment practices that courts would be forbidden from ordering them to engage in following a judicial finding of discrimination. As JUSTICE WHITE noted last Term:

"There is no statutory authority for concluding that if an employer desires to discriminate against a white applicant or employee on racial grounds he may do so without violating Title VII but may not be ordered to do so if he objects. In either case, the harm to the discriminatee is the same, and there is no justification for such conduct other than as a permissible remedy for prior racial discrimination practiced by the employer involved." Id., at 533.

The Agency here was not seeking to remedy discriminationmuch less "unusual" or "egregious" discrimination. Firefighters, like Wygant, is given only the most cursory consideration by the majority opinion.

In fact, however, today's decision goes well beyond merely allowing racial or sexual discrimination in order to eliminate the effects of prior societal discrimination. The majority opinion often uses the phrase "traditionally segregated job category" to describe the evil against which the plan is legitimately (according to the majority) directed. As originally used in Steelworkers v. Weber, 443 U. S. 193 (1979), that phrase described skilled jobs from which employers and un

ions had systematically and intentionally excluded black workers-traditionally segregated jobs, that is, in the sense of conscious, exclusionary discrimination. See id., at 197198. But that is assuredly not the sense in which the phrase is used here. It is absurd to think that the nationwide failure of road maintenance crews, for example, to achieve the Agency's ambition of 36.4% female representation is attributable primarily, if even substantially, to systematic exclusion of women eager to shoulder pick and shovel. It is a "traditionally segregated job category" not in the Weber sense, but in the sense that, because of longstanding social attitudes, it has not been regarded by women themselves as desirable work. Or as the majority opinion puts the point, quoting approvingly the Court of Appeals: "A plethora of proof is hardly necessary to show that women are generally underrepresented in such positions and that strong social pressures weigh against their participation."" Ante, at 634, n. 12 (quoting 748 F. 2d 1308, 1313 (CA9 1984)). Given this meaning of the phrase, it is patently false to say that "[t]he requirement that the 'manifest imbalance' relate to a 'traditionally segregated job category' provides assurance. . . 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." Ante, at 632. There are, of course, those who believe that the social attitudes which cause women themselves to avoid certain jobs and to favor others are as nefarious as conscious, exclusionary discrimination. Whether or not that is so (and there is assuredly no consensus on the point equivalent to our national consensus against intentional discrimination), the two phenomena are certainly distinct. And it is the alteration of social attitudes, rather than the elimination of discrimination, which today's decision approves as justification for state-enforced discrimination. This is an enormous expansion, undertaken without the slightest justification or analysis.