Personnel Administrator of Massachusetts v. Feeney Motion for Leave to File and Brief Amici Curiae

    No. 78-233

3u tlrr kapron? (Emtrt uf %  l u t t ^  States
O ctober  T e r m , 1978

P e r so n n e l  A d m in is t r a t o r  of 
M a ssa c h u se tts , e t  a l ., a p p e l l a n t s

v.

H e l e n  B. F e e n e y

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF MASSACHUSETTS

MOTION FOR LEAVE TO FILE and BRIEF OF THE 
OFFICE OF PERSONNEL MANAGEMENT,

THE UNITED STATES DEPARTMENT OF DEFENSE, 
THE UNITED STATES DEPARTMENT OF LABOR, 
AND THE EQUAL EMPLOYMENT OPPORTUNITY 

COMMISSION AS AMICI CURIAE

Margery W axman 
General Counsel
Office of Personnel Management 
Washington, D.C. 20415

Deanne Siemer 
General Counsel 
Department of Defense 
Washington, D.C. 20301

Carin A nn  Clauss 
Solicitor of Labor 
Department of Labor 
Washington, D.C. 20210

Issie L. Jenkins 
Acting General Counsel 
Equal Employment Opportunity 

Commission 
Washington, D.C. 20506



Jfu %  ^ityirnttF (Em trt ttf tlji> lu ttr ii B U xU b
October Term, 1978

No. 78-233

Personnel Administrator of 
Massachusetts, et al., appellants

v.

Helen B. Feeney

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF MASSACHUSETTS

MOTION OF THE
OFFICE OF PERSONNEL MANAGEMENT,

THE UNITED STATES DEPARTMENT OF DEFENSE, 
THE UNITED STATES DEPARTMENT OF LABOR, 
AND THE EQUAL EMPLOYMENT OPPORTUNITY 

COMMISSION FOR LEAVE TO FILE A BRIEF 
AS AMICI CURIAE

The undersigned agencies move for leave to file the 
annexed brief amici curiae to bring before the Court 
certain considerations, not set forth in the briefs 
hitherto filed, which we believe will be of interest to 
the Court.

The Office of Personnel Management, which has as­
sumed many of the functions of the Civil Service Com-

(1)



2

mission, manages federal employment operations and 
has the primary responsibility for development of 
policies governing federal civilian employment. Civil 
Service Reform Act of 1978, Pub. L. No. 95-454, 92 
Stat. 1119-1120; Reorganization Plan No. 2 of 1978, 
43 Fed. Reg. 36037 (1978). As the central federal 
personnel agency, OPM controls the examination and 
ranking of job applicants and implementation of the 
federal veterans’ preference. It, therefore, has an in­
terest in insuring that the decision in this case does 
not adversely affect the federal veterans’ preference 
provisions. After reading ail the briefs filed in this 
case, OPM believes that there is information available 
concerning the differences between the Massachusetts 
and the federal statute which is not contained in the 
briefs and which should be presented to the Court.

The Department of Defense carries out the consti­
tutional responsibility of the Executive Branch to 
raise and support armies (Article I, Section 8, clauses 
12 and 13). The Department has a direct interest in 
encouraging and rewarding service in the armed 
forces.

The Equal Employment Opportunity Commission 
and the Department of Labor have the major re­
sponsibility for enforcing federal statutes prohibiting 
discrimination on the basis of race or sex in employ­
ment. EEOC also has been charged with the “ de­
velop [ment] of uniform standards * * * and policies 
defining the nature of employment discrimination on 
the ground of race * * * [or] sex * * * under all Fed­
eral statutes * * * and policies which require equal



3

employment opportunity.” Executive Order No. 12067, 
43 Fed. Reg. 28967 (1978); see also Reorganization 
Plan No. 1 of 1978, 43 Fed. Reg. 19807 (1978). The 
Women’s Bureau of the Labor Department is respon­
sible for “ formulat[ing] standards and policies which 
shall promote the welfare of wage-earning women.” 
29 U.S.C. 13. Thus, EEOC and the Department of 
Labor have an interest in the standards for proving 
purposeful employment discrimination. The Depart­
ment of Labor also has the responsibility for a num­
ber of programs which provide special benefits to 
veterans.*

The undersigned agencies take no position on the 
validity of the Massachusetts veterans’ preference 
statute. We believe, however, that important con­
siderations concerning the differences between the 
federal and the state statute and the relevant proof 
requirements have not been adequately addressed in 
the briefs filed in this case. We, therefore, request 
permission to file a short brief amici curiae setting 
forth those considerations.

* 5 U.S.C. 8521 et seq. (Unemployment Compensation— Ex- 
Servicemen) ; 29 U.S.C. 49 et seq. (Wagner-Peyser Act) ; 29 
U.S.C. 801 et seq. (Comprehensive Employment and Train­
ing Act of 1973) ; 38 U.S.C. 2001 et seq. (Job Counselling, 
Training and Placement Services for Veterans) ; 38 U.S.C. 
2011 et seq. (Employment and Training of Disabled and Viet­
nam Era Veterans) ; 38 U.S.C. 2021 et seq. (Veterans’ Reem­
ployment Rights).



4

Respectfully submitted.

Margery W axman
General Counsel
Office of Personnel Management

Deanne Siemer
General Counsel 
Department of Defense

Carin A nn Clauss 
Solicitor of Labor 
Department of Labor

Issie L. Jenkins 
Acting General Counsel 
Equal Employment Opportunity 

Commission

I authorize the filing of this motion and the at­
tached brief.

February 1979

W ade H. McCree, Jr. 
Solicitor General



INDEX TO THE BRIEF
Page

Interest of the Amici Curiae ............................  1
Summary of Argument...................    2
Argument .............................................................. 5

CITATIONS
Cases:

Albemarle Paper Co. v. Moody, 422 U.S.
405 ............      14

Board of Regents v. Roth, 408 U.S. 564.... 11
Gomillion v. Lightfoot, 364 U.S. 339..... . 14
Hampton v. Mow Sun Wong, 426 U.S. 88.. 5
Massachusetts Board, of Retirement v.

Murgia, 427 U.S. 307 _______   11
Mathews v. Diaz, 426 U.S. 67 .................. 6
McGinnis v. Royster, 410 U.S. 263 .......... 13
Morton v. Mancari, 417 U.S. 535 ............ 6
Nashville Gas Co. v. Satty, 434 U.S. 136.. 11
Sugarman v. Dougall, 413 U.S. 634 .......  6
Village of Arlington Heights v. Metro­

politan Housing Development Corp.,
429 U.S. 252 _____ ______ __ ______ 12,13

Washington v. Danis, 426 U.S. 229 .......... 12,14

Constitution, statutes, and regulations:
United States Constitution, Article I, Sec­

tion 8, clauses 12 and 13 ......................  2, 5
Civil Rights Act of 1964, Section 712, 42

U.S.C. 2000e-ll ......................................  3
Civil Service Reform Act of 1978, Pub.

L. No. 95-454, 92 Stat. 1119-1120 .......  2
5 U.S.C, 3310 ............ .............. ................. . 6
5 U.S.C. 3313 ...............................................  6, 9



II

Statutes and regulations— Continued Page
5 U.S.C. 3318(a) .........................................  9
29 U.S.C. 13 .................................................. 3
Executive Order No. 12067, 43 Fed. Reg.

28967 (1978) ........................ -..................  3
Reorganization Plan No. 1 of 1978, 43

Fed. Reg. 19807 (1978) ........................  3
Reorganization Plan No. 2 of 1978, 43 

Fed. Reg. 36037 (1978) ........................  2

Miscellaneous:
Blumberg, De Facto and De Jure Sex 

Discrimination under the Equal Pro­
tection Clause: A Reconsideration of the 
Veterans’ Preference in Public Employ­
ment, 26 Buffalo L. Rev. 3 (1977).......  11

Brest, Palmer v. Thompson: An Approach 
to the Problem of Unconstitutional Leg­
islative Motive, 1971 Sup. Ct. Rev. 95.. 13,14 

Comment, Veterans’ Public Employment 
Preference as Sex Discrimination, 90
Harv. L. Rev. 805 (1977) ....................  12

Fleming & Shanor, Veterans’ Preferences 
in Public Employment: Unconstitutional 
Gender Discrimination?, 26 Emory L.J.
13 (1977)  ______ __________________  10

Note, Reading the Mind of the School 
Board: Segregative Intent and the De 
Facto/De Jure Distinction, 86 Yale L.J.
317 (1976)  ........................................  14

Veterans’ Preference Oversight Hearings, 
Hearings Before the Subcommittee on 
Civil Service of the House Committee 
on Post Office and Civil Service, 95th 
Cong., 1st Sess. (1977) .................... 8, 9,10,11



3n  ^ i t j t n w  (ftmtri o f il)t IntU 'fc i ’Jalrn
October  T e r m , 1978

No. 78-233

P e r so n n e l  A d m in istr a to r  of 
M a ssa c h u se tts , et a l ., a p p e l l a n t s

v.

H e le n  B. F e e n e y

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF MASSACHUSETTS

BRIEF FOR THE
OFFICE OF PERSONNEL MANAGEMENT,

THE UNITED STATES DEPARTMENT OF DEFENSE, 
THE UNITED STATES DEPARTMENT OF LABOR, 
AND THE EQUAL EMPLOYMENT OPPORTUNITY 

COMMISSION AS AMICI CURIAE

INTEREST OF THE AMICI CURIAE

The Office of Personnel Management, the Depart­
ment of Defense, the Department of Labor, and the 
Equal Employment Opportunity Commission wish to 
present to the Court certain considerations, primarily

(1)



2

regarding the operation of the federal veterans’ 
preference program, which, we believe, have not been 
fully addressed in the briefs of the parties and amici 
curiae.

The Office of Personnel Management, which has as­
sumed many of the functions of the Civil Service 
Commission, manages federal employment operations 
and has the primary responsibility for development 
of policies governing federal civilian employment. 
Civil Service Reform Act of 1978, Pub. L. No. 95-454, 
92 Stat. 1119-1120; Reorganization Plan No. 2 of 
1978, 43 Fed. Reg. 36037 (1978). As the central 
federal personnel agency, OPM controls the exami­
nation and ranking of job applicants and implemen­
tation of the federal veterans’ preference. The De­
partment of Defense carries out the constitutional 
responsibility of the Executive Branch to raise and 
support armies (Article I, Section 8, clauses 12 and 
13). The Department has a direct interest in en­
couraging and rewarding service in the armed forces. 
OPM and the Department of Defense, therefore, have 
an interest in insuring that the decision in this case 
does not adversely affect the federal veterans’ pref­
erence provisions.

The Equal Employment Opportunity Commission 
and the Department of Labor have the major re­
sponsibility for enforcing federal statutes prohibiting 
discrimination on the basis of race or sex in employ­
ment. EEOC also has been charged with the “ develop- 
[ment] of uniform standards * * * and policies defin­
ing the nature of employment discrimination on the



3

ground of race * * * [or] sex * * * under all Federal 
statutes * * * and policies which require equal em­
ployment opportunity.”  Executive Order No. 12067, 
43 Fed. Reg. 28967 (1978); see also Reorganization 
Plan No. 1 of 1978, 43 Fed. Reg. 19807 (1978). The 
Women’s Bureau of the Labor Department is respon­
sible for “ form ulating] standards and policies which 
shall promote the welfare of wage-earning women.” 
29 U.S.C. 13. Thus, EEOC and the Department of 
Labor have an interest in the standards for proving 
purposeful employment discrimination.1

The above agencies take no position on the validity 
of the Massachusetts veterans’ preference statute. 
We believe, however, that there are important con­
siderations concerning the difference between the 
federal and the state statute and the relevant proof 
requirements which have not been adequately ad­
dressed in the briefs previously filed in this case and 
which will be of benefit to the Court.

SUMMARY OF ARGUMENT

1. The national interest in compensating and re­
warding veterans is different in quality and char­
acter from that of the states and would support the 
federal system of veterans’ preference regardless of 
the decision in this case.

1 Although under Section 712 of Title VII of the Civil Rights 
Act of 1%4, 42 U.S.C. 2000e-ll, veterans’ employment prefer­
ences are expressly exempt from the proscriptions of Title 
VII, the EEOC has a substantial interest in the proof re­
quirements for employment discrimination generally.



4

Furthermore, the Massachusetts absolute prefer­
ence and the federal point preference are substantially 
different in both their operation and impact. Al­
though each of the preferences adversely affects wom­
en, the federal preference is significantly less burden­
some on women seeking higher level positions. The 
district court found that under the Massachusetts 
absolute preference, “ [fjew , if any, females have ever 
been considered for the higher positions in the state 
civil service” (A. 218). In contrast, studies done by 
the U.S. Civil Service Commission indicate that while 
the proportion of women hired is lower because of the 
federal veterans’ preference, women nevertheless have 
constituted more than one-fourth of those hired for 
federal jobs requiring professional or administrative 
skills. Thus the federal point preference, which in­
sures some measure of individual competition, is 
considerably less extreme in effect than Massachu­
setts’ absolute preference.

2. Although the extent and form of veterans’ bene­
fits is a matter to be determined by the legislature, 
not every veterans’ preference, no matter how irra­
tional or extreme, must survive constitutional chal­
lenge. Even though such legislation unquestionably 
serves a legitimate goal, if an illicit motive was a 
factor in the means chosen to accomplish that goal, 
judicial deference is not required. Thus, the district 
court could properly consider whether the extreme 
form of preference chosen by Massachusetts had a 
bearing on the issue of improper motivation.



5

In some circumstances, the method chosen by the 
legislature may be so arbitrary and extreme in effect 
as to warrant a finding of discriminatory intent. The 
district court determined that Massachusetts’ absolute 
preference fell within that category. Whatever the 
validity of the district court’s view, it does not apply 
to the federal preference.

ARGUMENT

We think it important to point out that neither the 
federal, nor any other veterans’ employment prefer­
ence, is necessarily implicated with the Massachu­
setts scheme. Whatever the decision in this case, it 
will not determine the validity of the federal prefer­
ence. As discussed in the brief for the United States, 
the federal government, acting pursuant to its con­
stitutional responsibility to raise and support armies 
(Article I, Section 8, clauses 12 and 13), has a 
stronger and different interest than the states in 
encouraging and rewarding service in the armed 
forces— the goals of veterans’ preference. (Brief for 
the United States as amicus curiae [hereafter U.S. 
Brief] at 34-35). The Court recognized in Hampton 
v. Mow Sun Wong, 426 U.S. 88, 100 (1976), that 
“ there may be overriding national interests which 
justify selective federal legislation that would be un­
acceptable for an individual State.”  Thus, in Hamp­
ton, the Court held that a challenged regulation 
excluding aliens from federal competitive civil serv­
ice jobs required independent evaluation, even though 
the Court had earlier held a similar state provision



6

unconstitutional in Sugarman v. Dougall, 413 U.S. 
634 (1973). See also Mathews v. Diaz, 426 U.S. 67 
(1976) (unholding a federal statute which denied cer­
tain medicare benefits to aliens after striking a com­
parable state provision); cf. Morton v. Mancari, 417 
U.S. 535, 555 (1974) (holding that Congress’ “ unique 
obligation” toward Indians justified an employment 
preference for Indians in the Bureau of Indian A f­
fairs). Similarly, the compelling national interest in 
compensating veterans, which is different both in 
quality and character from that of Massachusetts, 
would in our view support the federal preference 
regardless of the decision here.

Not only are the governmental interests in vet­
erans’ legislation different, but the Massachusetts 
statute and the federal statute are also substantially 
different in their operation and impact. For the most 
part, the federal program relies on a point preference, 
thereby giving veterans some advantage over non- 
veterans who receive the same raw score on a civil 
service entrance examination. The Massachusetts 
statute, on the other hand, establishes an absolute 
preference, granting veterans priority over all other 
job applicants regardless of their comparative scores.2

2 Although Congress has given disabled veterans first prior­
ity to certain jobs (5 U.S.C. 3313), and restricted certain 
unskilled jobs— those of guards, elevator operators, mes­
sengers and custodians—to veterans, if any apply (5 U.S.C. 
3310; see U.S. Brief at 4 ), these preferences are limited in 
scope and justified by special considerations. The plight of 
disabled veterans and the nation’s heightened obligation to



7

While there is no question that both statutes have a 
disparate impact on women (U.S. Brief at 6, 35), 
the federal statute has a less severe effect on women’s 
opportunities for obtaining higher level positions. 
The district court found that the negative impact of 
the Massachusetts absolute preference on women is 
“ dramatic” : “ [f]ew, if any, females have ever been 
considered for the higher positions in the state civil 
service” (A. 217, 218). Although 43 percent of those 
hired by the state from 1963 to 1973 were women, a 
large percentage of these were employed in lower 
paying, traditionally female jobs for which men did 
not apply or they were appointed under a defunct 
practice allowing requisition of only women for cer­
tain jobs (A. 197, 218, 263). The effect of the abso­
lute preference is demonstrated in the 1975 Adminis­
trative Assistant eligibility list, which served as a 
pool for many state positions. As a result of the 
veterans’ preference, the 41 women on the list lost 
an average of 21.5 places each while the 63 male 
veterans gained an average of 28 places each (A. 
217). The district court found that “ [ i ] f  the list 
had ben compiled without the Veterans’ Preference, 
nearly 40% of the women would have occupied the 
top third of the list which is now occupied, with one

them warrant their special status. As to the few unskilled 
jobs for which veterans are given priority, it is reasonable to 
presume that veterans applying for such unskilled jobs are 
more in need of assistance.



8

exception [a female veteran], by men” (A. 217-18).3 * * * * * * 10 
Thus, as Judge Campbell recognized in his concurring 
opinion on remand, the absolute preference “ makes it 
virtually impossible for a woman, no matter how 
talented, to obtain a state job that is also of interest 
to males. Such a system is fundamentally different 
from the conferring upon veterans of financial bene­
fits to which all taxpayers contribute, or from the 
giving to them of some degree of preference in gov­
ernment employment, as under a point system, as a 
quid pro quo for time lost in military service” (A. 
268-69).

Studies done by the U.S. Civil Service Commission 
indicate that the federal point preference is sig­
nificantly less burdensome on women seeking higher 
level jobs. The “ primary entry route” into profes­
sional and management level federal jobs is the pro­
fessional and administrative career examination 
(PACE). Veterans’ Preference Oversight Hearings, 
Hearings Before the Subcommittee on Civil Service of 
the House Committee on Post Office and Civil Service,

3 In his first dissent, Judge Murray noted that under the
federal preference the first woman would have ranked 18th on 
the eligibility list and plaintiff would not have been reached
until at least 31 names were certified. (A. 240 n.14). How­
ever, he incorrectly concluded that these women would not
have been considered for a position by overlooking the fact
that 43 positions held by provisional appointees could have
been filled from the list (A. 77-78). See Brief for Appellee at
10 n.13. This demonstrates that, as the number of vacancies 
increases, women have a greater chance of being considered 
under the federal system. Therefore, the impact on women of 
the federal point preference is much less predictable than 
Massachusetts’ absolute preference.



9

95th Cong., 1st Sess. 4 (1977) (Statement of Alan K. 
Campbell, Chairman, U.S. Civil Service Commission). 
Of those who passed the examination in 1975, 41 
percent were female, 37 percent were male non- 
veterans, and approximately 20 percent were vet­
erans. Of those who were selected for employment, 
women constituted 27 percent and veterans 34 per­
cent. Therefore, veterans improved and women cor­
respondingly declined in position by 14 percent after 
addition of the veterans’ preference. Ibid*

At present, selection of employees is made from 
those persons who score within the top five percent. 
After the veterans’ preference and “ top-of-the-regis- 
ter” provisions 5 are considered, women make up 29 
percent of those in the top 5 percent. It has been 
estimated that without the preference provisions, they 
would constitute 41 percent of the top group— an 
increase of 12 percent, Statement of Chairman 
Campbell, Veterans’ Preference Oversight Hearings, 
supra, at 4.5 Thus, while the federal veterans’ prefer- 4 5 6

4 Although the veterans’ preference provisions should also 
operate to disadvantage^male nonveterans, they are in fact 
hired in numbers comparable to their share of those who pass 
the exam. Statement of Chairman Campbell, Veterans’ Pref­
erence Oversight Hearings, swpra, at 4.

5 5 U.S.C. 3313 requires that disabled veterans be placed 
at the top of the eligibility list for certain jobs. See note 2, 
supra. Selection for a position must be made from among the 
three available persons highest on the eligibility list. 5 U.S.C. 
3318(a).

6 The effect of the federal veterans’ preference turns in 
part on economic conditions. Thus, the adverse impact on 
women is magnified at the present time because of large 
numbers of applicants and few vacancies.



10

ence has an adverse impact on women’s job oppor­
tunities, women are not completely foreclosed from 
consideration and indeed constituted more than one- 
fourth of those hired in 1975 for jobs requiring pro­
fessional or administrative skills.7

As the foregoing discussion indicates, the Massa­
chusetts statute, by creating an absolute life-long 
preference throughout the civil service system, is one 
of the most extreme veterans’ preference provisions. 
See Fleming & Shanor, Veterans’ Preferences in Pub­
lic Employment: Unconstitutional Gender Discrimi­
nation?, 26 Emory L.J. 13, 16-18 (1977); see also 
Veterans’ Preference Oversight Hearings, supra, at 
10-12. The federal point preference, which, insures 
some measure of individual competition, is consider­
ably less drastic. Indeed, the district court found 
that the existence of such effective less discriminatory 
alternatives 8 supported its first conclusion that the

7 Despite this hiring ratio, women in federal employment, 
as in the private labor force, remain clustered at the bottom 
pay scales. Statement of Chairman Campbell, Veterans’ 
Preference Oversight Hearings, supra, at 4. Cf. Brief Amici 
Curiae of the National Organization for Women, et al., at 4 
n.l. This, of course, is attributable only in part to the vet­
erans’ preference. Surveys by the Civil Service Commission 
and the General Accounting Office indicate that a revision of 
the preference would have a favorable impact on women in 
some circumstances, but not others, depending on their occu­
pation. Statement of Chairman Campbell, Veterans’ Prefer­
ence Oversight Hearings, supra, at 4-5.

8 Although the degree of preference in the federal system is 
less, the federal program is considered highly successful and 
effective in meeting the goals set by the federal government, 
which has the primary responsibility for compensating vet­



11

absolute preference could not withstand constitutional 
scrutiny (A. 219-20) and its conclusion on remand 
that the statute was intentionally discriminatory (A. 
265).

As the Solicitor General has stated, the extent and 
form of veterans’ benefits is a matter for Congress 
and the state legislatures (U.S. Brief at 36-37). 
This is not to say, however, that any veterans’ pref­
erence, no matter how extreme or irrational, must 
survive constitutional challenge.9 There is no ques­
tion that the ultimate purpose of the Massachusetts 
statute and other veterans’ preference legislation— to 
reward veterans— is legitimate. Even though legis­
lation serves a legitimate purpose, however, an illicit

erans. See Veterans’ Preference Oversight Hearings, supra, 
at 3. Veterans constitute approximately 50 percent o f the 
federal service, while they make up only 25 percent of the 
national labor force. Ibid.

9 We do not believe that an employment preference is indis­
tinguishable from other forms of veterans’ benefits, such as 
educational benefits and loan programs, which are paid out of 
general tax revenues. Although an individual’s interest in 
obtaining public employment is not fundamental, Massachu­
setts Board of Retirement v. Murgia, 427 U.S. 307 (1976), it 
is considered significant. See, e.g., Board of Regents v. Roth, 
408 U.S. 564 (1972) ; Blumberg, De Facto and De Jure Sex 
Discrimination under the Equal Protection Clause: A Recon­
sideration of the Veterans’ Preference in Public Employment, 
26 Buffalo L. Rev. 3, 68-69 (1977). Moreover, the veterans’ 
employment preference, unlike forms of financial benefits, 
places a particular burden on women seeking the opportunity 
for employment. Cf. Nashville Gas Co. v. Satty, 434 U.S, 136, 
142 (1977) (distinguishing between a policy placing a burden 
on employment opportunities and one which merely denies 
women additional financial benefits).



12

motive may nevertheless have been a factor in the 
choice of means adopted to accomplish that goal. As 
the Court explained in Village of Arlington Heights 
v. Metropolitan Housing Development Corp., 429 U.S. 
252, 265 (1977), “ [rjarely can it be said that a legis­
lature or administrative body operating under a 
broad mandate made a decision motivated solely by 
a single concern * * * When there is a proof that a 
discriminatory purpose has been a motivating factor 
in the decision * * * judicial deference is no longer 
justified.”  [Footnote omitted.] The statement in the 
brief for the United States that “when the district 
court found that the purpose of the veterans’ prefer­
ence statute was to aid veterans and not to injure 
women, that should have been the end of the matter” 
(U.S. Brief at 31-32), should be read in context: it 
was based both on the district court’s finding that the 
prime objective of the Massachusetts statute was 
worthy (A. 254, 264) and also on the statement in its 
first opinion that the statue “was not enacted for the 
purpose of disqualifying women from receiving civil 
service appointments” (A. 212). However, the latter 
conclusion was made before the decision in Washing­
ton v. Davis, 426 U.S. 229 (1976), at a time when the 
court believed that a disproportionate impact alone 
was sufficient to require heightened scrutiny. It was 
not a considered finding on the complex question of 
illicit motivation. See Comment, Veterans’ Public 
Employment Preference as Sex Discrimination, 90 
Harv. L. Rev. 805, 810 n.45 (1977). Therefore, we 
do not believe that the brief of the United States is



13

contrary to our position that the district court could 
properly consider whether the extreme form of pref­
erence chosen by Massachusetts had a bearing on the 
issue of improper motivation (see U.S. Brief at 
28-30).10 It is also significant that the Massachusetts 
statute is unlike other facially neutral laws because 
it directly incorporates the military’s explicit gender- 
based classifications. That the discriminatory impact 
is therefore both foreseeable and “ inevitable”  (A. 
260 n.7) does not in our view warrant heightened 
scrutiny of the statute, but it is a factor to be con­
sidered in determining the legislature’s motivation.

As stated in the brief for the United States, insofar 
as the district court conclusively presumed a discrimi­
natory purpose from the legislature’s awareness of 
predictable disparate impact on women, it was in 
error (U.S. Brief at 18-19, 26). Foreseeable dis­
criminatory effect is, however, probative evidence of 
a discriminatory purpose and in some contexts per­
mits an inference of discriminatory intent, which 
shifts the burden of rebuttal to the state (U.S. Brief 
at 28-29). We believe that the degree of reasonable­
ness in the legislature’s choice of means is probative

10 The Court noted in Village of Arlington Heights, supra, 
429 U.S. at 265 n .ll, that “ ‘ [1]egislation is frequently multi- 
purposed: the removal of even a “ subordinate” purpose may 
shift altogether the consensus of legislative judgment support­
ing the statute’ ” (quoting McGinnis V. Royster, 410 U.S. 263, 
276-77 (1973)). See also Brest, Palmer v. Thompson: An 
Approach to the Problem of Unconstitutional Legislative Mo­
tive, 1971 Sup. Ct. Rev. 95, 104 (“ Every explicit or implicit 
distinction made by a law may have objectives.” ).



14

of intent, as is the existence of effective less discrimi­
natory alternatives.11 There is a point where the 
method chosen by the legislature is so arbitrary and 
extreme in effect as to warrant a finding of invidious 
intent. See Washington v. Davis, supra, 426 U.S. 
at 241-242 and 254 (Stevens, J., concurring); Gomil- 
lion v. Lightfoot, 364 U.S. 339 (1960) (an extreme 
example in which the boundaries of Tuskegee were 
changed from a square to a twenty-eight-sided figure, 
excluding virtually all black voters). The district 
court concluded that Massachusetts’ absolute perma­
nent preference reached that point. Whatever the 
validity of the district court’s view, we emphasize 
that, as discussed above, the decision does not require 
a finding that Congress was similarly motivated.12

11 Professor Brest explains: “ A conscientious decisionmaker 
* * * considers the costs of a proposal, its conduciveness to the 
ends sought to be attained, and the availability of alternatives 
less costly to the community as a whole or to a particular 
segment of the community. That a decision obviously fails to 
reflect these considerations with respect to any legitimate 
objective supports the inference that it was improperly moti­
vated.”  Brest, Palmer v. Thompson: An Approach to the 
Problem of Unconstitutional Legislative Motive, supra, 1971 
Sup. Ct. Rev. at 121-122. See also Note, Reading the Mind of 
the School Board: Segregative Intent and the De Facto/De 
Jure Distinction, 86 Yale L. J. 317, 337-340 (1976). Cf. Albe­
marle Paper Co. V. Moody, 422 U.S. 405, 425 (1975) (ex­
istence of an effective less discriminatory alternative is evi­
dence that more burdensome means were chosen as a “ pre­
text”  for discrimination).

12 The district court specifically noted that it was not passing 
on the validity of the federal provisions (A. 220).



15

Respectfully submitted.

Margery W axman
General Counsel
Office of Personnel Management

Deanne Siemer
General Counsel 
Department of Defense

Carin A nn Clauss 
Solicitor of Labor 
Department of Labor

Issie L. Jenkins
Acting General Counsel 
Equal Employment Opportunity 

Commission

February 1979

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