In Personnel Administrator of Massachusetts v. Feeney, decided 7–2 in 1979, the Supreme Court held that Massachusetts’s absolute veterans’ preference in civil service hiring did not violate the Equal Protection Clause, even though it kept women out of the state’s most desirable jobs. The decision established that a facially neutral law with severely disproportionate effects on one sex is unconstitutional only if the legislature chose the policy because of, not merely in spite of, those effects.1Justia. Personnel Adm’r of Massachusetts v. Feeney
The Massachusetts Veterans’ Preference
The statute at issue, Massachusetts General Laws Chapter 31, Section 23 (now Section 26), imposed a rigid ordering on civil service eligible lists. Disabled veterans came first, then all other veterans, then certain surviving spouses of veterans killed in action, and finally everyone else. Within a tier, candidates were ranked by exam score. The tiers themselves were absolute.2General Court of Massachusetts. Massachusetts General Laws Chapter 31 Section 26 – Order of Persons on Eligible Lists; Veterans Preference
A veteran with a bare passing score outranked every non-veteran, no matter how high their marks. Because hiring managers typically pulled from the top of the list, non-veterans rarely reached the zone of consideration for competitive positions. The preference covered all permanent state jobs.
Helen Feeney’s Case
Helen Feeney had worked in the Massachusetts civil service since 1963 and repeatedly scored near the top of promotional exams, only to be passed over by lower-scoring veterans. In 1971, she earned the second-highest score on an exam for a position with the Board of Dental Examiners and was dropped to sixth on the list behind five male veterans who had scored lower; a lower-scoring veteran got the job. In 1973, she placed third overall on a test for an administrative assistant position at a mental health center and landed behind twelve male veterans, eleven of whom had scored below her.3Legal Information Institute. Personnel Administrator of Massachusetts v. Feeney
The demographic picture explained why her experience was not unusual. Over 98 percent of Massachusetts veterans at the time were male; only 1.8 percent were female, a direct product of federal restrictions on women’s military service. Among new permanent civil service appointments made between 1963 and 1973, 54 percent of the men hired had veteran status, compared with 1.8 percent of the women. On each of 50 sample eligible lists introduced at trial, at least one woman who would otherwise have been certified for appointment was displaced by a lower-scoring veteran.1Justia. Personnel Adm’r of Massachusetts v. Feeney
A three-judge federal district court struck the preference down. The Supreme Court vacated that ruling and sent the case back to be reconsidered under Washington v. Davis, its 1976 decision holding that a racially disproportionate impact does not by itself violate equal protection.4Justia. Washington v. Davis On remand the district court again ruled for Feeney, reasoning that the harm to women was “too inevitable to have been unintended.” Massachusetts appealed, and the Supreme Court took the case to decide whether the preference could survive a discriminatory intent standard.
The Rule the Court Announced
Justice Stewart, writing for the majority, laid out a two-step inquiry for facially neutral laws attacked as sex discrimination. First, is the classification genuinely neutral, or does it draw a line based on sex either openly or covertly? Second, if the law is neutral on its face, do its adverse effects reflect intentional discrimination against the affected group?
On step one, the Court found that the statute drew a line between veterans and non-veterans, not between men and women. Veteran status was not exclusively male, and the non-veteran class contained large numbers of men — far too many, the Court said, to support the inference that the preference was a pretext for favoring men over women.1Justia. Personnel Adm’r of Massachusetts v. Feeney
Step two produced the case’s most quoted formulation. The Court accepted that the legislature knew the preference would hurt women; the demographics made that obvious. But awareness of harmful consequences, the Court held, is not the same as discriminatory purpose. Purpose requires that the legislature chose the policy “because of” its negative effects on a protected group, not merely “in spite of” those effects. Foresight that a law will harm women is not enough; the harm must be part of the reason the law exists.1Justia. Personnel Adm’r of Massachusetts v. Feeney
Why the Majority Upheld the Preference
Applying that framework, seven Justices concluded that Massachusetts had enacted and maintained the preference to reward military service, a legitimate and gender-neutral objective. The long history of veterans’ preference laws in Massachusetts and across the country, stretching back well before sex discrimination became a constitutional concern, supported the conclusion that the preference was about honoring service rather than excluding women.5Oyez. Personnel Administrator of Massachusetts v. Feeney
Stewart also stressed that the law operated against non-veteran men just as harshly as against non-veteran women. A man who had never served faced the same barrier Feeney did. That many more men than women cleared it was a product of federal military recruitment policies, not the state hiring statute. Without evidence that the legislature adopted the preference as a tool for keeping women in lower-tier roles, the law survived review.1Justia. Personnel Adm’r of Massachusetts v. Feeney
The Marshall–Brennan Dissent
Justices Marshall and Brennan dissented. Their central objection was that the majority’s “because of” standard set an impossibly high bar. When a law’s impact on women is this severe and this predictable, they argued, the legislature cannot credibly disclaim responsibility by pointing to another goal. The exclusion of women was not a surprising side effect; it was a mathematical certainty built into the structure of the preference.1Justia. Personnel Adm’r of Massachusetts v. Feeney
Because federal law had traditionally barred women from the military, the dissenters saw the preference as favoring a class from which women had been systematically excluded. In their view, the majority’s intent standard effectively immunized any facially neutral law from equal protection challenge, no matter how catastrophic or obvious its effects, as long as the legislature could point to some other reason for enacting it.
What the Case Changed
The “because of, not in spite of” test became one of the most influential formulations in equal protection law. Its reach extended far beyond veterans’ preference. In McCleskey v. Kemp (1987), the Court relied on the same discriminatory purpose requirement to reject a challenge to Georgia’s capital sentencing system, brushing aside a statistical study showing that defendants charged with killing white victims were far more likely to be sentenced to death than those whose victims were Black. Statistical disparities, the Court said, were insufficient without proof that the decision-makers in the specific case acted with discriminatory intent.6Justia. McCleskey v. Kemp
The Feeney standard has drawn persistent criticism from scholars who argue that proving legislative motive is nearly impossible. Lawmakers rarely announce discriminatory purposes in the legislative record, and the “because of” test gives them no reason to start. Defenders counter that a looser rule would let courts strike down any statute producing unequal outcomes across demographic groups.
Feeney and Title VII
The case also marks a gap between constitutional and statutory anti-discrimination law that still matters. Under the Fourteenth Amendment, Feeney and Washington v. Davis require proof of discriminatory purpose; lopsided outcomes alone are not enough.4Justia. Washington v. Davis
Title VII of the Civil Rights Act operates differently. Under the disparate impact theory recognized in Griggs v. Duke Power Co. and later codified in the Civil Rights Act of 1991, an employer can be held liable for a facially neutral practice that disproportionately harms a protected group, even without proof of discriminatory motive. The employer must show the practice is job-related and consistent with business necessity. The 1991 Act specifically noted that its expanded damages provisions for intentional discrimination do not apply to disparate impact claims.7U.S. Equal Employment Opportunity Commission. Civil Rights Act of 1991
A state employment policy like the Massachusetts preference could therefore survive an equal protection challenge, as it did in Feeney, while remaining potentially vulnerable to a Title VII disparate impact claim. The constitutional standard is deliberately harder to satisfy.
The Preference After Feeney
Massachusetts still maintains the tiered veterans’ preference under Chapter 31, Section 26: disabled veterans first, then other veterans, then certain surviving spouses, then all remaining candidates.2General Court of Massachusetts. Massachusetts General Laws Chapter 31 Section 26 – Order of Persons on Eligible Lists; Veterans Preference
The federal government uses a point system instead of an absolute preference. Qualifying veterans receive five extra points on their exam scores, and veterans with service-connected disabilities or a Purple Heart receive ten. The preference applies to initial hiring but not to promotions, transfers, or internal reassignments.8United States Secret Service. Veterans’ Preference Most states offer some form of veterans’ preference in public employment, though the mechanisms vary. Absolute-preference systems like the one Feeney challenged are rare today, in part because the demographic composition of the military has shifted substantially since 1979.