442 U.S. 256, 279 (1979)
Helen B. Feeney, a Massachusetts resident, entered the workforce in 1948 and held a variety of jobs in the private sector for the next fourteen years.1 She first entered the state civil service system in 1963 after competing successfully for a Senior Clerk Stenographer position in the Massachusetts Civil Defense Agency.2 She worked there for four years and was promoted in 1967 to Federal Funds and Personnel Coordinator in the same agency.3 The agency and her job were eliminated in 1975.4
During her twelve years of public employment, Feeney took and passed multiple open competitive civil service examinations.5 She received the second-highest score on a 1971 examination for a position with the Board of Dental Examiners and the third-highest score on a 1973 test for an Administrative Assistant position with a mental health center.6 Despite these strong performances, the veterans' preference placed her behind multiple male veterans on the eligible lists, some with lower scores, and she was never certified for appointment.7
The Massachusetts veterans' preference statute, Mass. Gen. Laws Ann., ch. 31, § 23, applies to all positions in the state's classified civil service, which constitute approximately 60 percent of the public jobs in the state.8 It requires that disabled veterans, veterans, and surviving spouses and surviving parents of veterans who achieve passing scores be ranked above all other candidates on eligible lists.9 The preference originated in 1884 as a tie-breaking measure for Civil War veterans and blossomed into an absolute preference in 1895 when the state exempted veterans from all merit selection requirements.10 In 1919 the formula was modified to provide a priority in eligibility rather than an absolute preference in hiring, and it has since been extended to cover veterans of later wars.11
At the time this litigation began, over 98 percent of the veterans in Massachusetts were male.12 During the decade between 1963 and 1973, 47,005 new permanent appointments were made in the classified official service.13 Of the women appointed, 1.8 percent were veterans, while 54 percent of the men had veteran status.14 Feeney sued the Personnel Administrator of Massachusetts and other state officials under 42 U.S.C. § 1983, alleging that the absolute preference unconstitutionally denied women equal protection of the laws.15 A three-judge District Court ruled in her favor in 1976.16 After this Court vacated the judgment and remanded for reconsideration in light of Washington v. Davis, the District Court reaffirmed its conclusion in 1978, and the Attorney General appealed directly to this Court.17
Whether Massachusetts, in granting an absolute lifetime preference to veterans under Mass. Gen. Laws Ann., ch. 31, § 23, has discriminated against women in violation of the Equal Protection Clause of the Fourteenth Amendment?18
A facially neutral statute that has a disproportionately adverse effect upon women violates the Equal Protection Clause only if the adverse effect reflects invidious gender-based discrimination, meaning the legislature selected the course of action at least in part because of, not merely in spite of, its adverse effects upon women.19
No. The statute is neutral on its face because its definition of veteran has always been gender-neutral and applies to veterans of either sex.20 The District Court found that the preference serves legitimate and worthy purposes and was not established for the purpose of discriminating against women.21 Although the impact upon women is severe, with over 98 percent of veterans being male and only 1.8 percent of female appointees holding veteran status between 1963 and 1973, this impact is an unavoidable consequence of a legitimate policy favoring veterans rather than evidence of invidious intent.22 Feeney repeatedly scored well on examinations yet was ranked below veterans on every eligible list.
The appellee failed to demonstrate that the law in any way reflects a purpose to discriminate on the basis of sex.23
The Massachusetts veterans' preference statute does not violate the Equal Protection Clause of the Fourteenth Amendment.24
Related opinions on this issue
Joined by Justice White
Justice Stevens concurred in the Court's opinion.25 He confessed uncertainty about any difference between the two questions posed by the majority regarding whether the classification is overtly or covertly gender based.26 For Stevens, the answer is largely provided by the fact that the number of males disadvantaged by Massachusetts' veterans' preference is 1,867,000, which is sufficiently large and sufficiently close to the number of disadvantaged females at 2,954,000.27
This numerical comparison refutes the claim that the rule was intended to benefit males as a class over females as a class.28
Joined by Justice Brennan
Justice Marshall dissented.29 He argued that the absolute preference evinces purposeful gender-based discrimination because its foreseeable and inevitable impact reserves desirable state civil service employment an almost exclusively male prerogative.30 The legislative history reflects the Commonwealth's appreciation of the impact on women through exemptions for job requisitions especially calling for women that were retained for over seventy years.31
Because the statute is overinclusive with respect to the state's objectives of assisting veterans and less discriminatory alternatives such as point preferences are available, it cannot withstand scrutiny under the Equal Protection Clause.32