Legal Commentary

While, as the Court said, a ?disparate-treatment plaintiff must establish ?that the defendant had a discriminatory intent or motive? for taking a job-related action,? does this mean that anyone who suffers an adverse action (and there is debate as to whether one was conferred here) because of a decision made on the basis of a racial consideration has been discriminated against ?because of? his race? The Court?s language on this point is not entirely clear. The Court proclaimed that the premise of its analysis was that ?[t]he City's actions would violate the disparate-treatment prohibition of Title VII absent some valid defense [because a]ll the evidence demonstrates that the City chose not to certify the examination results because of the statistical disparity based on race- i.e., how minority candidates had performed when compared to white candidates.? The Court noted that the District Court had concluded that the City?s ?own arguments ... show that the City's reasons for advocating non-certification were related to the racial distribution of the results,? and found, based on that, that ?[w]ithout some other justification, this express, race-based decisionmaking violates Title VII's command that employers cannot take adverse employment actions because of an individual's race.? The Court later noted that ?the City made its employment decision because of race,? when it ?rejected the test results solely because the higher scoring candidates were white.?

Title VII prohibits discrimination ?against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race?.? After reading this case, however, I have to take issue with the Court?s assertion that disparate treatment cases ?present ?the most easily understood type of discrimination.? As even the Court recited, disparate treatment claims succeed ?where an employer has ?treated a particular person less favorably than others because of? a protected trait.? But does this case open a door to what might be called a ?transferred intent? theory of Title VII, whereby one who is not the intended victim of a race-based decision may sue in the context of a policy in which another group is discriminated against?

Consider a tougher hypothetical. If an employer with an expressed bias against Asian Americans announced that in attempt to lower the number of Asian Americans in his workforce, he would be firing all employees who had one-syllable last names, and if a non Asian-American got fired because of this, would a cause of action under Title VII be viable? I ran this idea by Professor Anne Lofaso, and she commented that upon reading the case, she had thought that it would make proving discrimination cases easier for all Title VII plaintiffs.