Monday, July 6, 2009

Stone on Transferred Intent

Faculty-stone Kerri Stone (Florida-International) has a post at Prawfsblawg on transferred intent after the Supreme Court's recent decision in Ricci v. DeStefano.

She notes the majority's opinion seems to say that any person adversely affected by a decision in which race was a consideration (even if that person was not a member of that race) would have a disparate treatment claim under Title VII. She then observes:

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.

I am thinking of writing on this principle, and I’d love to hear others’ thoughts.

I think that this is probably a correct assessment of the bottom line, and it does seem to make some kinds of disparate treatment cases easier to prove. There's still the problem of showing that race is a consideration, which seems the bigger hurdle in most disparate treatment cases.


Employment Discrimination | Permalink

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