Page:Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc.pdf/30

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TEXAS DEPT. OF HOUSING AND COMMUNITY AFFAIRS v. INCLUSIVE COMMUNITIES PROJECT, INC.

Thomas, J., dissenting

provision made it "an unlawful employment practice for an employer—

"(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

"(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin." §703, 78 Stat. 255 (emphasis added).[1]

Each paragraph in §2000e–2(a) is limited to actions taken “because of ” a protected trait, and “the ordinary meaning of 'because of' is ‘by reason of' or 'on account of,'" University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. ___, ___ (2013) (slip op., at 9) (some internal quotation marks omitted). Section 2000e–2(a) thus applies only when a protected characteristic "was the 'reason' that the employer decided to act." Id., at ___ (slip op., at 10) (some internal quotation marks omitted).[2] In other words, "to
  1. The current version of §2000e–2(a) is almost identical, except that §2000e–2(a)(2) makes it unlawful for an employer "to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin." (Emphasis added.) This change, which does not impact my analysis, was made in 1972. 86 Stat. 109.
  2. In 1991, Congress added §2000e–2(m) to Title VII, which permits a plaintiff to establish that an employer acted "because of" a protected characteristic by showing that the characteristic was "a motivating factor" in the employer’s decision. Civil Rights Act of 1991, §107(a), 105 Stat. 1075. That amended definition obviously does not legitimize disparate-impact liability, which is distinguished from disparate-