Thomas, J., dissenting
take action against an individual because of" a protected trait "plainly requires discriminatory intent." See Smithv. City of Jackson, 544 U. S. 228, 249 (2005) (O’Connor, J., joined by Kennedy and Thomas, JJ., concurring in judgment) (internal quotation marks omitted); accord, e.g., Gross v. FBL Financial Services, Inc., 557 U. S. 167, 176 (2009).
No one disputes that understanding of §2000e–2(a)(1). We have repeatedly explained that a plaintiff bringing an action under this provision "must establish 'that the defendant had a discriminatory intent or motive' for taking a job-related action." Ricci, supra, at 577 (quoting Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 986 (1988)). The only dispute is whether the same language—“because of "—means something different in §2000e–2(a)(2) than it does in §2000e–2(a)(1).
The answer to that question should be obvious. We ordinarily presume that "identical words used in different parts of the same act are intended to have the same meaning," Desert Palace, Inc. v. Costa, 539 U. S. 90, 101 (2003) (internal quotation marks omitted), and §2000e–2(a)(2) contains nothing to warrant a departure from that presumption. That paragraph "uses the phrase 'because of . . . [a protected characteristic]' in precisely the same manner as does the preceding paragraph—to make plain that an employer is liable only if its adverse action against an individual is motivated by the individual's [protected characteristic]." Smith, supra, at 249 (opinion of O’Connor, J.) (interpreting nearly identical provision of the Age Discrimination in Employment Act of 1967 (ADEA)).
The only difference between §2000e–2(a)(1) and §2000e–2(a)(2) is the type of employment decisions they address.
treatment liability precisely because the former does not require any discriminatory motive.
