Page:Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc.pdf/32

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

Thomas, J., dissenting

See Smith, supra, at 249 (opinion of O’Connor, J.). Section 2000e–2(a)(1) addresses hiring, firing, and setting the terms of employment, whereas §2000e–2(a)(2) generally addresses limiting, segregating, or classifying employees. But no decision is an unlawful employment practice under these paragraphs unless it occurs "because of such individual’s race, color, religion, sex, or national origin." §§2000e–2(a)(1), (2) (emphasis added).

Contrary to the majority's assumption, see ante, at 10–13, the fact that §2000e–2(a)(2) uses the phrase "otherwise adversely affect" in defining the employment decisions targeted by that paragraph does not eliminate its mandate that the prohibited decision be made "because of" a protected characteristic. Section 2000e–2(a)(2) does not make unlawful all employment decisions that "limit, segregate, or classify . . . employees . . . in any way which would . . . otherwise adversely affect [an individual's] status as an employee," but those that "otherwise adversely affect [an individual's] status as an employee, because of such individual’s race, color, religion, sex, or national origin." (Emphasis added); accord, 78 Stat. 255. Reading §2000e–2(a)(2) to sanction employers solely on the basis of the effects of their decisions would delete an entire clause of this provision, a result we generally try to avoid. Under any fair reading of the text, there can be no doubt that the Title VII enacted by Congress did not permit disparate-impact claims.[1]

  1. Even "[f ]ans . . . of Griggs [v. Duke Power Co., 401 U. S. 424 (1971),] tend to agree that the decision is difficult to square with the available indications of congressional intent." Lemos, The Consequences of Congress’s Choice of Delegate: Judicial and Agency Interpretations of Title VII, 63 Vand. L. Rev. 363, 399, n. 155 (2010). In the words of one of the decision’s defenders, Griggs "was poorly reasoned and vulnerable to the charge that it represented a significant leap away from the expectations of the enacting Congress." W. Eskridge, Dynamic Statutory Interpretation 78 (1994).