RICCI Glitch? The Unexpected Appearance of Transferred Intent in Title VII
FIU Legal Studies Research Paper Series No. 10-02
40 Pages Posted: 19 May 2010 Last revised: 28 Jun 2010
Date Written: March 31, 2010
In the case of Ricci v. DeStefano, the Supreme Court officially opened the door to what this Article identifies as a theory of “transferred intent” jurisprudence under Title VII. The principle of transferred intent, borrowed from tort and criminal law, has never before been seen as factoring into Title VII antidiscrimination jurisprudence.
In Ricci, the Supreme Court assumed that a city’s refusal to promote firefighters qualifying for promotion based on exams that appeared to disproportionately screen out members of minority groups amounted to deliberate discrimination, irrespective of their individual races or whether their individual races were actually taken into account. This Article reveals that the Supreme Court actually decided a very important issue that has split and confused courts, but failed to explicitly acknowledge that it was doing so. It argues that under the “transferred intent” theory of Title VII implicitly advanced in Ricci, future plaintiffs adversely affected by a decision that is “race-conscious” might be able to make out a viable case of intentional disparate treatment under Title VII if their race was not considered at all, or even if it was consciously disregarded in the decision-making process.
The ramifications of a theory of transferred intent under Title VII are immense. To the extent that a decision to fire, hire, promote, or even to spare someone from an adverse action may be deemed somehow race-based or race-cognizant, does this now mean that those who are adversely affected may sue under a disparate treatment theory pursuant to Title VII, regardless of whether their protected class status played any role in the decision? Whereas the Supreme Court looks to have resolved a split as to the reach of Title VII that has spanned both time and geography, it is fascinating to note that it looks to have done so implicitly and almost inadvertently. The sudden and wholly unannounced infusion of the principle of transferred intent into Title VII Supreme Court jurisprudence needs to be recognized, contemplated, and weighed, as do its consequences, as the law in this area moves forward. This Article seeks to ignite that discourse.
Keywords: TITLE VII, Ricci v. DeStefano, discrimination, transferred intent, disparate treatment theory, race-based, race-congnizant, Supreme Court, anti-discrimination, employment
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