In Jefferson v. Sewon America, Inc., 17-11802 (11th Cir. June 1, 2018), the Eleventh Circuit addressed the scope of section 703(a)(2) of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-2(a)(2)), which 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." The scope of this provision is rarely litigated, so any decision that provides some insight is worth highlighting. The court allowed Jerberee Jefferson to proceed under section 703(a)(1) with her claim that she was denied a transfer because of her race, but refused to allow her to challenge the action under section 703(a)(2), reasoning that the latter provision "applies not to discrete decisions made by an employer directed at an individual employee, but to categorical policies that have a discriminatory purpose or effect."
This analysis strikes me as correct. The Supreme Court has previously described 703(a)(1) as the disparate treatment provision and 703(a)(2) as the disparate impact provision. Consistent with that principle, the Eleventh Circuit, concluded that 703(a)(2) targets policies of general applicability, rather than an isolated instance of disparate treatment, as Jefferson had alleged.
It's not clear whether this limitation will have a practical effect on plaintiffs' ability to bring discrimination claims under Title VII, since the vast majority of claims are brought under 703(a)(1). Taking a cue from the EEOC, however, Jefferson may have alleged violations of both 703(a)(1) and 703(a)(2) because she thought the court might conclude that her transfer was not a materially adverse action covered by (a)(1) but was nevertheless actionable under (a)(2). In EEOC v. AutoZone, Inc., the EEOC argued that any action to limit, segregate, or classify employees because of race or another protected characteristic constitutes a per se Title VII violation under (a)(2). The Seventh Circuit rejected this contention, but it's possible that a different circuit will agree with the EEOC. If so, then the Eleventh Circuit's decision might preclude plaintiffs from challenging some practices that are not actionable under section 703(a)(1) unless they have a disparate impact on a protected class.
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.