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Discrimination is not preference or aversion; it is acting on the preference or aversion. If the most efficient method of hiring, adopted because it is the most efficient (not defended because it is efficient--the statute does not allow an employer to justify intentional discrimination by reference to efficiency, 42 U.S.C.S. § 2000e-2(k)(2)), just happens to produce a work force whose racial or religious or ethnic or national-origin or gender composition pleases the employer, that is not intentional discrimination. The motive is not a discriminatory one. Knowledge of a disparity is not the same thing as an intent to cause or maintain it. Or if, though the motives behind adoption of the method were a mixture of discrimination and efficiency, an employer would have adopted the identical method of recruitment even if he had no interest in the national origin of his employees, the fact that he had such an interest would not be a "but for" cause of the discriminatory outcome and again there would be no liability.
The Equal Employment Opportunity Commission brought this suit in 1985 against a small company which provides janitorial and cleaning services at a number of buildings in the Chicago area. The owner of the company is a Korean immigrant, as are most of its employees. The suit charges that the company discriminated in favor of persons of Korean origin, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., by relying mainly on word of mouth to obtain new employees. After a bench trial, the district judge dismissed the suit on the ground that the Commission had failed to prove discrimination, but he refused to award the company its attorney's fees, which the company had requested under provisions of law that have been interpreted to require that the suit have been frivolous. Both parties have appealed.
Did the circumstantial evidence compel an inference of discrimination?
The court affirmed the judgment of the district court, which dismissed the Commission’s suit because it failed to prove discrimination, but refused to award attorney's fees to the company. The court found that there was no direct evidence of discrimination, and that none could be inferred under the circumstances of the case. The company had valid reasons for hiring mainly by word of mouth, and it was not an indication of discrimination that defendant's work force was mostly Korean. The company requested attorney's fees under provisions of law that had been interpreted to require the suit to have been frivolous, and the court found that the suit was not frivolous.