1 Foundations: Understanding Discrimination 1 Foundations: Understanding Discrimination

1.1 Unlawful employment practices 1.1 Unlawful employment practices

(a) Employer practices

It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or

(2) 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.

(b) Employment agency practices

It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin, or to classify or refer for employment any individual on the basis of his race, color, religion, sex, or national origin.

(c) Labor organization practices

It shall be an unlawful employment practice for a labor organization—

(1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin;

(2) to limit, segregate, or classify its membership or applicants for membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment, because of such individual's race, color, religion, sex, or national origin; or

(3) to cause or attempt to cause an employer to discriminate against an individual in violation of this section.

(d) Training programs

It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.

(e) Businesses or enterprises with personnel qualified on basis of religion, sex, or national origin; educational institutions with personnel of particular religion

Notwithstanding any other provision of this subchapter, (1) it shall not be an unlawful employment practice for an employer to hire and employ employees, for an employment agency to classify, or refer for employment any individual, for a labor organization to classify its membership or to classify or refer for employment any individual, or for an employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining programs to admit or employ any individual in any such program, on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise, and (2) it shall not be an unlawful employment practice for a school, college, university, or other educational institution or institution of learning to hire and employ employees of a particular religion if such school, college, university, or other educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of such school, college, university, or other educational institution or institution of learning is directed toward the propagation of a particular religion.

(f) Members of Communist Party or Communist-action or Communist-front organizations

As used in this subchapter, the phrase "unlawful employment practice" shall not be deemed to include any action or measure taken by an employer, labor organization, joint labor-management committee, or employment agency with respect to an individual who is a member of the Communist Party of the United States or of any other organization required to register as a Communist-action or Communist-front organization by final order of the Subversive Activities Control Board pursuant to the Subversive Activities Control Act of 1950 [50 U.S.C. 781 et seq.].

(g) National security

Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to fail or refuse to hire and employ any individual for any position, for an employer to discharge any individual from any position, or for an employment agency to fail or refuse to refer any individual for employment in any position, or for a labor organization to fail or refuse to refer any individual for employment in any position, if—

(1) the occupancy of such position, or access to the premises in or upon which any part of the duties of such position is performed or is to be performed, is subject to any requirement imposed in the interest of the national security of the United States under any security program in effect pursuant to or administered under any statute of the United States or any Executive order of the President; and

(2) such individual has not fulfilled or has ceased to fulfill that requirement.

(h) Seniority or merit system; quantity or quality of production; ability tests; compensation based on sex and authorized by minimum wage provisions

Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, or a system which measures earnings by quantity or quality of production or to employees who work in different locations, provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin, nor shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin. It shall not be an unlawful employment practice under this subchapter for any employer to differentiate upon the basis of sex in determining the amount of the wages or compensation paid or to be paid to employees of such employer if such differentiation is authorized by the provisions of section 206(d) of title 29.

(i) Businesses or enterprises extending preferential treatment to Indians

Nothing contained in this subchapter shall apply to any business or enterprise on or near an Indian reservation with respect to any publicly announced employment practice of such business or enterprise under which a preferential treatment is given to any individual because he is an Indian living on or near a reservation.

(j) Preferential treatment not to be granted on account of existing number or percentage imbalance

Nothing contained in this subchapter shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to this subchapter to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area.

(k) Burden of proof in disparate impact cases

(1)(A) An unlawful employment practice based on disparate impact is established under this subchapter only if—

(i) a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity; or

(ii) the complaining party makes the demonstration described in subparagraph (C) with respect to an alternative employment practice and the respondent refuses to adopt such alternative employment practice.


(B)(i) With respect to demonstrating that a particular employment practice causes a disparate impact as described in subparagraph (A)(i), the complaining party shall demonstrate that each particular challenged employment practice causes a disparate impact, except that if the complaining party can demonstrate to the court that the elements of a respondent's decisionmaking process are not capable of separation for analysis, the decisionmaking process may be analyzed as one employment practice.

(ii) If the respondent demonstrates that a specific employment practice does not cause the disparate impact, the respondent shall not be required to demonstrate that such practice is required by business necessity.

(C) The demonstration referred to by subparagraph (A)(ii) shall be in accordance with the law as it existed on June 4, 1989, with respect to the concept of "alternative employment practice".

(2) A demonstration that an employment practice is required by business necessity may not be used as a defense against a claim of intentional discrimination under this subchapter.

(3) Notwithstanding any other provision of this subchapter, a rule barring the employment of an individual who currently and knowingly uses or possesses a controlled substance, as defined in schedules I and II of section 102(6) of the Controlled Substances Act (21 U.S.C. 802(6)), other than the use or possession of a drug taken under the supervision of a licensed health care professional, or any other use or possession authorized by the Controlled Substances Act [21 U.S.C. 801 et seq.] or any other provision of Federal law, shall be considered an unlawful employment practice under this subchapter only if such rule is adopted or applied with an intent to discriminate because of race, color, religion, sex, or national origin.

(l) Prohibition of discriminatory use of test scores

It shall be an unlawful employment practice for a respondent, in connection with the selection or referral of applicants or candidates for employment or promotion, to adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race, color, religion, sex, or national origin.

(m) Impermissible consideration of race, color, religion, sex, or national origin in employment practices

Except as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.

(n) Resolution of challenges to employment practices implementing litigated or consent judgments or orders

(1)(A) Notwithstanding any other provision of law, and except as provided in paragraph (2), an employment practice that implements and is within the scope of a litigated or consent judgment or order that resolves a claim of employment discrimination under the Constitution or Federal civil rights laws may not be challenged under the circumstances described in subparagraph (B).

(B) A practice described in subparagraph (A) may not be challenged in a claim under the Constitution or Federal civil rights laws—

(i) by a person who, prior to the entry of the judgment or order described in subparagraph (A), had—

(I) actual notice of the proposed judgment or order sufficient to apprise such person that such judgment or order might adversely affect the interests and legal rights of such person and that an opportunity was available to present objections to such judgment or order by a future date certain; and

(II) a reasonable opportunity to present objections to such judgment or order; or


(ii) by a person whose interests were adequately represented by another person who had previously challenged the judgment or order on the same legal grounds and with a similar factual situation, unless there has been an intervening change in law or fact.


(2) Nothing in this subsection shall be construed to—

(A) alter the standards for intervention under rule 24 of the Federal Rules of Civil Procedure or apply to the rights of parties who have successfully intervened pursuant to such rule in the proceeding in which the parties intervened;

(B) apply to the rights of parties to the action in which a litigated or consent judgment or order was entered, or of members of a class represented or sought to be represented in such action, or of members of a group on whose behalf relief was sought in such action by the Federal Government;

(C) prevent challenges to a litigated or consent judgment or order on the ground that such judgment or order was obtained through collusion or fraud, or is transparently invalid or was entered by a court lacking subject matter jurisdiction; or

(D) authorize or permit the denial to any person of the due process of law required by the Constitution.


(3) Any action not precluded under this subsection that challenges an employment consent judgment or order described in paragraph (1) shall be brought in the court, and if possible before the judge, that entered such judgment or order. Nothing in this subsection shall preclude a transfer of such action pursuant to section 1404 of title 28.

Notes

References in Text

The Subversive Activities Control Act of 1950, referred to in subsec. (f), is title I (§§1–32) of act Sept. 23, 1950, ch. 1024, 64 Stat. 987, which is classified principally to subchapter I (§781 et seq.) of chapter 23 of Title 50, War and National Defense. For complete classification of this Act to the Code, see Tables.

The Controlled Substances Act, referred to in subsec. (k)(3), is title II of Pub. L. 91–513, Oct. 27, 1970, 84 Stat. 1242, which is classified principally to subchapter I (§801 et seq.) of chapter 13 of Title 21, Food and Drugs. For complete classification of this Act to the Code, see Short Title note set out under section 801 of Title 21 and Tables.

The Federal Rules of Civil Procedure, referred to in subsec. (n)(2)(A), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure.

Amendments

1991—Subsec. (k). Pub. L. 102–166, §105(a), added subsec. (k).

Subsec. (l). Pub. L. 102–166, §106, added subsec. (l).

Subsec. (m). Pub. L. 102–166, §107(a), added subsec. (m).

Subsec. (n). Pub. L. 102–166, §108, added subsec. (n).

1972—Subsec. (a)(2). Pub. L. 92–261, §8(a), inserted "or applicants for employment" after "his employees".

Subsec. (c)(2). Pub. L. 92–261, §8(b), inserted "or applicants for membership" after "membership".

Effective Date of 1991 Amendment

Amendment by Pub. L. 102–166 effective Nov. 21, 1991, except as otherwise provided, see section 402 of Pub. L. 102–166, set out as a note under section 1981 of this title.

Subversive Activities Control Board

Subversive Activities Control Board established by act Sept. 23, 1950, ch. 1024, §12, 64 Stat. 977, and ceased to operate on June 30, 1973.

1.2 Slack v. Havens 1.2 Slack v. Havens

7 F.E.P. 885 (S.D. Cal. 1973), aff'd as modified, 522 F.2d 1091 (9th Cir. 1975).

THOMPSON, Jr., D.J.
This action is brought by the plaintiffs, four Black women, who allege they were discriminatorily discharged due to their race, in violation of the Civil Rights Act of 1964, specifically 42 U.S.C. § 2000e-2(a)...
Plaintiffs seek back pay or lost compensation, punitive damages and injunctive relief.
Defendant Glenn G. Havens (sued herein as Glenn C. Havens) a sole proprietor doing business as Havens Industries (hereinafter Industries) was the employer of the plaintiffs on February 1, 1968, the date plaintiffs’ employment was terminated.
Following trial in this matter by the court sitting without a jury, counsel for the parties filed proposed findings of fact and conclusions of law. Having considered the evidence, oral argument and all the records of this case, the Court makes the following findings of fact and conclusions of law.

...

On January 31, 1968, plaintiffs Berrel Matthews, Emily Hampton and Isabell Slack were working in the bonding and coating department of defendant Industries’ plant, engaged in preparing and assembling certain tubing components for defendant’s product. A white co-worker, Sharon Murphy, was also assigned to the bonding and coating department on that day and was performing the same general work as the three plaintiffs mentioned above. The fourth plaintiff, Kathleen Hale, was working in another department on January 31st.
Near the end of the working day, plaintiffs Matthews, Hampton and Slack were called together by their immediate supervisor, Ray Pohasky, and informed that the following morning, upon reporting to work, they would suspend regular production and engage in a general cleanup of the bonding and coating department. The cleanup was to consist of washing walls and windows whose sills were approximately 12 to 15 feet above the floor, cleaning light fixtures and scraping the floor which was caked with deposits of hardened resin. Plaintiffs Matthews, Hampton and Slack protested the assigned work, arguing that it was not within their job description, which included only light cleanup in their immediate work areas, and that it was too hard and dangerous. Mr. Pohasky agreed that it was hard work and said that he would check to see if they had to do it.
On the following work day, February 1, 1968, plaintiffs Matthews, Hampton and Slack reported to the bonding and coating department along with Sharon Murphy, their white co-worker. However, Mr. Pohasky excused Sharon Murphy to another department for the day, calling in plaintiff Kathleen Hale from the winding department where she had been on loan from the bonding and coating department for about a week. Mr. Pohasky them repeated his announcement that the heavy cleaning would have to be done. The four plaintiffs joined in protest again at the heavy cleanup work. They pointed out that they had not been hired to do janitorial type work, and one of the plaintiffs inquired as to why Sharon Murphy had been excused from the cleanup detail even though she had very little seniority among the ladies in the bonding and coating department. In reply, they were told by Mr. Pohasky that they would do the work, “or else.” There was uncontradicted testimony that at sometime during their conversation Pohasky injected the statement that “Colored people should stay in their places,” or words to that effect. Some further discussion took place between plaintiffs and Pohasky and then with Gary Helming, plaintiffs’ general supervisor, but eventually each of the plaintiffs was taken to the office of Mr. Helming where she was given her final paycheck and fired. Plaintiff Matthews testified without contradiction that on the way to Mr. Helming’s office Mr. Pohasky made the comment that “Colored folks are hired to clean because they clean better.”
The general cleanup work was later performed by newly-hired male employees. Sharon Murphy was never asked to participate in this cleanup before or after the plaintiffs’ termination. The day following the plaintiffs’ firing a conference was held between plaintiffs and defendant Glenn G. Havens, together with Mr. Helming, Mr. Pohasky and other company officials, but the dispute was not resolved as to the work plaintiffs were expected to do. Apparently, the plaintiffs were offered reinstatement if they would now agree to do the same cleanup work. They refused.
....
Having concluded that Defendant is an "employer" under Title VII of the Civil Rights Act of 1964 for purposes of this action, we must next consider whether plaintiff's termination amounted to unlawful discmrination against them because of their race.  Defendants deny that the facts support such a conclusion, contending that plaintiff's case amounts to nothing more than a dispute as to their job classification. 
Admittedly, the majority of the discussion between plaintiffs and Industries’ management on January 31 and February 1, 1968 centered around the nature of the duties which plaintiffs were ordered to perform. Plaintiffs pointed out that they had not been hired with the understanding that they would be expected to perform more than light cleanup work immediately adjacent to their work stations. They were met with an ultimatum that they do the work –or else. Additionally, no explanation was offered as to why Sharon Murphy, a white co-worker, had been transferred out of the bonding and coating department the morning that the heavy cleaning was to begin there, while plaintiff Hale was called back from the winding department, where she had been working, to the bonding and coating area, specifically for participation in the general cleanup. It is not disputed that Sharon Murphy had less seniority than all of the plaintiffs except plaintiff Hale (having been hired 8 days prior to plaintiff Hale) and  no evidence of a bonafide business reason was ever educed by defendants as to why Sharon Murphy was excused from assisting the plaintiffs in the proposed cleaning project.
The only evidence that did surface at the trial regarding the motives for the decisions of the management of defendant Industries consisted of certain statements by supervisor Pohasky, who commented to plaintiff Matthews that “colored folks were hired to clean because they cleaned better,” and “colored folks should stay in their place,” or words to that effect. Dendants attempt to disown these statements with the argument that Pohasky’s state of mind and arguably discriminatory  conduct was immaterial and not causative of the plaintiffs’ discharge.
But defendants cannot be allowed to divorce Mr. Pohasky’s conduct from that of Industries so easily. First of all, 42 U.S.C. § 2000e(b) expressly includes “any agent” of an employer within the definition of “employer.” Secondly, there was a definite causal relation between Pohasky’s apparently discriminatory conduct and the firings. Had Pohasky not discriminated against the plaintiffs by demanding they perform work he would not require of a white female employee, they would not have been faced with the unreasonable choice of having to choose between obeying his discriminatory work order and the loss of their employment. Finally, by backing up Pohasky’s ultimatum the top level management of Industries ratified his discriminatory conduct and must be held liable for the consequences thereof.
From all the evidence before it, this Court is compelled to find that defendant Industries,through its managers and supervisor, Mr. Pohasky, meant to require the plaintiffs to perform the admittedly heavy and possibly dangerous work of cleaning the bonding and coating department, when they would not require the same work from plaintiffs’ white fellow employee. Furthermore, it meant to enforce that decision by firing the plaintiffs when they refused to perform that work. The consequence of the above was racial discrimination, whatever the motivation of the management of defendant Industries may have been. Therefore, the totality of Industries’ conduct amounted, in the Court’s opinion, to an unlawful employment practice
prohibited by the Civil Rights Act, specifically, 42 U.S.C. § 2000e-2(a)(1).

1.3 By Any Other Name? On Being "Regarded As" Black, and Why Title VII Should Apply Even If Lakisha and Jamal are White 1.3 By Any Other Name? On Being "Regarded As" Black, and Why Title VII Should Apply Even If Lakisha and Jamal are White

Angela Onwuachi Willig & Mario Barnes, 2005 Wis. L. Rev. (2005).

It is readily accepted among race scholars, including sociologists, that race, although considered primarily in terms of physical features, carries different meanings based upon societal understandings of particular groups. In other words, discrimination against racial minorities, Blacks in particular, is not merely the result of an aversion to dark skin in itself, but to what that dark skin signifies. For many employers, dark skin has signified laziness, unproductivity, and other stereotypes that have wrongfully been associated with all black workers.

To this end, numerous scholars have challenged and criticized the idea of race as a mere biological fact, demonstrating the ways in which race is formed and transformed under a constantly shifting society. For example, Professors Michael Omi and Howard Winant have theorized about how race is formed in society through a sociohistorical process that may transform, create, or eliminate racial categories. Likewise, Professor Ian Haney López has explained the ways in which race, although often signaled by phenotype, is a social construct.Indeed, in addition to physical features, race can and has been defined by a variety of identifying factors, such as class, geography, and politics.

Because race is not purely physical but also socially constructed, racial discrimination often takes the form of unfavorable treatment based upon socially constructed ideas about characteristics that are viewed as being linked to a particular racial group.As Professor Juan Perea once explained, “Identifying traits need not . . . be physical. In our culture, foreign-sounding names, like corresponding accents or languages, often elicit prejudice.”

Indeed, several recent studies have demonstrated the ways in which race is socially constructed around characteristics that have come to signal or gain meaning as a defining feature of a racial group and, as a result, have created a basis on which employers and others may discriminate against an individual due to race-based associations or prejudices toward such characteristics. In the same way that people “often link color with undesirable personal qualities such as laziness, incompetence, and hostility,” they also often link factors, such as name or voice, with color and race and any attendant negative stereotypes. In other words, characteristics such as a person's name or voice can, in some instances, “carry enough ethnic meaning to . . . burden [his or her] daily existence with stereotypes imposed by others.

[I]ndividuals are not only discriminated against on the job market because of animus toward their racial group as defined by phenotype, but also because they are perceived, whether consciously or unconsciously, as belonging to a particular racial group and as having the negative qualities linked to stereotypes of that group. For instance, an individual, whether or not he or she actually is black, may be discriminated against because he or she is perceived to be or “regarded as” black (that is, what it socially means to be black) based upon a proxy for blackness....

Given the trend in Title VII case law, a black plaintiff with an African American-sounding name who sent a résumé to a prospective employer could not state a claim for race discrimination even if she could show that an applicant with a similar résumé but a white-sounding name received a callback and she did not. The black plaintiff's claim would likely fail in federal courts on the ground that the two factors, name and race, while highly correlated, are not equivalent. Likewise, if a white plaintiff filed a claim asserting that she was not given a callback because “she sounded too black,” her claim would likely fail even if the employer admitted that the sound of the applicant's voice was the reason for the decision. The reasoning would be that discriminating against someone because they “sound black” is not discrimination on the basis of an impermissible trait and therefore is not covered by Title VII.

Such rulings by federal courts, however, would be misguided because they would essentially eviscerate one of the purposes of Title VII--to combat decisions based upon negative stereotypes associated with particular racial groups.They would fail to acknowledge the fact that discrimination based upon race actually encompasses discrimination based upon social meanings of race--that is, what it means to be perceived as black, whether one is or is not actually black. Moreover, these holdings by courts would actually fly in the face of the Supreme Court's actual words in Hazen Paper [a case about the Americans with Disabilities Act], where the Court specifically noted that it did not intend to “preclude the possibility that an employer who targets employees with a particular [feature] on the assumption that these employees are likely to [belong to a certain group] thereby engages in . . . discrimination.” As the Supreme Court explained in Hazen Paper, an employer may have discriminated against an individual where the employer has “suppose[d] a correlation between two factors and act[ed] accordingly.”

If nothing else, Hazen Paper and the purposes of Title VII indicate that claims brought by an individual who has experienced discrimination because he or she was “regarded as” belonging to a certain race should fall under the protection of Title VII.

It is readily accepted among race scholars, including sociologists, that race, although considered primarily in terms of physical features, carries different meanings based upon societal understandings of particular groups. In other words, discrimination against racial minorities, Blacks in particular, is not merely the result of an aversion to dark skin in itself, but to what that dark skin signifies.46 For many employers, dark skin has signified laziness, unproductivity, and other stereotypes that have wrongfully been associated with all black workers.47

*1296 To this end, numerous scholars have challenged and criticized the idea of race as a mere biological fact, demonstrating the ways in which race is formed and transformed under a constantly shifting society. For example, Professors Michael Omi and Howard Winant have theorized about how race is formed in society through a sociohistorical process that may transform, create, or eliminate racial categories.48 Likewise, Professor Ian Haney López has explained the ways in which race, although often signaled by phenotype, is a social construct.49 Indeed, in addition to physical features, race can and has been defined by a variety of identifying factors, such as class, geography, and politics.50

Because race is not purely physical but also socially constructed, racial discrimination often takes the form of unfavorable treatment based upon socially constructed ideas about characteristics that are viewed as being linked to a particular racial group.51 As Professor Juan Perea once explained, “Identifying traits need not . . . be physical. In our culture, foreign-sounding names, like corresponding accents or languages, often elicit prejudice.”52

Indeed, several recent studies have demonstrated the ways in which race is socially constructed around characteristics that have come to signal or gain meaning as a defining feature of a racial group and, as a result, have created a basis on which employers and others may discriminate against an individual due to race-based associations or prejudices toward such characteristics.53 In the same way that people “often link color with undesirable personal qualities such as laziness, incompetence, and hostility,”54 they also often link factors, such as *1297 name or voice, with color and race and any attendant negative stereotypes. In other words, characteristics such as a person's name or voice can, in some instances, “carry enough ethnic meaning to . . . burden [his or her] daily existence with stereotypes imposed by othersIt is readily accepted among race scholars, including sociologists, that race, although considered primarily in terms of physical features, carries different meanings based upon societal understandings of particular groups. In other words, discrimination against racial minorities, Blacks in particular, is not merely the result of an aversion to dark skin in itself, but to what that dark skin signifies.46 For many employers, dark skin has signified laziness, unproductivity, and other stereotypes that have wrongfully been associated with all black workers.47

*1296 To this end, numerous scholars have challenged and criticized the idea of race as a mere biological fact, demonstrating the ways in which race is formed and transformed under a constantly shifting society. For example, Professors Michael Omi and Howard Winant have theorized about how race is formed in society through a sociohistorical process that may transform, create, or eliminate racial categories.48 Likewise, Professor Ian Haney López has explained the ways in which race, although often signaled by phenotype, is a social construct.49 Indeed, in addition to physical features, race can and has been defined by a variety of identifying factors, such as class, geography, and politics.50

Because race is not purely physical but also socially constructed, racial discrimination often takes the form of unfavorable treatment based upon socially constructed ideas about characteristics that are viewed as being linked to a particular racial group.51 As Professor Juan Perea once explained, “Identifying traits need not . . . be physical. In our culture, foreign-sounding names, like corresponding accents or languages, often elicit prejudice.”52

Indeed, several recent studies have demonstrated the ways in which race is socially constructed around characteristics that have come to signal or gain meaning as a defining feature of a racial group and, as a result, have created a basis on which employers and others may discriminate against an individual due to race-based associations or prejudices toward such characteristics.53 In the same way that people “often link color with undesirable personal qualities such as laziness, incompetence, and hostility,”54 they also often link factors, such as *1297 name or voice, with color and race and any attendant negative stereotypes. In other words, characteristics such as a person's name or voice can, in some instances, “carry enough ethnic meaning to . . . burden [his or her] daily existence with stereotypes imposed by othersIt is readily accepted among race scholars, including sociologists, that race, although considered primarily in terms of physical features, carries different meanings based upon societal understandings of particular groups. In other words, discrimination against racial minorities, Blacks in particular, is not merely the result of an aversion to dark skin in itself, but to what that dark skin signifies.46 For many employers, dark skin has signified laziness, unproductivity, and other stereotypes that have wrongfully been associated with all black workers.47

*1296 To this end, numerous scholars have challenged and criticized the idea of race as a mere biological fact, demonstrating the ways in which race is formed and transformed under a constantly shifting society. For example, Professors Michael Omi and Howard Winant have theorized about how race is formed in society through a sociohistorical process that may transform, create, or eliminate racial categories.48 Likewise, Professor Ian Haney López has explained the ways in which race, although often signaled by phenotype, is a social construct.49 Indeed, in addition to physical features, race can and has been defined by a variety of identifying factors, such as class, geography, and politics.50

Because race is not purely physical but also socially constructed, racial discrimination often takes the form of unfavorable treatment based upon socially constructed ideas about characteristics that are viewed as being linked to a particular racial group.51 As Professor Juan Perea once explained, “Identifying traits need not . . . be physical. In our culture, foreign-sounding names, like corresponding accents or languages, often elicit prejudice.”52

Indeed, several recent studies have demonstrated the ways in which race is socially constructed around characteristics that have come to signal or gain meaning as a defining feature of a racial group and, as a result, have created a basis on which employers and others may discriminate against an individual due to race-based associations or prejudices toward such characteristics.53 In the same way that people “often link color with undesirable personal qualities such as laziness, incompetence, and hostility,”54 they also often link factors, such as *1297 name or voice, with color and race and any attendant negative stereotypes. In other words, characteristics such as a person's name or voice can, in some instances, “carry enough ethnic meaning to . . . burden [his or her] daily existence with stereotypes imposed by othersA. Race as a Social Construct
It is readily accepted among race scholars, including sociologists, that race, although considered primarily in terms of physical features, carries different meanings based upon societal understandings of particular groups. In other words, discrimination against racial minorities, Blacks in particular, is not merely the result of an aversion to dark skin in itself, but to what that dark skin signifies.46 For many employers, dark skin has signified laziness, unproductivity, and other stereotypes that have wrongfully been associated with all black workers.47
*1296 To this end, numerous scholars have challenged and criticized the idea of race as a mere biological fact, demonstrating the ways in which race is formed and transformed under a constantly shifting society. For example, Professors Michael Omi and Howard Winant have theorized about how race is formed in society through a sociohistorical process that may transform, create, or eliminate racial categories.48 Likewise, Professor Ian Haney López has explained the ways in which race, although often signaled by phenotype, is a social construct.49 Indeed, in addition to physical features, race can and has been defined by a variety of identifying factors, such as class, geography, and politics.50
Because race is not purely physical but also socially constructed, racial discrimination often takes the form of unfavorable treatment based upon socially constructed ideas about characteristics that are viewed as being linked to a particular racial group.51 As Professor Juan Perea once explained, “Identifying traits need not . . . be physical. In our culture, foreign-sounding names, like corresponding accents or languages, often elicit prejudice.”52
Indeed, several recent studies have demonstrated the ways in which race is socially constructed around characteristics that have come to signal or gain meaning as a defining feature of a racial group and, as a result, have created a basis on which employers and others may discriminate against an individual due to race-based associations or prejudices toward such characteristics.53 In the same way that people “often link color with undesirable personal qualities such as laziness, incompetence, and hostility,”54 they also often link factors, such as *1297 name or voice, with color and race and any attendant negative stereotypes. In other words, characteristics such as a person's name or voice can, in some instances, “carry enough ethnic meaning to . . . burden [his or her] daily existence with stereotypes imposed by others.”55
The next section of this Article, Part I.B, will discuss several features that are often used as proxies for determining an individual's race, in particular a person's name and voice or accent.56 Part I.B.1 focuses on the use of names as proxies for race in social and legal situations, and Part I.B.2 concentrates on the use of voice, or the sound of a voice specifically, as a proxy for race, ethnicity, and national origin under similar circumstances.
B. The Operation of Proxies for Race
1. name
In the post-Civil Rights Era, where employers are readily aware that outward racial prejudices are not a legally acceptable basis for making employment decisions, employers can and do use proxies for race, both consciously and unconsciously, as a means of excluding *1298 certain workers from jobs.57 For example, as stated in the Introduction of this Article, two scholars, Bertrand and Mullainathan, conducted a study on employment discrimination in hiring that demonstrated the ways in which job applicants face discrimination entirely based on social signals of race due to their names,58 in particular whether their names sounded like African American or white names.59 In fact, in these experimental cases, the Boston- and Chicago-area employers that were sent the identical fictitious résumés of applicants with both African American and white-sounding names never saw faces for the matching fictitious applicants, nor did they have any means for determining the race of an applicant other than the applicant's names themselves.60 Yet, those with African American-sounding names stood at a significant disadvantage in the callback process, with applicants with white-sounding names receiving fifty percent more callbacks.61 In essence, an applicant with a white-sounding name and no markers that identified him or her as black could expect one callback for every ten job advertisements while an African American “would need to apply to *1299 15 different ads to achieve the same result.”62 As Bertrand and Mullainathan asserted, “a white name yield[ed] as many more callbacks as an additional eight years of experience” would have yielded for an African American.63
Additionally, Bertrand and Mullainathan found that the gap between black and white job applicants widened with résumé quality.64 Although higher quality résumés65 generally resulted in higher callback rates, the benefit of having a higher quality résumé for a perceived African American applicant was statistically insignificant but was statistically significant for those perceived to be white applicants.66 The callback rate for white applicants with a higher quality résumé was eleven percent compared to 8.8 percent for those with lower quality résumés, with a statistically significant difference of 2.51 percentage points or thirty percent.67 However, black applicants with higher quality résumés received callbacks 6.99 percent of the time, compared to 6.41 percent of the time for those with lower quality résumés, resulting in just a .58 percent difference in percentage points, or nine percent.68
*1300 After the results of Bertrand and Mullainathan's study were revealed, numerous reporters interviewed human resources employees to verify the results, finding that in many instances such employees were encouraged, if not ordered, to eliminate applications or résumés with African American-sounding names.69 Indeed, some job applicants, who are readily aware of hiring biases based on ethnic-sounding names, have purposefully used names other than their own on their résumés to apply for jobs.70 These job applicants might include a Latino Guillermo who becomes William or a black Tyree who simply becomes Ty. In fact, numerous actors and actresses of color have changed their names to white-sounding names in order to avoid prejudices in the film and television industries. For example, Martin Sheen, star of the hit television series The West Wing, changed his name from Ramon Estevez, later explaining his decision by proclaiming “I know what it means to have an Hispanic name.”71
Moreover, discrimination based on the perceived ethnicity or race of an applicant due to name is not limited to people of color. Just as a *1301 black Nyasha may be excluded on the basis of discrimination caused by racial stereotyping due to her ethnic-sounding name, a white applicant named Nyasha, who did not in some way identify herself as white on her résumé, could suffer similar discrimination simply because of her name, which may have incorrectly signaled to hiring decision-makers that she was black or even the “wrong kind” of White.72
One could argue, however, that employers who make decisions based upon the sound of a name alone are not acting solely on the basis of race, but instead may also be drawing inferences about a number of the applicant's traits. For instance, employers who make a decision based on an applicant's name could be making a decision based upon social class. This would certainly seem plausible given the results of another recent study that claims to measure the effect of having black racially-identifiable names on teacher expectations and test performance within elementary education.73 In this study, Professor David Figlio asserts that teachers and school administrators expect less from children with “names that are associated more with low socio-economic status, names that are disproportionately given to black children.”74 He then theorizes that this disparate treatment may partially explain the testing gap between Blacks and Whites because “names concentrated in the black community are related to diminished student test performance in mathematics and reading.”75 He further claimed that, even among names with a high blackness index, the names with the greatest correlation to lower socioeconomic status experienced the largest test gap, even among children who came from the same family.76
*1302 While the importance of class as a discriminatory tool should not be minimized, substituting class analysis for discussions of race is dangerous, especially where poor white workers are not generally subject to the assumptions related to racial stereotypes that affect poor Blacks.77 An argument that decision-makers within labor markets can decouple race and class status also neglects socially constructed meanings of race and how that construction can employ class as a tool to infer which “kinds” of Blacks are acceptable in the workplace. More importantly, as Bertrand and Mullainathan demonstrated in their study, within the labor market context, it was race (even in its strictly physical sense), and not class, that was predominantly at work in the decision of the employers in the study.78 Even when Bertrand and Mullainathan signaled factors such as class to employers with addresses in predominantly white and more educated neighborhoods, applicants with African American-sounding names yielded no greater returns.79 Although applicants who lived in more educated and higher income neighborhoods had a higher probability of receiving a callback, there was no evidence that African Americans benefited any more than Whites from living in such neighborhoods.80 Indeed, as Bertrand and Mullainathan indicated, “if ghettos and bad neighborhoods are particularly stigmatizing for African Americans, one might have expected African Americans to be helped more by having a ‘good’ address.”81 In sum, it was the names of the perceived African American applicants and the ways in which such names signaled negative social background and characteristics, such as laziness and incompetence, that resulted in the racial discrimination, and not any other external factors.82
*1303 For courts to allow discrimination that is based on names that correlate with blackness, but which does not directly involve an explicit race-based decision, misses the reality of living as a “raced” person in the United States.83 It also treats the use of proxies, more generally, as typically not cognizable within antidiscrimination law. This seems bizarre given that courts routinely traffic in the most prevalent proxy for race: color.84 At bottom, studies, such as the one conducted by Bertrand and Mullainathan, remind us that not all disfavored citizens and workers are created (un)equal. Society operates on the *1304 understanding that there are bad and good (or not quite as bad) Blacks85 or rather that there are bad Blacks and Blacks who have achieved the status of “honorary Whites.”86
Names then become difference-markers or tools to distinguish between the acceptable and unacceptable Blacks. The tool could be a proxy for race and socioeconomic status, social compatibility, or political agenda. Race, however, is always present in the consideration. What one's name tells the world about how one performs his or her race controls the ultimate decision.87 That decision has implications for both the culture of the work environment and the behavior of minority workers.
By distinguishing between name-based discrimination and race discrimination, courts send a signal to employers as to what values and forms of regulation are acceptable within the workplace. At some point, we must ask how the use of proxies as a basis for discrimination harms the workplace. In the résumé context, giving import to names as a proxy for identity invites dubious racial consideration into the work environment by remapping racial constructions onto items that might *1305 otherwise be substantially race-neutral.88 Additionally, Professor Tristin Green has recently surmised that business practices, such as appearance codes, result in a discriminatory work environment where minorities are punished for failing to “fit in.”89 She further theorizes that courts avoid recognizing the discrimination aspects of the cases by seeing them through the prism of “business prerogative” rather than antidiscrimination.90 Strangely, similar to the justification for appearance codes, businesses could claim that they avoid ethnic names for business reasons, regardless of an individual's race, because, for example, their customers or partners do not relate to Lakishas or Jamals.91 Our question then is: should employers be permitted to use this type of justification when such policies endorse the rejection of persons who are presumed tainted by stereotypical notions of what race means? We believe Title VII requires the answer to be no. Even where there are legitimate business reasons, using race in this way results in at least a mixed-motive discrimination claim.92 Until some proper business purpose is advanced, however, such discrimination violates Title VII because it results in disparate treatment of those perceived as racial minorities.93
*1306 Beyond the work environment, there are also consequences to individual personal choices and behaviors stemming from such practices. The concept that there are preferred behaviors and statuses even among generally disfavored groups reinforces the notion of race as a social construction. It also results in a group of individuals who cover by intentionally acting in a way that avoids identifiers of the unacceptable performance of blackness.94 According to some scholars, this type of behavior should be expected.

1.5 Saint Francis College v. Al-Khazraji 1.5 Saint Francis College v. Al-Khazraji

SAINT FRANCIS COLLEGE et al. v. AL-KHAZRAJI, aka ALLAN

No. 85-2169.

Argued February 25, 1987

Decided May 18, 1987

*605White, J., delivered the opinion for a unanimous Court. Brennan, J., filed a concurring opinion, post, p. 614.

Nick S. Fisfis argued the cause and filed a brief for petitioners.

Caroline Mitchell argued the cause for respondent. With her on the brief were Julius LeVonne Chambers and Eric Schnapper .*

*606Justice White

delivered the opinion of the Court.

Respondent, a citizen of the United States born in Iraq, was an associate professor at St. Francis College, one of the petitioners here. In January 1978, he applied for tenure; the Board of Trustees denied his request on February 23, 1978. He accepted a 1-year, nonrenewable contract and sought administrative reconsideration of the tenure decision, which was denied on February 6, 1979. He worked his last day at the college on May 26, 1979. In June 1979, he filed complaints with the Pennsylvania Human Relations Commission and the Equal Employment Opportunities Commission. The state agency dismissed his claim and the EEOC issued a right-to-sue letter on August 6, 1980.

On October 30, 1980, respondent filed a pro se complaint in the District Court alleging a violation of Title VII of the Civil Rights Act of 1964 and claiming discrimination based on national origin, religion, and/or race. Amended complaints were filed, adding claims under 42 U. S. C. §§1981, 1983, 1985(3), 1986, and state law. The District Court dismissed the §§ 1986 and 1985(3) and Title VII claims as untimely but held that the §§ 1981 and 1983 claims were not barred by the Pennsylvania 6-year statute of limitations. The court at that time also ruled that because the complaint alleged denial of tenure because respondent was of the Arabian race, an action under § 1981 could be maintained. Defendants’ motion for summary judgment came up before a different judge, who construed the pleadings as asserting only discrimination on the basis of national origin and religion, which § 1981 did not cover. Even if racial discrimination was deemed to have been alleged, the District Court ruled that § 1981 does not reach claims of discrimination based on Arabian ancestry.1

The Court of Appeals rejected petitioners’ claim that the § 1981 claim had not been timely filed. Under the Court of Appeals’ holding in Goodman v. Lukens Steel Co., 777 F. 2d *607113 (1985), that the Pennsylvania 2-year statute of limitations governed §1981 cases, respondent’s suit would have been barred. The Court of Appeals, however, relying on Chevron Oil Co. v. Huson, 404 U. S. 97 (1971), held that Goodman should not be retroactively applied and that this suit was timely under its pre-Goodman cases which had borrowed the State’s 6-year statute.

Reaching the merits, the Court of Appeals held that respondent had alleged discrimination based on race and that although under current racial classifications Arabs are Caucasians, respondent could maintain his § 1981 claim.2 Congress, when it passed what is now § 1981, had not limited its protections to those who today would be considered members of a race different from the race of the defendant. Rather, the legislative history of the section indicated that Congress intended to embrace “at the least, membership in a group that is ethnically and physiognomically distinctive.” 784 F. 2d 505, 517 (1986). Section 1981, “at a minimum,” reaches “discrimination directed against an individual because he or she is genetically part of an ethnically and physiognomically distinctive sub-grouping of homo sapiens.” Ibid. Because respondent had not had full discovery and the record was not sufficient to determine whether he had been subjected to the sort of prejudice § 1981 would redress, respondent was to be given the opportunity to prove his case.3

We granted certiorari, 479 U. S. 812 (1986), limited to the statute of limitations issue and the question whether a person of Arabian ancestry was protected from racial discrimination under § 1981, and now affirm the judgment of the Court of Appeals.

*6081 — (

We agree with the Court of Appeals that respondent’s claim was not time barred. Wilson v. Garcia, 471 U. S. 261 (1985), required that in selecting the applicable state statute of limitations in § 1983 cases, the lower federal courts should choose the state statute applicable to other personal injury-torts. Thereafter, the Third Circuit in Goodman held that Wilson applies to § 1981 cases as well and that the Pennsylvania 2-year statute should apply. The Court of Appeals in this case, however, held that when respondent filed his suit, which was prior to Wilson v. Garcia, it was clearly established in the Third Circuit that a § 1981 plaintiff had six years to bring an action and that Goodman should not be applied retroactively to bar respondent’s suit.

Insofar as what the prevailing law was in the Third Circuit, we have no reason to disagree with the Court of Appeals. Under controlling precedent in that Circuit, respondent had six years to file his suit, and it was filed well within that time. See 784 F. 2d, at 512-513. We also assume but do not decide that Wilson v. Garcia controls the selection of the applicable state statute of limitations in § 1981 cases. The Court of Appeals, however, correctly held that its decision in Goodman should not be retroactively applied to bar respondent’s action in this case. The usual rule is that federal cases should be decided in accordance with the law existing at the time of decision. Gulf Offshore Co. v. Mobil Oil Corp., 453 U. S. 473, 486, n. 16 (1981); Thorpe v. Durham Housing Authority, 393 U. S. 268, 281 (1969); United States v. Schooner Peggy, 1 Cranch 103, 110 (1801). But Chevron Oil Co. v. Huson, supra, counsels against retroactive application of statute of limitations decisions in certain circumstances. There, the Court held that its decision specifying the applicable state statute of limitations should be applied only prospectively because it overruled clearly established Circuit precedent on which the complaining party was entitled to rely, because retroactive application would be inconsistent with the pur*609pose of the underlying substantive statute, and because such application would be manifestly inequitable. The Court of Appeals found these same factors were present in this case and foreclosed retroactive application of its decision in Goodman. We perceive no good reason for not applying Chevron where Wilson has required a Court of Appeals to overrule its prior cases. Nor has petitioner persuaded us that there was any error in the application of Chevron in the circumstances existing in this case.

II

Section 1981 provides:

“All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exac-tions of every kind, and to no other.”

Although § 1981 does not itself use the word “race,” the Court has construed the section to forbid all “racial” discrimination in the making of private as well as public contracts. Runyon v. McCrary, 427 U. S. 160, 168, 174-175 (1976). Petitioner college, although a private institution, was therefore subject to this statutory command. There is no disagreement among the parties on these propositions. The issue is whether respondent has alleged racial discrimination within the meaning of § 1981.

Petitioners contend that respondent is a Caucasian and cannot allege the kind of discrimination § 1981 forbids. Con-cededly, McDonald v. Santa Fe Trail Transportation Co., 427 U. S. 273 (1976), held that white persons could maintain a § 1981 suit; but that suit involved alleged discrimination against a white person in favor of a black, and petitioner submits that the section does not encompass claims of discrimina*610tion by one Caucasian against another. We are quite sure that the Court of Appeals properly rejected this position.

Petitioner’s submission rests on the assumption that all those who might be deemed Caucasians today were thought to be of the same race when § 1981 became law in the 19th century; and it may be that a variety of ethnic groups, including Arabs, are now considered to be within the Caucasian race.4 The understanding of “race” in the 19th century, however, was different. Plainly, all those who might be deemed Caucasian today were not thought to be of the same race at the time § 1981 became law.

In the middle years of the 19th century, dictionaries commonly referred to race as a “continued series of descendants from a parent who is called the stock,” N. Webster, An American Dictionary of the English Language 666' (New *611York 1830) (emphasis in original), “[t]he lineage of a family,” 2 N. Webster, A Dictionary of the English Language 411 (New Haven 1841), or “descendants of a common ancestor,” J. Donald, Chambers’ Etymological Dictionary of the English Language 415 (London 1871). The 1887 edition of Webster’s expanded the definition somewhat: “The descendants of a common ancestor; a family, tribe, people or nation, believed or presumed to belong to the same stock.” N. Webster, Dictionary of the English Language 589 (W. Wheeler ed. 1887). It was not until the 20th century that dictionaries began referring to the Caucasian, Mongolian, and Negro races, 8 The Century Dictionary and Cyclopedia 4926 (1911), or to race as involving divisions of mankind based upon different physical characteristics. Webster’s Collegiate Dictionary 794 (3d ed. 1916). Even so, modern dictionaries still include among the definitions of race “a family, tribe, people, or nation belonging to the same stock.” Webster’s Third New International Dictionary 1870 (1971); Webster’s Ninth New Collegiate Dictionary 969 (1986).

Encyclopedias of the 19th century also described race in terms of ethnic groups, which is a narrower concept of race than petitioners urge. Encyclopedia Americana in 1858, for example, referred to various races such as Finns, vol. 5, p. 123, gypsies, 6 id., at 123, Basques, 1 id., at 602, and Hebrews, 6 id., at 209. The 1863 version of the New American Cyclopaedia divided the Arabs into a number of subsidiary races, vol. 1, p. 739; represented the Hebrews as of the Semitic race, 9 id., at 27, and identified numerous other groups as constituting races, including Swedes, 15 id., at 216, Norwegians, 12 id., at 410, Germans, 8 id., at 200, Greeks, 8 id., at 438, Finns, 7 id., at 513, Italians, 9 id., at 644-645 (referring to mixture of different races), Spanish, 14 id., at 804, Mongolians, 11 id., at 651, Russians, 14 id., at 226, and the like. The Ninth edition of the Encyclopedia Britannica also referred to Arabs, vol. 2, p. 245 (1878), Jews, 13 id., at 685 (1881), and other ethnic groups such as Germans, 10 id., at *612473 (1879), Hungarians, 12 id., at 365 (1880), and Greeks, 11 id., at 83 (1880), as separate races.

These dictionary and encyclopedic sources are somewhat diverse, but it is clear that they do not support the claim that for the purposes of § 1981, Arabs, Englishmen, Germans, and certain other ethnic groups are to be considered a single race. We would expect the legislative history of § 1981, which the Court held in Runyon v. McCrary had its source in the Civil Rights Act of 1866, 14 Stat. 27, as well as the Voting Rights Act of 1870, 16 Stat. 140, 144, to reflect this common understanding, which it surely does. The debates are replete with references to the Scandinavian races, Cong. Globe, 39th Cong., 1st Sess., 499 (1866) (remarks of Sen. Cowan), as well as the Chinese, id., at 523 (remarks of Sen. Davis), Latin, id., at 238 (remarks of Rep. Kasson during debate of home rule for the District of Columbia), Spanish, id., at 251 (remarks of Sen. Davis during debate of District of Columbia suffrage), and Anglo-Saxon races, id., at 542 (remarks of Rep. Dawson). Jews, ibid., Mexicans, see ibid, (remarks of Rep. Dawson), blacks, passim, and Mongolians, id., at 498 (remarks of Sen. Cowan), were similarly categorized. Gypsies were referred to as a race. Ibid, (remarks of Sen. Cowan). Likewise, the Germans:

“Who will say that Ohio can pass a law enacting that no man of the German race . . . shall ever own any property in Ohio, or shall ever make a contract in Ohio, or ever inherit property in Ohio, or ever come into Ohio to live, or even to work? If Ohio may pass such a law, and exclude a German citizen . . . because he is of the German nationality or race, then may every other State do so.” Id., at 1294 (remarks of Sen. Shellabarger).

There was a reference to the Caucasian race, but it appears to have been referring to people of European ancestry. Id., at 523 (remarks of Sen. Davis).

The history of the 1870 Act reflects similar understanding of what groups Congress intended to protect from intentional *613discrimination. It is clear, for example, that the civil rights sections of the 1870 Act provided protection for immigrant groups such as the Chinese. This view was expressed in the Senate. Cong. Globe, 41st Cong., 2d Sess., 1536, 3658, 3808 (1870). In the' House, Representative Bingham described § 16 of the Act, part of the authority for § 1981, as declaring “that the States shall not hereafter discriminate against the immigrant from China and in favor of the immigrant from Prussia, nor against the immigrant from France and in favor of the immigrant from Ireland.” Id., at 3871.

Based on the history of § 1981, we have little trouble in concluding that Congress intended to protect from discrimination identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics. Such discrimination is racial discrimination that Congress intended § 1981 to forbid, whether or not it would be classified as racial in terms of modern scientific theory.5 The Court of Appeals was thus quite right in holding that § 1981, “at a minimum,” reaches discrimination against an individual “because he or she is genetically part of an ethnically and physiognomically distinctive sub-grouping of homo sapiens.” It is clear from our holding, however, that a distinctive physiognomy is not essential to qualify for § 1981 protection. If respondent on remand can prove that he was subjected to intentional discrimination based on the fact that he was bora an Arab, rather than solely on the place or nation of his origin, or his religion, he will have made out a case under § 1981.

The judgment of the Court of Appeals is accordingly affirmed.

It is so ordered.

*614Justice Brennan,

concurring.

Pernicious distinctions among individuals based solely on their ancestry are antithetical to the doctrine of equality upon which this Nation is founded. Today the Court upholds Congress’ desire to rid the Nation of such arbitrary and invidious discrimination, and I concur in its opinion and judgment. I write separately only to point out that the line between discrimination based on “ancestry or ethnic characteristics,” ante, at 613, and discrimination based on “place or nation of . . . origin,” ibid., is not a bright one. It is true that one’s ancestry — the ethnic group from which an individual and his or her ancestors are descended — is not necessarily the same as one’s national origin — the country “where a person was born, or, more broadly, the country from which his or her ancestors came” Espinoza v. Farah Manufacturing Co., 414 U. S. 86, 88 (1973) (emphasis added). Often, however, the two are identical as a factual matter: one was born in the nation whose primary stock is one’s own ethnic group. Moreover, national origin claims have been treated as ancestry or ethnicity claims in some circumstances. For example, in the Title VII context, the terms overlap as a legal matter. See 29 CFR § 1606.1 (1986) (emphasis added) (national origin discrimination “includes], but [is] not limited to, the denial of equal employment opportunity because of an individual’s, or his or her ancestor’s, place of origin; or because an individual has the physical, cultural, or linguistic characteristics of a national origin group”); Espinoza, supra, at 89 (the deletion of the word ancestry from the final version of § 703 of Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e-2(e), “was not intended as a material change, . . . suggesting that the terms ‘national origin’ and ‘ancestry’ were considered synonymous”). I therefore read the Court’s opinion to state only that discrimination based on birthplace alone is insufficient to state a claim under § 1981.

1.6 Hazen Paper Co. v. Biggins 1.6 Hazen Paper Co. v. Biggins

HAZEN PAPER CO. et al. v. BIGGINS

No. 91-1600.

Argued January 13, 1993

Decided April 20, 1993

*605O’ConnoR, J., delivered the opinion for a unanimous Court. Kennedy, J., filed a concurring opinion, in which Rehnquist, C. J., and Thomas, J., joined, post, p. 617.

Robert B. Gordon argued the cause for petitioners. With him on the briefs were John M. Harrington, Jr., and John H. Mason.

Maurice M. Cahillane, Jr., argued the cause for respondent. With him on the briefs were John J. Egan, Edward J. McDonough, Jr., and Eileen Z. Sorrentino.

John R. Dunne argued the cause for the United States et al. as amici curiae urging affirmance. With him on the brief were Solicitor General Starr, Deputy Solicitor Gen *606 eral Roberts, Edward C. DuMont, Donald R. Livingston, and Gwendolyn Young Reams *

Justice O’Connor

delivered the opinion of the Court.

In this case we clarify the standards for liability and liquidated damages under the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U. S. C. §621 et seq.

I

Petitioner Hazen Paper Company manufactures coated, laminated, and printed paper and paperboard. The company is owned and operated by two cousins, petitioners Robert Hazen and Thomas N. Hazen. The Hazens hired respondent Walter F. Biggins as their technical director in 1977. They fired him in 1986, when he was 62 years old.

Respondent brought suit against petitioners in the United States District Court for the District of Massachusetts, alleging a violation of the ADEA. He claimed that age had been a determinative factor in petitioners’ decision to fire him. Petitioners contested this claim, asserting instead that respondent had been fired for doing business with competitors of Hazen Paper. The case was tried before a jury, which rendered a verdict for respondent on his ADEA claim and also found violations of the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 895, §510, 29 U. S. C. § 1140, and state law. On the ADEA count, the jury specifically found that petitioners “willfully” violated the statute. Under § 7(b) of the ADEA, 29 U. S. C. § 626(b), a “willful” violation gives rise to liquidated damages.

*607Petitioners moved for judgment notwithstanding the verdict. The District Court granted the motion with respect to a state-law claim and the finding of “willfulness” but otherwise denied it. An appeal ensued. 953 F. 2d 1405 (CA1 1992). The United States Court of Appeals for the First Circuit affirmed judgment for respondent on both the ADEA and ERISA counts, and reversed judgment notwithstanding the verdict for petitioners as to “willfulness.”

In affirming the judgments of liability, the Court of Appeals relied heavily on the evidence that petitioners had fired respondent in order to prevent his pension benefits from vesting. That evidence, as construed most favorably to respondent by the court, showed that the Hazen Paper pension plan had a 10-year vesting period and that respondent would have reached the 10-year mark had he worked “a few more weeks” after being fired. Id., at 1411. There was also testimony that petitioners had offered to retain respondent as a consultant to Hazen Paper, in which capacity he would not have been entitled to receive pension benefits. Id., at 1412. The Court of Appeals found this evidence of pension interference to be sufficient for ERISA liability, id., at 1416, and also gave it considerable emphasis in upholding ADEA liability. After summarizing all the testimony tending to show age discrimination, the court stated:

“Based on the foregoing evidence, the jury could reasonably have found that Thomas Hazen decided to fire [respondent] before his pension rights vested and used the confidentiality agreement [that petitioners had asked respondent to sign] as a means to that end. The jury could also have reasonably found that age was inextricably intertwined with the decision to fire [respondent]. If it were not for [respondent’s] age, sixty-two, his pension rights would not have been within a hairbreadth of vesting. [Respondent] was fifty-two years old when he was hired; his pension rights vested in ten years.” Id., at 1412.

*608As to the issue of “willfulness” under § 7(b) of the ADEA, the Court of Appeals adopted and applied the definition set out in Trans World Airlines, Inc. v. Thurston, 469 U. S. 111 (1985). In Thurston, we held that the airline’s facially discriminatory job-transfer policy was not a “willful” ADEA violation because the airline neither “knew [nor] showed reckless disregard for the matter of whether” the policy contravened the statute. Id., at 128 (internal quotation marks omitted). The Court of Appeals found sufficient evidence to satisfy the Thurston standard, and ordered that respondent be awarded liquidated damages equal to and in addition to the underlying damages of $419,454.88. 953 F. 2d, at 1415-1416.

We granted certiorari to decide two questions. 505 U. S. 1203 (1992). First, does an employer’s interference with the vesting of pension benefits violate the ADEA? Second, does the Thurston standard for liquidated damages apply to the case where the predicate ADEA violation is not a formal, facially discriminatory policy, as in Thurston, but rather an informal decision by the employer that was motivated by the employee’s age?

II

A

The Courts of Appeals repeatedly have faced the question whether an employer violates the ADEA by acting on the basis of a factor, such as an employee’s pension status or seniority, that is empirically correlated with age. Compare White v. Westinghouse Electric Co., 862 F. 2d 56, 62 (CA3 1988) (firing of older employee to prevent vesting of pension benefits violates ADEA); Metz v. Transit Mix, Inc., 828 F. 2d 1202 (CA7 1987) (firing of older employee to save salary costs resulting from seniority violates ADEA), with Williams v. General Motors Corp., 656 F. 2d 120, 130, n. 17 (CA5 1981) (“[Seniority and age discrimination are unrelated.. . . We state without equivocation that the seniority a given *609plaintiff has accumulated entitles him to no better or worse treatment in an age discrimination suit”), cert. denied, 455 U. S. 943 (1982); EEOC v. Clay Printing Co., 955 F. 2d 936, 942 (CA4 1992) (emphasizing distinction between employee’s age and years of service). We now clarify that there is no disparate treatment under the ADEA when the factor motivating the employer is some feature other than the employee’s age.

We long have distinguished between “disparate treatment” and “disparate impact” theories of employment discrimination.

" 'Disparate treatment’ ... is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion ¡or other protected characteristics.] Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment....
“[C]laims that stress ‘disparate impact’ tby contrast] involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. Proof of discriminatory motive ... is not required under a disparate-impact theory.” Teamsters v. United States, 431 U. S. 324, 335-336, n. 16 (1977) (citation omitted) (construing Title VII of Civil Rights Act of 1964).

The disparate treatment theory is of course available under the ADEA, as the language of that statute makes clear. “It shall be unlawful for an employer ... to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U. S. C. § 623(a)(1) (emphasis added). See Thurston, supra, at 120-126 (affirming ADEA *610liability under disparate treatment theory). By contrast, we have never decided whether a disparate impact theory of liability is available under the ADEA, see Markham v. Geller, 451 U. S. 946 (1981) (Rehnquist, J., dissenting from denial of certiorari), and we need not do so here. Respondent claims only that he received disparate treatment.

In a disparate treatment case, liability depends on whether the protected trait (under the ADEA, age) actually motivated the employer’s decision. See, e. g., United States Postal Service Bd. of Governors v. Aikens, 460 U. S. 711 (1983); Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248, 252-256 (1981); Furnco Constr. Corp. v. Waters, 438 U. S. 567, 676-678 (1978). The employer may have relied upon a formal, facially discriminatory policy requiring adverse treatment of employees with that trait. See, e. g., Thurston, supra; Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702, 704-718 (1978). Or the employer may have been motivated by the protected trait on an ad hoc, informal basis. See, e. g., Anderson v. Bessemer City, 470 U. S. 564 (1985); Teamsters, supra, at 334-343. Whatever the employer’s decisionmaking process, a disparate treatment claim cannot succeed unless the employee’s protected trait actually played a role in that process and had a determinative influence on the outcome.

Disparate treatment, thus defined, captures the essence of what Congress sought to prohibit in the ADEA. It is the very essence of age discrimination for an older employee to be fired because the employer believes that productivity and competence decline with old age. As we explained in EEOC v. Wyoming, 460 U. S. 226 (1983), Congress' promulgation of the ADEA was prompted by its concern that older workers were being deprived of employment on the basis of inaccurate and stigmatizing stereotypes.

“Although age discrimination rarely was based on the sort of animus motivating some other forms of discrimination, it was based In large part on stereotypes unsup*611ported by objective fact .... Moreover, the available empirical evidence demonstrated that arbitrary age lines were in fact generally unfounded and that, as an overall matter, the performance of older workers was at least as good as that of younger workers.” Id., at 231.

Thus the ADEA commands that “employers are to evaluate [older] employees ... on their merits and not their age.” Western Air Lines, Inc. v. Criswell, 472 U. S. 400, 422 (1985). The employer cannot rely on age as a proxy for an employee’s remaining characteristics, such as productivity, but must instead focus on those factors directly.

When the employer’s decision is wholly motivated by factors other than age, the problem of inaccurate and stigmatizing stereotypes disappears. This is true even if the motivating factor is correlated with age, as pension status typically is. Pension plans typically provide that an employee’s accrued benefits will become nonforfeitable, or “vested,” once the employee completes a certain number of years of service with the employer. See 1 J. Mamorsky, Employee Benefits Law § 5.03 (1992). On average, an older employee has had more years in the work force than a younger employee, and thus may well have accumulated more years of service with a particular employer. Yet an employee’s age is analytically distinct from his years of service. An employee who is younger than 40, and therefore outside the class of older workers as defined by the ADEA, see 29 U. S. C. § 631(a), may have worked for a particular employer his entire career, while an older worker may have been newly hired. Because age and years of service are analytically distinct, an employer can take account of one while ignoring the other, and thus it is incorrect to say that a decision based on years of service is necessarily “age based.”

The instant case is illustrative. Under the Hazen Paper pension plan, as construed by the Court of Appeals, an employee’s pension benefits vest after the employee completes 10 years of service with the company. Perhaps it is true *612that older employees of Hazen Paper are more likely to be “close to vesting” than younger employees. Yet a decision by the company to fire an older employee solely because he has nine-plus years of service and therefore is “close to vesting” would not constitute discriminatory treatment on the basis of age. The prohibited stereotype (“Older employees are likely to be —”) would not have figured in this decision, and the attendant stigma would not ensue. The decision would not be the result of an inaccurate and denigrating generalization about age, but would rather represent an accurate judgment about the employee — that he indeed is “close to vesting.”

We do not mean to suggest that an employer lawfully could fire an employee in order to prevent his pension benefits from vesting. Such conduct is actionable under § 510 of ERISA, as the Court of Appeals rightly found in affirming judgment for respondent under that statute. See Ingersoll-Rand Co. v. McClendon, 498 U. S. 133, 142-143 (1990). But it would not, without more, violate the ADEA. That law requires the employer to ignore an employee’s age (absent a statutory exemption or defense); it does not specify further characteristics that an employer must also ignore. Although some language in our prior decisions might be read to mean that an employer violates the ADEA whenever its reason for firing an employee is improper in any respect, see McDonnell Douglas Corp. v. Green, 411 U. S. 792, 802 (1973) (creating proof framework applicable to ADEA) (employer must have “legitimate, nondiscriminatory reason” for action against employee), this reading is obviously incorrect. For example, it cannot be true that an employer who fires an older black worker because the worker is black thereby violates the ADEA. The employee’s race is an improper reason, but it is improper under Title VII, not the ADEA.

We do not preclude the possibility that an employer who targets employees with a particular pension status on the assumption that these employees are likely to be older *613thereby engages in age discrimination. Pension status may be a proxy for age, not in the sense that the ADEA makes the two factors equivalent, cf. Metz, 828 F. 2d, at 1208 (using “proxy” to mean statutory equivalence), but in the sense that the employer may suppose a correlation between the two factors and act accordingly. Nor do we rule out the possibility of dual liability under ERISA and the ADEA where the decision to fire the employee was motivated both by the employee’s age and by his pension status. Finally, we do not consider the special case where an employee is about to vest in pension benefits as a result of his age, rather than years of service, see 1 Mamorsky, supra, at § 5.02[2], and the employer fires the employee in order to prevent vesting. That ease is not presented here. Our holding is simply that an employer does not violate the ADEA just by interfering with an older employee’s pension benefits that would have vested by virtue of the employee’s years of service.

Besides the evidence of pension interference, the Court of Appeals cited some additional evidentiary support for ADEA liability. Although there was no direct evidence of petitioners’ motivation, except for two isolated comments by the Hazens, the Court of Appeals did note the following indirect evidence: Respondent was asked to sign a confidentiality agreement, even though no other employee had been required to do so, and his replacement was a younger man who was given a less onerous agreement. 953 F. 2d, at 1411. In the ordinary ADEA case, indirect evidence of this kind may well suffice to support liability if the plaintiff also shows that the employer’s explanation for its decision — here, that respondent had been disloyal to Hazen Paper by doing business with its competitors — is “ ‘unworthy of credence.’ ” Athens, 460 U. S., at 716 (quoting Burdine, 450 U. S., at 256). But inferring age motivation from the implausibility of the employer’s explanation may be problematic in cases where other unsavory motives, such as pension interference, were present. This issue is now before us in the Title VII con*614text, see Hicks v. St. Mary’s Honor Center, 970 F. 2d 487 (CA8 1992), cert. granted, 506 U. S. 1042 (1993), and we will not address it prematurely. We therefore remand the case for the Court of Appeals to reconsider whether the jury had sufficient evidence to find an ADEA violation.

B

Because we remand for further proceedings, we also address the second question upon which certiorari was granted: the meaning of “willful” in § 7(b) of the ADEA, which provides for liquidated damages in the case of a “willful” violation.

In Thurston, we thoroughly analyzed §7(b) and concluded that “a violation of the Act [would be] ‘willful’ if the employer knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA.” 469 U. S., at 126 (internal quotation marks and ellipsis omitted). We sifted through the legislative history of § 7(b), which had derived from § 16(a) of the Fair Labor Standards Act of 1938 (FLSA), 52 Stat. 1069, as amended, 29 U. S. C. § 216(a), and determined that the accepted judicial interpretation of § 16(a) at the time of the passage of the ADEA supported the “knowledge or reckless disregard” standard. See 469 U. S., at 126. We found that this standard was consistent with the meaning of “willful” in other criminal and civil statutes. See id., at 126-127. Finally, we observed that Congress aimed to create a “two-tiered liability scheme,” under which some, but not all, ADEA violations would give rise to liquidated damages. We therefore rejected a broader definition of “willful” providing for liquidated damages whenever the employer knew that the ADEA was “in the picture.” See id., at 127-128.

In McLaughlin v. Richland Shoe Co., 486 U. S. 128 (1988), an FLSA case, we reaffirmed the Thurston standard. The question in Richland Shoe was whether the limitations pro*615vision of the FLSA, creating a 3-year period for “willful” violations, should be interpreted consistently with Thurston. We answered that question in the affirmative.

“The word ‘willful’ is widely used in the law, and, although it has not by any means been given a perfectly consistent interpretation, it is generally understood to refer to conduct that is not merely negligent. The standard of willfulness that was adopted in Thurston— that the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute — is surely a fair reading of the plain language of the Act.” 486 U. S., at 133.

Once again we rejected the “in the picture standard” because it would “virtually obliterate] any distinction between willful and nonwillful violations.” Id., at 132-133.

Surprisingly, the Courts of Appeals continue to be confused about the meaning of the term “willful” in § 7(b) of the ADEA. A number of Circuits have declined to apply Thur-ston to what might be called an informal disparate treatment case — where age has entered into the employment decision on an ad hoc, informal basis rather than through a formal policy. At least one Circuit refuses to impose liquidated damages in such a case unless the employer’s conduct was “outrageous.” See, e. g., Lockhart v. Westinghouse Credit Corp., 879 F. 2d 43, 57-58 (CA3 1989). Another requires that the underlying evidence of liability be direct rather than circumstantial. See, e. g., Neufeld v. Searle Laboratories, 884 F. 2d 335, 340 (CA8 1989). Still others have insisted that age be the “predominant,” rather than simply a determinative, factor. See, e. g., Spulak v. K Mart Corp., 894 F. 2d 1150, 1159 (CA10 1990); Schrand v. Federal Pacific Elec. Co., 851 F. 2d 152, 158 (CA6 1988). The chief concern of these Circuits has been that the application of Thurston would defeat the two-tiered system of liability intended by Congress, because every employer that engages in informal age *616discrimination knows or recklessly disregards the illegality of its conduct.

We believe that this concern is misplaced. The ADEA does not provide for liquidated damages “where consistent with the principle of a two-tiered liability scheme.” It provides for liquidated damages where the violation was “willful.” That definition must be applied here unless we overrule Thurston, or unless there is some inherent difference between this case and Thurston to cause a shift in the meaning of the word “willful.”

As for the first possibility, petitioners have not persuaded us that Thurston was wrongly decided, let alone that we should depart from the rule of stare decisis. The two-tiered liability principle was simply one interpretive tool among several that we used in Thurston to decide what Congress meant by the word “willful,” and in any event we continue to believe that the “knowledge or reckless disregard” standard will create two tiers of liability across the range of ADEA cases. It is not true that an employer who knowingly relies on age in reaching its decision invariably commits a knowing or reckless violation of the ADEA. The ADEA is not an unqualified prohibition on the use of age in employment decisions, but affords the employer a “bona fide occupational qualification” defense, see 29 U. S. C. § 623(f)(1), and exempts certain subject matters and persons, see, e. g., § 623(f)(2) (exemption for bona fide seniority systems and employee benefit plans); § 631(c) (exemption for bona fide executives and high policymakers). If an employer incorrectly but in good faith and nonrecklessly believes that the statute permits a particular age-based decision, then liquidated damages should not be imposed. See Richland Shoe, supra, at 135, n. 13. Indeed, in Thurston itself we upheld liability but reversed an award of liquidated damages because the employer “acted [nonrecklessly] and in good faith in attempting to determine whether [its] plan would violate the ADEA.” 469 U. S., at 129.

*617Nor do we see how the instant case can be distinguished from Thurston, assuming that petitioners did indeed fire respondent because of his age. The only distinction between Thurston and the case before us is the existence of formal discrimination. Age entered into the employment decision there through a formal and publicized policy, and not as an undisclosed factor motivating the employer on an ad hoc basis, which is what respondent alleges occurred here. But surely an employer’s reluctance to acknowledge its reliance on the forbidden factor should not cut against imposing a penalty. It would be a wholly circular and self-defeating interpretation of the ADEA to hold that, in cases where an employer more likely knows its conduct to be illegal, knowledge alone does not suffice for liquidated damages. We therefore reaffirm that the Thurston definition of “willful”— that the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute — applies to all disparate treatment cases under the ADEA. Once a “willful” violation has been shown, the employee need not additionally demonstrate that the employer’s conduct was outrageous, or provide direct evidence of the employer’s motivation, or prove that age was the predominant, rather than a determinative, factor in the employment decision.

The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.

So ordered.

. Justice Kennedy,

with whom The Chief Justice and Justice Thomas join, concurring.

I agree with the Court that the Court of Appeals placed improper reliance on respondent’s evidence of pension interference and that the standard for determining willfulness announced in Trans World Airlines, Inc. v. Thurston, 469 U. S. 111 (1985), applies to individual acts of age discrimination as *618well as age discrimination manifested in formal, company-wide policy. I write to underscore that the only claim based upon the Age Discrimination in Employment Act (ADEA), 29 U. S. C. § 621 et seq., asserted by respondent in this litigation is that petitioners discriminated against him because of his age. He has advanced no claim that petitioners’ use of an employment practice that has a disproportionate effect on older workers violates the ADEA. See App. 29-30 (amended complaint); 5 Record 71-76 (jury instructions). As a result, nothing in the Court’s opinion should be read as incorporating in the ADEA context the so-called “disparate impact” theory of Title VII of the Civil Rights Act of 1964, 42 U. S. C. §§2000e to 2000e-17. As the Court acknowledges, ante, at 610, we have not yet addressed the question whether such a claim is cognizable under the ADEA, and there are substantial arguments that it is improper to carry over disparate impact analysis from Title VII to the ADEA. See Markham v. Geller, 451 U. S. 945 (1981) (Rehnquist, J., dissenting from denial of certiorari); Metz v. Transit Mix, Inc., 828 F. 2d 1202, 1216-1220 (CA7 1987) (Easterbrook, J., dissenting); Note, Age Discrimination and the Disparate Impact Doctrine, 34 Stan. L. Rev. 837 (1982). It is on the understanding that the Court does not reach this issue that I join in its opinion.

1.7 McDonnell Douglas Corp. v. Green 1.7 McDonnell Douglas Corp. v. Green

McDONNELL DOUGLAS CORP. v. GREEN

No. 72-490.

Argued March 28, 1973

Decided May 14, 1973

*793Powell, J., delivered the opinion for a unanimous Court.

Veryl L. Riddle argued the cause for petitioner. With him on the briefs were R. H. McRoberts and Thomas C. Walsh.

Louis Gilden argued the cause for respondent. With him on the brief were Jack Greenberg, James M. Nabrit III, William L. Robinson, and Albert Rosenthal.*

Mr. Justice Powell

delivered the opinion of the Court.

The case before us raises significant questions as to the proper order and nature of proof in actions under Title *794VII of the Civil Rights Act of 1964, 78 Stat. 253, 42 U. S. C. § 2000e et seq.

Petitioner, McDonnell Douglas Corp., is an aerospace and aircraft manufacturer headquartered in St. Louis, Missouri, where it employs over 30,000 people. Respondent, a black citizen of St. Louis, worked for petitioner as a mechanic and laboratory technician from 1956 until August 28, 19641 when he was laid off in the course of a general reduction in petitioner’s work force.

Respondent, a long-time activist in the civil rights movement, protested vigorously that his discharge and the general hiring practices of petitioner were racially motivated.2 As part of this protest, respondent and other members of the Congress on Racial Equality illegally stalled their cars on the main roads leading to petitioner’s plant for the purpose of blocking access to it at the time of the morning shift change. The District Judge described the plan for, and respondent’s participation in, the “stall-in” as follows:

“[F]ive teams, each consisting of four cars would 'tie up’ five main access roads into McDonnell at the time of the morning rush hour. The drivers of the cars were instructed to line up next to each other completely blocking the intersections or roads. The drivers were also instructed to stop their cars, turn off the engines, pull the emergency brake, raise all windows, lock the doors, and remain in their cars until the police arrived. The plan was to have the cars remain in position for one hour.
*795“Acting under the 'stall in’ plan, plaintiff [respondent in the present action] drove his car onto Brown Road, a McDonnell access road, at approximately 7:00 a. m., at the start of the morning rush hour. Plaintiff was aware of the traffic problems that would result. He stopped his car with the intent to block traffic. The police arrived shortly and requested plaintiff to move his car. He refused to move his car voluntarily. Plaintiff’s car was towed away by the police, and he was arrested for obstructing traffic. Plaintiff pleaded guilty to the charge of obstructing traffic and was fined.” 318 F. Supp. 846, 849.

On July 2, 1965, a “lock-in” took place wherein a chain and padlock were placed on the front door of a building to prevent the occupants, certain of petitioner’s employees, from leaving. Though respondent apparently knew beforehand of the “lock-in,” the full extent of his involvement remains uncertain.3

*796Some three weeks following the “lock-in,” on July 25, 1965, petitioner publicly advertised for qualified mechanics, respondent’s trade, and respondent promptly applied for re-employment. Petitioner turned down respondent, basing its rejection on respondent’s participation in the “stall-in” and “lock-in.” Shortly thereafter, respondent filed a formal complaint with the Equal Employment Opportunity Commission, claiming that petitioner had refused to rehire him because of his race and persistent involvement in the civil rights movement, in violation of §§ 703 (a)(1) and 704 (a) of the Civil Rights Act of 1964, 42 U. S. C. §§ 2000e-2 (a)(1) and 2000e-3 (a).4 The former section generally prohibits racial discrimination in any employment decision while the latter forbids discrimination against applicants or employees for attempting to protest or correct allegedly discriminatory conditions of employment.

*797The Commission made no finding on respondent’s allegation of racial bias under §703 (a)(1), but it did find reasonable cause to believe petitioner had violated § 704 (a) by refusing to rehire respondent because of his civil rights activity. After the Commission unsuccessfully attempted to conciliate the dispute, it advised respondent in March 1968, of his right to institute a civil action in federal court within 30 days.

On April 15, 1968, respondent brought the present action, claiming initially a violation of § 704 (a) and, in an amended complaint, a violation of § 703 (a)(1) as well.5 The District Court dismissed the latter claim of racial discrimination in petitioner’s hiring procedures on the ground that the Commission had failed to make a determination of reasonable cause to believe that a violation of that section had been committed. The District Court also found that petitioner’s refusal to rehire respondent was based solely on his participation in the illegal demonstrations and not on his legitimate civil rights activities. The court concluded that nothing in Title VII or § 704 protected “such activity as employed by the plaintiff in the ‘stall in’ and ‘lock in’ demonstrations.” 318 F. Supp., at 850.

On appeal, the Eighth Circuit affirmed that unlawful protests were not protected activities under § 704 (a),6 but reversed the dismissal of respondent’s § 703 (a)(1) claim relating to racially discriminatory hiring practices, holding that a prior Commission determination of reasonable cause was not a jurisdictional prerequisite to raising a claim under that section in federal court. The court *798ordered the case remanded for trial of respondent’s claim under § 703 (a)(1).

In remanding, the Court of Appeals attempted to set forth standards to govern the consideration of respondent’s claim. The majority noted that respondent had established a prima facie case of racial discrimination; that petitioner’s refusal to rehire respondent rested on “subjective” criteria which carried little weight in rebutting charges of discrimination; that, though respondent’s participation in the unlawful demonstrations might indicate a lack of a responsible attitude toward performing work for that employer, respondent should be given the opportunity to demonstrate that petitioner’s reasons for refusing to rehire him were mere pretext.7 In order to clarify the standards governing the disposition of an action challenging employment discrimination, we granted certiorari, 409 U. S. 1036 (1972).

I

We agree with the Court of Appeals that absence of a Commission finding of reasonable cause cannot bar suit under an appropriate section of Title VII and that the District Judge erred in dismissing respondent’s claim of racial discrimination under §703 (a)(1). Respondent satisfied the jurisdictional prerequisites to a federal action (i) by filing timely charges of employment discrimination with the Commission and (ii) by receiving and acting upon the Commission’s statutory notice of the right to sue, 42 U. S. C. §§ 2000e-5 (a) and 2000e-5 (e). The Act does not restrict a complainant’s right to sue to those charges as to which the Commission has made findings of reasonable cause, and we will not engraft on the statute a requirement which may inhibit the review of *799claims of employment discrimination in the federal courts. The Commission itself does not consider the absence of a “reasonable cause” determination as.providing employer immunity from similar charges in a federal court, 29 CFR § 1601.30, and the courts of appeal have held that, in view of the large volume of complaints before the Commission and the nonadversary character of many of its proceedings, “court actions under Title VII are de novo proceedings and ... a Commission 'no reasonable cause’ finding does not bar a lawsuit in the case.” Robinson v. Lorillard Corp., 444 F. 2d 791, 800 (CA4 1971); Beverly v. Lone Star Lead Construction Corp., 437 F. 2d 1136 (CA5 1971); Flowers v. Local 6, Laborers International Union of North America, 431 F. 2d 205 (CA7 1970); Fekete v. U. S. Steel Corp., 424 F. 2d 331 (CA3 1970).

Petitioner argues, as it did below, that respondent sustained no prejudice from the trial court’s erroneous ruling because in fact the issue of racial discrimination in the refusal to re-employ “was tried thoroughly” in a trial lasting four days with “at least 80% ” of the questions relating to the issue of “race.” 8 Petitioner, therefore, requests that the judgment below be vacated and the cause remanded with instructions that the judgment of the District Court be affirmed.9 We cannot agree that the dismissal of- respondent’s § 703 (a)(1) claim was harmless error. It is not clear that the District Court’s findings as to respondent’s § 704 (a) contentions involved the identical issues raised by his claim under § 703 (a) (1). The former section relates solely to discrimination against an applicant or employee oh account of his participation in legitimate civil rights activities or protests, while the latter section deals with the broader and cen*800trally important question under the Act of whether, for any reason, a racially discriminatory employment decision has been made. Moreover, respondent should have been accorded the right to prepare his case and plan the strategy of trial with the knowledge that the § 703 (a)(1) cause of action was properly before the District Court.10 Accordingly, we remand the case for trial of respondent’s claim of racial discrimination consistent with the views set forth below.

II

The critical issue before us concerns the order and allocation of proof in a private, non-class action challenging employment discrimination. The language of Title VII makes plain the purpose of Congress to assure equality of employment opportunities and to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens. Griggs v. Duke Power Co., 401 U. S. 424, 429 (1971); Castro v. Beecher, 459 F. 2d 725 (CA1 1972); Chance v. Board of Examiners, 458 F. 2d 1167 (CA2 1972); Quarles v. Philip Morris, Inc., 279 F. Supp. 505 (ED Va. 1968). As noted in Griggs, supra:

“Congress did not intend by Title VII, however, to guarantee a job to every person regardless of qualifications. In short, the Act does not command that any person be hired simply because he was formerly the subject of discrimination, or because he is a member of a minority group. Discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed.
*801What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.” Id., at 430-431.

There are societal as well as personal interests on both sides of this equation. The broad, overriding interest, shared by employer, employee, and consumer, is efficient and trustworthy workmanship assured through fair and racially neutral employment and personnel decisions. In the implementation of such decisions, it is abundantly clear that Title VII tolerates no racial discrimination, subtle or otherwise.

In this case respondent, the complainant below, charges that he was denied employment “because of his involvement in civil rights activities” and “because of his race and color.” 11 Petitioner denied discrimination of any kind, asserting that its failure to re-employ respondent was based upon and justified by his participation in the unlawful conduct against it. Thus, the issue at the trial on remand is framed by those opposing factual contentions. The two opinions of the Court of Appeals and the several opinions of the three judges of that court attempted, with a notable lack of harmony, to state the applicable rules as to burden of proof and how this shifts upon the making of a prima facie case.12 We now address this problem.

*802The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.13 In the instant case, we agree with the Court of Appeals that respondent proved a prima facie case. 463 F. 2d 337, 353. Petitioner sought mechanics, respondent’s trade, and continued to do so after respondent’s rejection. Petitioner, moreover, does not dispute respondent’s qualifications14 and acknowledges that his past work performance in petitioner’s employ was “satisfactory.”15

The burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection. We need not attempt in the instant case to detail every matter which fairly could be *803recognized as a reasonable basis for a refusal to hire. Here petitioner has assigned respondent’s participation in unlawful conduct against it as the cause for his rejection. We think that this suffices to discharge petitioner’s burden of proof at this stage and to meet respondent’s prima facie case of discrimination.

_The Court of Appeals., intimated, ..however,. that petitioner’s stated reason for refusing to rehire respondent was a~‘fsubjective’’ rather than objective criterjpmwhjch “earn [ ies] little weight jn rebutting charges of. discrimination” 463 F. 2d, at 352, This was among the statements which caused the dissenting judge to read the opinion as taking “the position that such unlawful acts as Green committed against McDonnell would not legally entitle McDonnell to refuse to hire him, even though no racial motivation was involved . . . .” Id., at 355. Regardless of whether this was the intended import of the opinion, we think the court below seriously underestimated the rebuttal weight to which petitioner’s reasons were entitled. Respondent admittedly had taken part in a carefully planned “stall-in,” designed to tie up access to and egress from petitioner’s plant at a peak traffic hour.16 Nothing in Title VII compels an employer to absolve and rehire one who has engaged in such deliberate, unlawful activity against it.17 In upholding, under the National Labor Relations Act, the discharge of employees who had seized and forcibly retained *804an employer’s factory buildings in an illegal sit-down strike, the Court noted pertinently:

“We are unable to conclude that Congress intended to compel employers to retain persons in their employ regardless of their unlawful conduct, — to invest those who go on strike with an immunity from discharge for acts of trespass or violence against the employer’s property .... Apart from the question of the constitutional validity of an enactment of that sort, it is enough to say that such a legislative intention should be found in some definite and unmistakable expression.” NLRB v. Fansteel Corp., 306 U. S. 240, 255 (1939).

Petitioner’s reason for rejection thus suffices to meet the prima facie case, but the inquiry must not end here. While Title YII does not, without more, compel rehiring of respondent, neither does, it .permit petitioner to use respondent’s conduct asa pretext fot the sort of discrimination prohibited by § 703~(a) (1). On remand, respondent must, as the Court of Appeals recognized, be afforded a fair opportunity to show that petitioner’s stated reason for respondent’s rejection was in fact pretext. Especially relevant to such a showing would be evidence that white employees involved in acts against petitioner of comparable seriousness to the “stall-in” were nevertheless retained or rehired. Petitioner may justifiably refuse to rehire one who was engaged in unlawful, disruptive acts against it, but only if this criterion is applied alike to members of all races.

Other evidence that may be relevant to any showing of pretext includes facts as to the petitioner’s treatment of respondent during his prior term of employment; petitioner’s reaction, if any, to respondent’s legitimate civil rights activities; and petitioner’s general policy and *805practice with respect to minority employment.18 On the latter point, statistics as to petitioner’s employment policy and practice may be helpful to a determination of whether petitioner’s refusal to rehire respondent in this case conformed to a general pattern of discrimination against blacks. Jones v. Lee Way Motor Freight, Inc., 431 F. 2d 245 (CA10 1970); Blumrosen, Strangers in Paradise: Griggs v. Duke Power Co., and the Concept of Employment Discrimination, 71 Mich. L. Rev. 59, 91-94 (1972).19 In short, on the retrial respondent must be given a full and fair opportunity to demonstrate by competent evidence that the presumptively valid reasons for his rejection were in fact a coverup for a racially discriminatory decision.

The court below appeared to rely upon Griggs v. Duke Power Co., supra, in which the Court stated: “If an employment practice which operates to exclude Negroes can*806not be shown to be related to job performance, the practice is prohibited.” 401 U. S., at 431.20 But Griggs differs from the instant case in important respects. It dealt with standardized testing devices which, however neutral on their face, operated to exclude many blacks who were capable of performing effectively in the desired positions. Griggs was rightly concerned that childhood deficiencies in the education and background of minority citizens, resulting from forces beyond their control, not be allowed to work a cumulative and invidious burden on such citizens for the remainder of their lives. Id., at 430. Respondent, however, appears in different clothing. He had engaged in a seriously disruptive act against the very one from whom he now seeks employment. And petitioner does not seek his exclusion on the basis of a testing device which overstates what is necessary for competent performance, or through some sweeping disqualification of all those with any past record of unlawful behavior, however remote, insubstantial, or unrelated to applicant’s personal qualifications as an employee. Petitioner assertedly rejected respondent for unlawful conduct against it and, in the absence of proof of pretext or discriminatory application of such a reason, this cannot be thought the kind of “artificial, arbitrary, and unnecessary barriers to employment” which the Court found to be the intention of Congress to remove. Id., at 431.21

*807III

In sum, respondent should have been allowed to pursue his claim under §703 (a)(1). If the evidence on retrial is substantially in accord with that before us in this case, we think that respondent carried his burden of establishing a prima facie case of racial discrimination and that petitioner successfully rebutted that case. But this does not end the matter. On retrial, respondent must be afforded a fair opportunity to demonstrate that petitioner’s assigned reason for refusing to re-employ was a pretext or discriminatory in its application. If the District Judge so finds, he must order a prompt and appropriate remedy. In the absence of such a finding, petitioner’s refusal to rehire must stand.

The judgment is vacated and the cause is hereby remanded to the District Court for further proceedings consistent with this opinion.

So ordered.

1.8 McDonald v. Santa Fe Trail Transportation Co. 1.8 McDonald v. Santa Fe Trail Transportation Co.

McDONALD et al. v. SANTA FE TRAIL TRANSPORTATION CO. et al.

No. 75-260.

Argued April 20, 1976

Decided June 25, 1976

*274MARSHALL, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Stewart, Blackmun, Powell, and Stevens, JJ., joined, and in Parts I and II of which White and Rehnquist, JJ., joined. White and Rehnquist, JJ., filed a separate statement, post, p. 296.

Henry M. Rosenblum argued the cause and filed a brief for petitioners.

C. George Niebank, Jr., argued the cause for respondent Santa Fe Trail Transportation Co. With him on the brief was Benjamin R. Rowel. Chris Dixie argued the cause and filed a brief for respondent Local No. 988 of *275the Teamsters Freight, Tank Line & Automobile Industry Employees.

Assistant Attorney General Pottinger argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Bork and Walter W. Barnett.*

Mr. Justice Marshall

delivered the opinion of the Court.

Petitioners, L. N. McDonald and Raymond L. Laird, brought this action in the United States District Court for the Southern District of Texas seeking relief against Santa Fe Trail Transportation Co. (Santa Fe) and International Brotherhood of Teamsters Local 988 (Local 988), which represented Santa Fe’s Houston employees, for alleged violations of the Civil Rights Act of 1866, 42 U. S. C. § 1981, and of Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e et seq., in connection with their discharge from Santa Fe’s employment. The District Court dismissed the complaint on the pleadings. The Court of Appeals for the Fifth Circuit affirmed. In determining whether the decisions of these courts were correct, we must decide, first, whether a complaint alleging that white employees charged with misappropriating property from their employer were dismissed from employment, while a black employee similarly charged was *276not dismissed, states a claim under Title VII. Second, we must decide whether § 1981, which provides that “[a] 11 persons . . . shall have the same right ... to make and enforce contracts ... as is enjoyed by white citizens . . .” affords protection from racial discrimination in private employment to white persons as well as nonwhites.

I

Because the District Court dismissed this case on the pleadings, we take as true the material facts alleged in petitioners’ complaint. Hospital Bldg. Co. v. Trustees of Rex Hospital, 425 U. S. 738, 740 (1976). On September 26, 1970, petitioners, both white, and Charles Jackson, a Negro employee of Santa Fe, were jointly and severally charged with misappropriating 60 one-gallon cans of antifreeze which was part of a shipment Santa Fe was carrying for one of its customers. Six days later, petitioners were fired by Santa Fe, while Jackson was retained. A grievance was promptly filed with Local 988, pursuant to the collective-bargaining agreement between the two respondents, but grievance proceedings secured no relief. The following April, complaints were filed with the Equal Employment Opportunity Commission (EEOC) charging that Santa Fe had discriminated against both petitioners on the basis of their race in firing them, and that Local 988 had discriminated against McDonald on the basis of his race in failing properly to represent his interests in the grievance proceedings, all in violation of Title VII of the Civil Rights Act of 1964. Agency process proved equally unavailing for petitioners, however, and the EEOC notified them in July 1971 of their right under the Act to initiate a civil action in district court within 30 days. This suit followed, petitioners joining their § 1981 claim to their Title VII allegations.

*277Respondents moved to dismiss the complaint, and in June 1974 the District Court issued a final modified opinion and order dismissing petitioners’ claims under both Title VII and § 1981. Turning first to the § 1981 claim, the District Court determined that § 1981 is wholly inapplicable to racial discrimination against white persons, and dismissed the claim for want of jurisdiction. Turning then to petitioners’ claims under Title VII, the District Court concluded it had no jurisdiction over Laird’s Title VII claim against Local 988, because Laird had not filed any charge against Local 988 with the EEOC.1 Respondent Santa Fe additionally contended that petitioners’ EEOC charges against it, filed more than 90 days after their discharge, were untimely.2 Apparently relying upon Fifth Circuit authority for the proposition that the 90-day period for filing with the EEOC was tolled during the pendency of grievance pro*278ceedings, however,3 the District Court concluded that the question of timely filing with the EEOC could not be determined without a hearing on petitioners’ allegations that they had not been notified until April 3, 1971, of the termination of the grievance proceedings.4 But the District Court found it unnecessary to hold such a hearing, since it concluded, quite apart from any timeliness problem, that “the dismissal of white employees charged with misappropriating company property while not dismissing a similarly charged Negro employee does not raise a claim upon which Title VII relief may be granted.” App. 117.

The Court of Appeals affirmed the dismissal, per curiam, 513 F. 2d 90 (1975), noting in regard to the Title VII claim asserted: “There is no allegation that the plaintiffs were falsely charged. Disciplinary action for offenses not constituting crimes is not involved in this case.” Id., at 90-91. We granted certiorari. 423 U. S. 923 (1975). We reverse.

II

Title YII of the Civil Rights Act of 1964 prohibits the discharge of “any individual” because of “such individual’s race,” §703 (a)(1), 42 U. S. C. § 2000e-2 (a)(1).5 Its terms are not limited to discrimination *279against members of any particular race. Thus, although we were not there confronted with racial discrimination against whites, we described the Act in Griggs v. Duke Power Co., 401 U. S. 424, 431 (1971), as prohibiting “[discriminatory preference for any [racial] group, minority or majority” (emphasis added) ,6 Similarly the EEOC, whose interpretations are entitled to great deference, id., at 433-434, has consistently interpreted Title VII to proscribe racial discrimination in private employment against whites on the same terms as racial discrimination against nonwhites, holding that to proceed otherwise would

“constitute a derogation of the Commission’s Con*280gressional mandate to eliminate all practices which operate to disadvantage the employment opportunities of any group protected by Title VII, including Caucasians.” EEOC Decision No. 7A-31, 7 FEP 1326, 1328, CCH EEOC Decisions ¶ 6404, p. 4084 (1973).7

This conclusion is in accord with uncontradicted legislative history to the effect that Title VII was intended to “cover white men and white women and all Americans,” 110 Cong. Rec. 2578 (1964) (remarks of Rep. Celler), and create an “obligation not to discriminate against whites,” id., at 7218 (memorandum of Sen. Clark). See also id., at 7213 (memorandum of Sens. Clark and Case); id., at 8912 (remarks of Sen. Williams). We therefore hold today that Title VII prohibits racial discrimination against the white petitioners in this case upon the same standards as would be applicable were they Negroes and Jackson white.8

*281Respondents contend that, even though generally applicable to white persons, Title VII affords petitioners no protection in this case, because their dismissal was based upon their commission of a serious criminal offense against their employer. We think this argument is foreclosed by our decision in McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973).9

In McDonnell Douglas, a laid-off employee took part in an illegal “stall-in” designed to block traffic into his former employer’s plant, and was arrested, convicted, and fined for obstructing traffic. At a later date, the former employee applied for an open position with the company, for which he was apparently otherwise qualified, but the employer turned down the application, assertedly because of the former employee’s illegal activities against it. Charging that he was denied re-employment because he was a Negro, a claim the company denied, the former employee sued under Title VII. Reviewing the case on certiorari, we concluded that the rejected employee had adequately stated a claim under *282Title VII. See id., at 801. Although agreeing with the employer that “[njothing in Title VII compels an employer to absolve and rehire one who has engaged in such deliberate, unlawful activity against it,” id., at 803, we also recognized:

“[T]he inquiry must not end here. While Title VII does not, without more, compel rehiring of [the former employee], neither does it permit [the employer] to use [the former employee’s] conduct as a pretext for the sort of discrimination prohibited by [the Act]. On remand, [the former employee] must ... be afforded a fair opportunity to show that [the employer’s] stated reason for [the former employee’s] rejection was in fact pretext. Especially relevant to such a showing would be evidence that white employees involved in acts against [the employer] of comparable seriousness to the ‘stall-in’ were nevertheless retained or rehired. [The employer] may justifiably refuse to rehire one who was engaged in unlawful, disruptive acts against it, but only if this criterion is applied alike to' members of all races.” Id., at 804.10

We find this case indistinguishable from McDonnell Douglas. Fairly read, the complaint asserted that petitioners were discharged for their alleged participation in a misappropriation of cargo entrusted to Santa Fe, but that a fellow employee, likewise implicated, was not so disciplined, and that the reason for the discrepancy in *283discipline was that the favored employee is Negro while petitioners are white. See Conley v. Gibson, 355 U. S. 41, 45-46 (1957)11 While Santa Fe may decide that participation in a theft of cargo may render an employee unqualified for employment, this criterion must be “applied, alike to members of all races,” and Title VII is violated if, as petitioners alleged, it was not.

We cannot accept respondents’ argument that the principles of McDonnell Douglas are inapplicable where the discharge was based, as petitioners’ complaint admitted, on participation in serious misconduct or crime12 directed against the employer. The Act prohibits all racial discrimination in employment, without exception for any group of particular employees, and while crime or other misconduct may be a legitimate basis for discharge, it is hardly one for racial discrimination. Indeed, *284the Title VII plaintiff in McDonnell Douglas had been convicted for a nontrivial13 offense against his former employer. It may be that theft of property entrusted to an employer for carriage is a more compelling basis for discharge than obstruction of an employer’s traffic arteries, but this does not diminish the illogic in retaining guilty employees of one color while discharging those of another color.14

At this stage of the litigation the claim against Local 988 must go with the claim against Santa Fe, for in substance the complaint alleges that the union shirked its duty properly to represent McDonald, and instead “acquiesced and/or joined in” Santa Fe’s alleged racial discrimination against him. Local 988 argues that as a matter of law it should not be subject to liability under Title VII in a situation, such as this, where some but not all culpable employees are ultimately discharged on account of joint misconduct, because in representing all the affected employees in their relations with the em*285ployer, the union may necessarily have to compromise by securing retention of only some. We reject the argument. The same reasons which prohibit an employer from discriminating on the basis of race among the culpable employees apply equally to the union; and whatever factors the mechanisms of compromise may legitimately take into account in mitigating discipline of some employees, under Title VII race may not be among them.

Thus, we conclude that the District Court erred in dismissing both petitioners’ Title VII claims against Santa Fe, and petitioner McDonald’s Title VII claim against Local 988.

Ill

Title 42 U. S. C. § 1981 provides in pertinent part: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts ... as is enjoyed by white citizens . . . .”15 We have previously held, where discrimination against Negroes was in question, that § 1981 affords a federal remedy against discrimination in private employment on the basis of race, and respondents do not contend otherwise. Johnson v. Railway Express Agency, 421 U. S. 454, 459-460 (1975). See also Runyon v. McCrary, ante, at 168; Jones v. Alfred H. Mayer Co., 392 U. S. 409 (1968). The question here is *286whether § 1981 prohibits racial discrimination in private employment against whites as well as nonwhites.16

While neither of the courts below elaborated its reasons for not applying § 1981 to racial discrimination against white persons, respondents suggest two lines of argument to support that judgment. First, they argue that by operation of the phrase “as is enjoyed by white citizens,” § 1981 unambiguously limits itself to the protection of nonwhite persons against racial discrimination. Second, they contend that such a reading is consistent with the legislative history of the provision, which derives its operative language from § 1 of the Civil Rights Act of 1866, Act of Apr. 9, 1866, c. 31, § 1, 14 Stat. 27. See Runyon v. McCrary, ante, at 168-170, n. 8; Tillman v. Wheaton-Haven Recreation Assn., 410 U. S. 431, 439 (1973). The 1866 statute, they assert, was concerned predominantly with assuring specified civil rights to the former Negro slaves freed by virtue of the Thirteenth Amendment, and not at all with protecting the corresponding civil rights of white persons.

We find neither argument persuasive. Rather, our examination of the language and history of § 1981 con*287vinces us that § 1981 is applicable to racial discrimination in private employment against white persons.

First, we cannot accept the view that the terms of § 1981 exclude its application to racial discrimination against white persons. On the contrary, the statute explicitly applies to “all persons” (emphasis added), including white persons. See, e. g., United States v. Wong Kim Ark, 169 U. S. 649, 675-676 (1898). While a mechanical reading of the phrase “as is enjoyed by white citizens” would seem to lend support to respondents’ reading of the statute, we have previously described this phrase simply as emphasizing “the racial character of the rights being protected,” Georgia v. Rachel, 384 U. S. 780, 791 (1966). In any event, whatever ambiguity there may be in the language of § 1981, see cases cited, supra, at 286 n. 16, is clarified by an examination of the legislative history of § 1981’s language as it was originally forged in the Civil Rights Act of 1866. Tidewater Oil Co. v. United States, 409 U. S. 151, 157 (1972); Immigration Service v. Errico, 385 U. S. 214, 218 (1966). It is to this subject that we now turn.

The bill ultimately enacted as the Civil Rights Act of 1866 was introduced by Senator Trumbull of Illinois as a “bill ... to protect all persons in the United States in their civil rights . . .” (emphasis added), and was initially described by him as applying to “every race and color.” Cong. Globe, 39th Cong., 1st Sess., 211 (1866) (hereinafter Cong. Globe). Consistent with the views of its draftsman,17 and the prevailing view in the Congress as to the reach of its powers under the enforcement section *288of the Thirteenth Amendment,18 the terms of the bill prohibited any racial discrimination in the making and enforcement of contracts against whites as well as nonwhites. Its first section provided:

“[Tjhere shall be no discrimination in civil rights or immunities among the inhabitants of any State or Territory of the United States on account of race, color, or previous condition of slavery; but the inhabitants of every race and color, without regard to any previous condition of slavery or involuntary servitude, . . . shall have the same right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.” Id., at 211.19

*289While it is, of course, true that the immediate impetus for the bill was the necessity for further relief of the constitutionally emancipated former Negro slaves, the general discussion of the scope of the bill did not circumscribe its broad language to that limited goal. On the contrary, the bill was routinely viewed, by its opponents and supporters alike, as applying to the civil rights of whites as well as nonwhites.20 The point was most directly focused on in the closing debate in the Senate. *290During that debate, in response to the argument of Senator Davis of Kentucky that by providing for the punishment of racial discrimination in its enforcement section, § 2, the bill extended to Negroes a protection never afforded whites, Senator Trumbull said:

“Sir, this bill applies to white men as well as black men. It declares that all persons in the United States shall be entitled to the same civil rights, the right to the fruit of their own labor, the right to make contracts, the right to buy and sell, and enjoy liberty and happiness; and that is abominable and iniquitous and unconstitutional! Could anything be more monstrous or more abominable than for a member of the Senate to rise in his place and denounce with such epithets as these a bill, the only object of which is to secure equal rights to all the citizens of the country, a bill that protects a white man just as much as a black man? With what consistency and with what face can a Senator in his place here say to the Senate and the country that this is a bill for the benefit of black men exclusively when there is no such distinction in it, and when the very object of the bill is to break down all discrimination between black men and white men?” Id., at 599 (emphasis supplied).

So advised, the Senate passed the bill shortly thereafter. Id., at 606-607.

It is clear, thus, that the bill, as it passed the Senate, was not limited in scope to discrimination against nonwhites. Accordingly, respondents pitch their legislative history argument largely upon the House’s amendment of the Senate bill to add the “as is enjoyed by white citizens” phrase. But the statutory history is equally clear that that phrase was not intended to have the *291effect of eliminating from the bill the prohibition of racial discrimination against whites.

Representative Wilson of Iowa, Chairman of the Judiciary Committee and the bill’s floor manager in the House, proposed the addition of the quoted phrase immediately upon the introduction of the bill. The change was offered explicitly to technically “perfect” the bill, and was accepted as such without objection or debate. Id., at 1115.

That Wilson’s amendment was viewed simply as a technical adjustment without substantive effect is corroborated by the structure of the bill as it then stood. Even as amended the bill still provided that “there shall be no discrimination in civil rights or immunities among citizens of the United States in any State or Territory of the United States on account of race, color, or previous condition of slavery.” 21 To read Wilson’s amendment as excluding white persons from the particularly enumer*292ated civil rights guarantees of the Act would contradict this more general language; and we would be unwilling to conclude, without further evidence, that in adopting the amendment without debate or discussion, the House so regarded it.22

Moreover, Representative Wilson’s initial elaboration on the meaning of Senator Trumbull’s bill, which immediately followed his securing passage of the foregoing amendment, fortifies our view that the amended bill was intended to protect whites as well as nonwhites. As Wilson described it, the purpose of the measure was to provide “for the equality of citizens ... in the enjoyment of ‘civil rights and immunities.’ ” Id., at 1117. Then, speaking in particular of “immunities” as “ ‘freedom or exemption from obligation,’ ” he made clear that the bill “secures to citizens of the United States equality in the exemptions of the law. . . . Whatever exemptions there may be shall apply to all citizens alike. One race shall not be more favored in this respect than *293another/’ ibid. 23 Finally, in later dialogue Wilson made quite clear that the purpose of his amendment was not to affect the Act’s protection of white persons. Rather, he stated, “the reason for offering [the amendment] was this: it was thought by some persons that unless these qualifying words were incorporated in the bill, those rights might be extended to all citizens, whether male or female, majors or minors.” Cong. Globe, App. 157. Thus, the purpose of the amendment was simply “to emphasize the racial character of the rights being protected,” Georgia v. Rachel, 384 U. S., at 791, not to limit its application to nonwhite persons.24

*294The Senate debate on the House version of the bill25 likewise emphasizes that Representative Wilson's amendment was not viewed as limiting the bill's prohibition of racial discrimination against white persons. Senator Trumbull, still managing the bill on the floor of the Senate, was asked whether there was not an inconsistency between the application of the bill to all “citizens of every race and color'' and the statement that they shall have “the same right to make and enforce contracts . . . as is enjoyed by white persons,” (emphasis supplied) and it was suggested that the emphasized words were super*295fluous. Cong. Globe 1413. Senator Trumbull responded in agreement with the view that the words were merely “superfluous. I do not think they alter the bill. . . . [A]nd as in the opinion of the [Senate Judiciary] [C]ommittee which examined this matter they did not alter the meaning of the bill, the committee thought proper to recommend a concurrence . . . .” Ibid.

Finally, after the Senate’s acquiescence in the House version of the bill, id., at 1413-1416, and the subsequent veto by President Johnson,26 the debate in both the Senate and the House again reflected the proponents’ views that the bill did not favor nonwhites. Senator Trumbull once more rejected the view that the bill “discriminates in favor of colored persons,” id., at 1758, and in a similar vein, Representative Lawrence observed in the House that its “broad and comprehensive philanthropy which regards all men in their civil rights as equal before the law, is not made for any . . . race or color . . . but . . . will, if it become [s] a law, protect every citizen . . . .” Id., at 1833. On these notes, both Houses passed the bill by the prescribed margins, and the veto was overridden. Id., at 1802, 1861.

This cumulative evidence of congressional intent makes clear, we think, that the 1866 statute, designed to protect the “same right ... to make and enforce contracts” of “citizens of every race and color” was not understood or intended to be reduced by Representative Wilson’s amendment, or any other provision, to the protection solely of nonwhites. Rather, the Act was meant, by its broad terms, to proscribe discrimination in the making or enforcement of contracts against, or in favor of, any race. Unlikely as it might have appeared in 1866 *296that white citizens would encounter substantial racial discrimination of the sort proscribed under the Act, the statutory structure and legislative history persuade us that the 39th Congress was intent upon establishing in the federal law a broader principle than would have been necessary simply to meet the particular and immediate plight of the newly freed Negro slaves. And while the statutory language has been somewhat streamlined in re-enactment and codification, there is no indication that § 1981 is intended to provide any less than the Congress enacted in 1866 regarding racial discrimination against white persons. Runyon v. McCrary, ante, at 168, and n. 8. Thus, we conclude that the District Court erred in dismissing petitioners’ claims under § 1981 on the ground that the protections of that provision are unavailable to white persons.

The judgment of the Court of Appeals for the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

So ordered.

Mr. Justice White and Mr. Justice Rehnquist join Parts I and II of the Court’s opinion, but for the reasons stated in Mr. Justice White’s dissenting opinion in Runyon v. McCrary, ante, p. 192, cannot join Part III since they do not agree that § 1981 is applicable in this case. To that extent they dissent.

1.9 Equal Employment Opportunity Commission v. BCI Coca-Cola Bottling Co. 1.9 Equal Employment Opportunity Commission v. BCI Coca-Cola Bottling Co.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. BCI COCA-COLA BOTTLING COMPANY OF LOS ANGELES, doing business as Phoenix Coca-Cola Bottling Company; Coca-Cola Bottling Company of Albuquerque, Defendants-Appellees.

No. 04-2220.

United States Court of Appeals, Tenth Circuit.

June 7, 2006.

*477Susan R. Oxford (Eric S. Dreiband, General Counsel, Carolyn L. Wheeler, Acting Associate General Counsel, Vincent J. *478Blackwood, Acting Associate General Counsel, and Lorraine C: Davis, Assistant General Counsel, with her on the briefs), Equal Employment Opportunity Commission, Washington, D.C., for Plaintiff-Appellant.

E. Todd Presnell (Kara E. Shea with him on the brief), Miller & Martin PLLC, Nashville, Tennessee, for Defendants-Ap-pellees.

Before LUCERO, McKAY, and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.

The Equal Employment Opportunity Commission (“EEOC”) asks us to reverse the district court’s decision granting summary judgment to BCI Coca-Cola Bottling Co. of Los Angeles (“BCI”) on a claim of race discrimination arising from the termination of a black employee, Stephen Peters. It is undisputed that the human resources official who made the decision to terminate Mr. Peters worked in a different city, had never met Mr. Peters, and did not even know that he was black. In making the decision to terminate, however, the human resources official relied exclusively on information provided by Mr. Peters’ immediate supervisor, who not only knew Mr. Peters’ race but allegedly had a history of treating black employees unfavorably and making disparaging racial remarks in the workplace. Because we find that genuine issues of material fact exist as to whether BCI’s proffered explanation for the termination is a pretext for racial discrimination, we reverse the decision of the district court and remand for further proceedings.

I. Factual and Procedural Background

Stephen Peters worked as a merchandiser for BCI at its Albuquerque, New Mexico facility from May 1995 through October 2001. More than 60% of the 200 employees at the Albuquerque facility were Hispanic, while fewer than 2% were black. Merchandisers are hourly employees responsible for placement of Coca-Cola products in retail outlets such as grocery stores. Their job duties include arranging, cleaning, and rotating product displays and promotional materials. They generally work five days a week, with two days off, but because grocery stores remain open seven days a week, merchandisers’ schedules are staggered and they must occasionally work overtime to cover shifts. As the most senior merchandiser in the district, Mr. Peters had the most desirable schedule, with Saturdays and Sundays off. He was generally regarded as a “good merchandiser,” and in 2001 he received a certificate from BCI thanking him for five years of “service, dedication and commitment to the Company.” App. 143, 151. The certificate specifically thanked him for “being a team player.” Id. at 151.

Mr. Peters reported to Cesar Grado, a District Sales Manager, who is Hispanic. On a day-to-day basis, Mr. Peters was supervised by a salaried Account Manager, Jeff Katt, who is white. Although both Mr. Katt and Mr. Peters both reported directly to Mr. Grado, who handled all scheduling and route assignments for merchandisers and account managers in his district, it was common for merchandisers to call in sick to the account manager who supervised their work. Mr. Grado was responsible for monitoring and evaluating the employees under his supervision, but was not authorized to discipline or terminate anyone. Instead, Mr. Grado had broad discretion to “bring facts relating to the matter to the attention of [the] Human Resources Department,” which was ultimately responsible for deciding which company policy applied and whether to take any disciplinary action. App. 34. The *479highest-ranking human resources official in the Albuquerque office was Sherry Ped-erson. Ms. Pederson’s supervisor, Pat Edgar, worked 450 miles away in BCI’s Phoenix, Arizona office. Neither Ms. Ped-erson nor Ms. Edgar had met or even heard of Mr. Peters until September 28, 2001, four days before his termination.

The weekend of September 29-30, 2001, Mr. Grado faced a serious scheduling crunch. Several stores in his district were running ads for Coca-Cola products, necessitating an extra merchandiser for the weekend, and on the morning of Friday, September 28 he learned that another merchandiser who ordinarily worked as a “floater” to cover extra shifts had suffered an on-the-job injury and would be out for a week. Sometime between midday and 2:00 pm on Friday, Mr. Grado directed Mr. Katt to direct Mr. Peters to work on Sunday, September 30.1 When Mr. Katt relayed the instruction, Mr. Peters responded, “I can’t do it. I’ve got plans.” Id. at 67. According to Mr. Grado, when Mr. Katt recounted the conversation he added that Mr. Peters said he “might call in sick.” Id. at 35. Both Mr. Peters and Mr. Katt, however, deny that Mr. Peters said anything about being sick during that conversation, and Mr. Katt denies passing along any such comment to Mr. Grado.

Frustrated, Mr. Grado decided to seek advice from the Human Resources Department. Ms. Pederson was out of the' office on Friday afternoon, so Mr. Grado called Ms. Edgar in Phoenix. Mr. Grado said that he expected Mr. Peters was going to refuse to come to work on Sunday, and asked whether he could require Mr. Peters to come in on his day off. Specifically, he told Ms. Edgar that Mr. Peters planned to call in sick on Sunday. Ms. Edgar found that prospect “unacceptable” because, under BCI policy, an employee may not call in sick two days in advance. Id. at 23. She advised Mr. Grado to “find out what the situation was” and, unless Mr. Peters had a “compelling reason” why he could not come to work, to order Mr. Peters to work on Sunday. Id. She told Mr. Grado to characterize the instruction as a “direct order” and to say that failure to comply would amount to insubordination, which is grounds for termination. Id.

Mr. Grado then paged Mr. Peters, who called immediately. Mr. Grado ordered Mr. Peters to work on Sunday, and Mr. Peters responded that he had plans. Mr. Grado says that he asked Mr. Peters what his plans were, but that Mr. Peters angrily responded that his plans were “none of [Mr. Grado’s] business,” and started yelling. Mr. Peters says that Mr. Grado never asked his plans; instead, he simply told Mr. Grado that he had plans and that he had not been feeling well all week. They both agree, however, that Mr. Grado said, “I’m not asking you to come to work, I’m telling you to come to work. If you do not come to work, it could lead to insubordination and could lead to termination.” Id. at 58. They also agree that the conversation ended with Mr. Peters telling Mr. Grado, “[D]o what [you] got to do and I’ll do what I got to do.” Id. Mr. Peters claims that he intended this statement as a way to end the conversation without a confrontation. Mr. Grado interpreted it as open defiance, and a firm intention to disobey the order to come to work on Sunday.

*480Late in the afternoon on Friday, Mr. Grado again contacted Ms. Edgar in Phoenix. He related “exactly what had happened”: that he had asked Mr. Peters to describe his plans, but that Mr. Peters had refused to say what his plans were, had angrily said his plans were “none of [Mr. Grado’s] business,” and had told Mr. Gra-do to “do what he needed to do.” Id. at 24, 65. Ms. Edgar determined at that time that Mr. Peters’ conduct in that conversation, standing alone, amounted to insubordination warranting termination. Nonetheless, because it was late in the day on Friday, she did not make the decision to terminate Mr. Peters that day.

In fact Mr. Peters was sick. On the evening of Saturday, September 29 he can-celled his plans for Sunday and went to an urgent care clinic, complaining of a headache, sinus pain, and cough. A doctor diagnosed him with a sinus infection, gave him a prescription, and directed him not to return to work until Monday, October 1. That night Mr. Peters phoned Mr. Katt and explained that he had just come from the doctor’s office and probably could not work Sunday because of illness. Mr. Katt “said he didn’t have any problem with that,” but asked Mr. Peters to call in the morning if he felt well enough to work. Id. at 197. After hanging up, Mr. Katt repeatedly tried to page Mr. Grado to describe the conversation, but for some reason Mr. Grado never responded to the pages.

Mr. Peters did not work on Sunday, September 80. Mr. Katt and Mr. Grado personally worked routes that day to ensure coverage. Mr. Peters returned to work as usual on Monday morning.

On Monday, October 1, Ms. Edgar held a series of phone calls with Ms. Pederson (who was back in the office) and Mr. Grado concerning Mr. Peters’ conduct. Mr. Gra-do explained that Mr. Peters had not come to work on Sunday. Also, Ms. Pederson pulled Mr. Peters’ file and found a Disciplinary Status Notice describing an incident in 1999 where Mr. Peters received a two-day disciplinary suspension and “final warning” for insubordination from a different supervisor. During that incident, the supervisor had called Mr. Peters on a Friday morning and ordered him to work on his day off that weekend. Mr. Peters refused and, according to the status notice, “was rude and unprofessional in his conduct.” Id. at 53. He was warned that “[a]ll Coca-Cola employees must ... follow direct orders from their supervisors. Failure to comply is considered a direct act of insubordination .... subject to disciplinary action up to and including termination.” Id. at 54. Although Ms. Edgar did not know it, because the file provides no further details, Mr. Peters had good reason to be upset during the 1999 incident. He had learned earlier that week that his fiancée’s son — whom he had raised as his own son for years- — had been killed in a car accident. He could not work that Saturday because he had to serve as a pallbearer at the funeral. His supervisor told him that the funeral was no excuse for refusing a direct order because “he was not your biological son.” Id. at 147.

By the end of the day on Monday, Ms. Edgar made a final decision to terminate Mr. Peters for insubordination. In a declaration prepared as part of this litigation in 2004, Ms. Edgar said that her decision was based “[fjirst and foremost” on “the conduct of Mr. Peters toward Mr. Grado on Friday.” Id. at 26. The 1999 incident from the file reinforced for Ms. Edgar that Mr. Peters had a track record of insubordination, and also contributed to the decision. She emphasized that “Mr. Peters was not terminated because he did not show up for work on Sunday, except to the extent this conduct is viewed in context *481with his exchange with Mr. Grado on Friday ... as the fulfillment of Mr. Peters [sic] stated intention to defy a direct order from Mr. Grado.” Id. at 27. Ms. Edgar claims that she had already learned, in a conversation with Mr. Grado, that Mr. Peters had been excused by Mr. Katt from work on Sunday, but that this information did not affect her decision. She found Mr. Peters’ “alleged sickness” to be “highly suspect,” and “found it particularly suspicious that Mr. Peters chose to call in sick to Mr. Katt, rather than Mr. Grado, given the fact that Mr. Peters had been warned by Mr. Grado the day before that if he did not come to work he would be subject to termination.” Id. at 27.

Mr. Katt’s deposition provides a different account of these events. Mr. Katt says that he did not tell Mr. Grado that Mr. Peters phoned in sick until Monday evening at 6:00 pm, during a discussion of the upcoming week’s schedule. Mr. Katt asked which route Mr. Peters was going to cover, and Mr. Grado replied, “I think I’m going to terminate him.” Id. at 203. Mr. Katt asked, “You do know he called in, he called in sick to me?” Id. at 204. Mr. Grado “kind of paused” and asked, “Why didn’t you tell me that earlier?” Id. Mr. Katt replied, “I did. I tried to page you.” Id. According to Mr. Katt, this exchange took place Monday evening, after Ms. Edgar already made her decision to terminate Mr. Peters.

Mr. Peters was terminated Tuesday morning, October 2, at a meeting attended by Mr. Peters, Mr. Grado, Mr. Grado’s supervisor Don Bateluna, and Ms. Peterson. Mr. Grado began the discussion by announcing, “You’ve been terminated for insubordination, for not showing up for work.” Id. at 193. Mr. Peters was promptly presented with a termination paper. That document said nothing about Mr. Peters raising his voice or refusing to explain his plans during the phone conversation on Friday. Instead, the notice states that Mr. Peters had been given a direct order to work on Sunday, and had been warned that “failure to comply with the directive would be considered insubordination and would result in termination.” Id. at 41. It concludes, “You did not report to' work on Sunday 9-30-01, therefore your employment in [sic] being terminated for insubordination.” Id. The “violation date” listed is Sunday, September 30, the day Mr. Peters was supposed to come to work, not Friday, September 28, the day of the conversation with Mr. Grado. Id.

Mr. Peters explained that he had not reported to work because he was sick. He said that he had called Mr. Katt and had received permission to miss work that day “because I went to the doctor.” Id. at 193. He protested that “[n]either one of [you] asked me why I didn’t show up for work.” Id. Mr. Peters says that after he told them about the call to Mr. Katt, “they all got quiet. And when I left they shut the door and was [sic] in there talking.” Id.

Shortly after that meeting, Ms. Peder-son called Ms. Edgar and asked whether she knew Mr. Peters was black. Neither Ms. Pederson nor Ms. Edgar had ever met Mr. Peters, and neither knew that he was black until the meeting on Tuesday morning. Apparently Ms. Pederson’s inspection of the file was so cursory that she did not even learn basic information such as Mr. Peters’ race — which was noted on several documents in his personnel file — even as she was taking steps toward terminating him. Ms. Edgar maintains that “[r]ace played no part whatsoever in my decision to terminate the employment of Stephen Peters.” Id. at 28. Indeed, part of her job as a human resources official was to conduct affirmative action and equal employment opportunity training sessions for BCI management.

*482On October 11, 2001, Mr. Peters filed a charge with the EEOC alleging that his termination was the result of racial discrimination. The EEOC filed suit on his behalf in federal court on December 30, 2002. Its theory was that, even if Ms. Edgar was the sole decisionmaker and she did not know that Mr. Peters was black, “Grado harbored racial animus toward African American employees and ... this bias was properly imputed to BCI because of Grado’s substantial involvement in the termination process as Peters’ supervisor and Edgar’s sole source of information about the events on which BCI alleges the termination was primarily based.” Aplt. Br. 12. Relying principally on cases from other circuits, the EEOC characterized this claim as arising under a “cat’s paw” or “rubber stamp” theory, whereby an employer may be liable for the acts of a biased subordinate, even if that subordinate is not the formal decisionmaker.

In support of its allegations concerning Mr. Grado’s racial bias, the EEOC presented affidavits from a number of other BCI employees. Three other merchandisers who worked under the supervision of Mr. Grado — two black and one Hispanic— stated that Mr. Grado treated black employees worse than employees of other races. App. 181 (affidavit of James Young) (“African American employees were treated worse by Cesar Grado as compared to non-African American employees.”); id. at 183 (affidavit of Bryan Esquibel) (“If Grado did not like you, he treated you badly; but African American employees were treated even worse.”); id. at 185 (affidavit of Michael Wilson) (“It is my belief that Cesar Grado dislikes African Americans based on his treatment of me during my employment at [BCI].”). All three cited specific examples of incidents in which Mr. Grado subjected black employees to greater scrutiny and more serious discipline than Hispanic employees. Mr. Wilson, who is black, says that Mr. Grado “continually demeaned me and threatened to replace me” but always “treated Hispanic Merchandisers with respect.” Id. at 185.

Mr. Wilson also “recalled] many race-based remarks made to me by Cesar Gra-do during work hours.” Id. at 184. According to Mr. Wilson, Mr. Grado told jokes about black men dating Anglo women, and stated that “Black guys [do] not look good in trucks, they should drive Cad-illacs.” Id. at 185. One day, while watching Mr. Wilson clean an outdoor vending machine during the winter, Mr. Grado urged him to hurry because “brothers don’t like the cold.” Id. (internal quotation marks omitted). Also, Mr. Katt says that after the termination, during a drive to a work site, Mr. Grado asked, “Did you hear Steve is trying to sue me?” Id. at 212. Although he is less than “100 percent clear” about his recollection of the conversation, Mr. Katt says that Mr. Grado may have used the word “nigger” or a comparable racial epithet to describe Mr. Peters during that conversation. Id.

The EEOC also compared Mr. Grado’s treatment of Mr. Peters with his treatment of Hispanic employees under similar circumstances. On one occasion, for example, Mr. Grado was short merchandisers during a busy weekend, so he directed Mr. Katt to direct Monica Lovato, a Hispanic merchandiser, to work one of her days off. Ms. Lovato planned to celebrate her birthday that weekend, and she told Mr. Katt she wanted both days off, but Mr. Katt insisted and tried to accommodate her schedule as much as possible. That weekend Ms. Lovato never showed up to work as directed, even after Mr. Katt paged her repeatedly. When he was informed that Ms. Lovato had disobeyed an order to come into work, Mr. Grado never inquired about her reasons. Instead, Mr. Grado *483remarked, “You can’t make somebody work one of their days off.” Id. at 211. Ms. Lovato never received any discipline— not even a warning — as a result of the incident.

The district court granted summary judgment in favor of BCI. Operating within the McDonnell Douglas burden-shifting framework, it held that the EEOC had established a prima facie case of discrimination, but that BCI had articulated a legitimate nondiscriminatory reason for the termination: “his insubordinate conduct toward Grado.” Mem. Op. & Order 19. It held that no genuine issue of material fact exists as to whether this proffered explanation was pretextual because the pretext inquiry must focus exclusively on whether Ms. Edgar honestly believed that Mr. Peters was guilty of insubordination on Friday, September 28. Citing our statement in Kendrick v. Penske Transportation Services, Inc., 220 F.3d 1220, 1231 (10th Cir.2000), that pretext must be evaluated by “look[ing] at the facts as they appear to the person making the decision to terminate plaintiff,” the district court concluded that any factual disputes concerning the Friday conversation were immaterial because Ms. Edgar correctly applied BCI’s policy concerning insubordination to the facts as she understood them. Mem. Op. & Order 24-25. The district court found the termination letter (‘You did not report to work on Sunday 9-30-01, therefore your employment [is] being terminated for insubordination”) “consistent” with Ms. Edgar’s declaration that the sole act of insubordination for which he was terminated was his conduct during the call on Friday. Id.-at 26. According to the district court, the phone call and the failure to come to work formed part of the same “chain of events,” and no reasonable jury could find that BCI’s explanations were shifting or inconsistent.

In evaluating the EEOC’s “rubber stamp” or “cat’s paw” claim, the district court acknowledged that the EEOC had raised a genuine issue of fact as to whether Mr. Grado harbored racial bias against African Americans. It noted, however, that other circuits’ “rubber stamp” cases “involved situations in which a decision-maker accepted the recommendations of a biased supervisor without conducting an independent investigation.” Id. at 29 (emphasis in original). Here, Mr. Grado never officially recommended that Mr. Peters be terminated; he merely provided information to Ms. Edgar, who made the final decision. Also, according to the district court, Ms. Edgar did conduct an independent investigation: she asked Ms. Peder-son to pull Mr. Peters’ personnel file. The issue of Mr. Grado’s bias therefore was not material.

The district court granted BCI’s motion for summary judgment, and the EEOC now appeals. We review the district court’s decision de novo, viewing the evidence in the light most favorable to the EEOC ánd drawing all reasonable inferences in its favor. Fuerschbach v. S.W. Airlines Co., 439 F.3d 1197, 1207 (10th Cir.2006). We will affirm “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact” and BCI is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c).

II. Discussion

Under the McDonnell Douglas framework, a plaintiff bears the initial burden of establishing a prima facie case of racial discrimination, which “consists of a showing that (1) the plaintiff belongs to some protected class, (2) the plaintiff was qualified for the position or benefit at issue, (3) *484the plaintiff suffered an adverse employment action, and (4) the plaintiff was treated less favorably than others (e.g., the position at issue remained open after the adverse employment action).” Exum v. U.S. Olympic Comm., 389 F.Bd 1130, 1134 (10th Cir.2004). BCI concedes that the EEOC has established a prima facie case here: Mr. Peters is black, he was qualified for his job as a merchandiser, he was terminated, and the position remained open.

The burden therefore shifts to BCI to articulate a legitimate, nondiscriminatory reason for the employment action. Jaramillo v. Colo. Judicial Dep’t, 427 F.3d 1303, 1308 (10th Cir.2005). The EEOC concedes that BCI has articulated a nondiscriminatory reason for its termination of Mr. Peters: his insubordination on Friday, September 28 during the phone conversation with Mr. Grado. Significantly, BCI maintains that Mr. Peters’ absence on Sunday, September 30 had nothing to do with the decision, except insofar as it confirmed that Mr. Peters’ statements on Friday were insubordinate. App. 27 (“Mr. Peters was not terminated because he did not show up for work on Sunday....”).

The sole issue on appeal is whether the EEOC has made a sufficient showing that BCI’s proffered explanation is a pretext for race discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Here, it is undisputed that Ms. Edgar, who formally made the termination decision, worked in a different city and had no idea that Mr. Peters is black. She therefore could not have acted for racially discriminatory reasons. For the EEOC to prevail, it must make not only a factual showing that Mr. Grado harbored racial animus toward black employees, but also a convincing legal claim that his racial animus should be imputed to BCI despite the fact that Mr. Grado had no power to terminate anyone.

A. Subordinate Bias Liability

Other courts have recognized claims under Title VII based on the bias of a subordinate, often using the terms “cat’s paw” or “rubber stamp” to describe the theory. The “cat’s paw” doctrine derives its name from a fable, made famous by La Fontaine, in which a monkey convinces an unwitting cat to pull chestnuts from a hot fire. See Fables of La Fontaine 344 (Walter Thornbury trans., Chartwell Books 1984). As the cat scoops the chestnuts from the fire one by one, burning his paw in the process, the monkey eagerly gobbles them up, leaving none left for the cat. Id. Today the term “cat’s-paw” refers to “one used by another to accomplish his purposes.” Webster’s Third New International Dictionary Unabridged 354 (2002). In the employment discrimination context, “cat’s paw” refers to a situation in which a biased subordinate, who lacks decision-making power, uses the formal decision-maker as a dupe in a deliberate scheme to trigger a discriminatory employment action. Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1249 (11th Cir.1998). The “rubber stamp” doctrine has a more obvious etymology, and refers to a situation in which a decisionmaker gives perfunctory approval for an adverse employment action explicitly recommended by a biased subordinate. See Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 288 (4th Cir.2004) (en banc). Our sister circuits overwhelmingly have endorsed some version of these doctrines. See Galdamez v. Potter, 415 F.3d 1015, 1026 n. 9 (9th Cir.2005); Hill, 354 F.3d at 290; Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir.1999); Griffin v. Wash. Convention Ctr., 142 F.3d 1308, 1311-12 (D.C.Cir.1998); Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d *485344, 354-55 (6th Cir.1998); Long v. Eastfield Coll., 88 F.3d 300, 307 (5th Cir.1996); Abrams v. Lightolier Inc., 50 F.3d 1204, 1213-14 (3d Cir.1995); Stacks v. S.W. Bell Yellow Pages, Inc., 27 F.3d 1316, 1323 (8th Cir.1994); Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir.1990) (Posner, J.) (inaugurating the descriptor “cat’s-paw” for this category of claim).

Although this Court has not yet had occasion to find for a plaintiff on a subordinate bias claim, we have strongly signaled our endorsement of the theory. We have stated that “under certain circumstances, a defendant may be held liable for a subordinate employee’s prejudice even if the manager lacked discriminatory intent.” English v. Colo. Dep’t of Corrs., 248 F.3d 1002, 1011 (10th Cir.2001). Specifically, we have described a “rubber stamp” theory of liability, noting that “[t]o recover under this theory, the plaintiff must show ‘that the decisionmaker followed the biased recommendation [of a subordinate] without independently investigating the complaint against the employee.’ ” Id. (quoting Stimpson, 186 F.3d at 1332) (alteration in original). Twice we have held that a plaintiff could not prevail because the decision-maker had conducted an independent investigation of the facts, rather than relying entirely on the recommendation of the biased subordinate. See Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1231-32 (10th Cir.2000) (finding it “[i]mpor-tant[ ]” that “in the course of his investigation” the decisionmaker asked the employee “to give his version of the exchange,” but the employee declined to do so); English, 248 F.3d at 1011 (noting that the decisionmaker met twice with the employee and his attorney, and specifically asked for evidence rebutting or mitigating the findings of the allegedly biased subordinates). But we have described the plaintiffs’ underlying theory of liability as “correct.” English, 248 F.3d at 1011.

These subordinate bias theories comport with the basic agency principles incorporated by statute into Title VII. For purposes of Title VII, the term “employer” includes not only any “person engaged in an industry affecting commerce” but “any agent of such a person.” 42 U.S.C. § 2000e(b). Although that language “surely evinces an intent to place some limits on the acts of employees for which employers are to be held responsible,” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 72, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), employers may be vicariously liable for the actions of their employees — even intentional torts outside the scope of their employment — if the employee “ ‘was aided in accomplishing the tort by the existence of the agency relation,’ ” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 758, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) (quoting Restatement (Second) of Agency § 219(2)(d) (1958) [hereinafter Restatement] ). In Ellerth, which involved a hostile work environment claim, the Supreme Court held that “a tangible employment action taken by the supervisor becomes for Title VII purposes the act of the employer.” Id. at 762, 118 S.Ct. 2257. Citing with approval the seminal “cat’s paw” opinion by Judge Posner, the Court seemed unconcerned with the possibility that the “tangible employment decision[ ]” might “be subject to review by higher level supervisors.” Id. (citing Shager, 913 F.2d at 405). The “aided by the agency relation” standard applies even more clearly to subordinate bias claims, such as “cat’s paw” or “rubber stamp” claims, because the allegedly biased subordinate accomplishes his discriminatory goals by misusing the authority granted to him by the employer— for example, the authority to monitor performance, report disciplinary infractions, and recommend employment actions. See Restatement § 219(2) cmt. e (explaining *486that the “aided by the agency relation” standard applies in situations where “the servant may be able to cause harm because of his position”); cf. Faragher v. City of Boca Raton, 524 U.S. 775, 802-05, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (contemplating vicarious liability based on abuse of authority by supervisors, but emphasizing that the “aid” in the “aided by the agency relation” formula must amount to more than access to a pool of potential victims and “the unspoken suggestion of retaliation”).

Holding employers accountable for the actions of biased subordinates also advances the purposes of Title VII. It should go without saying that a company’s organizational chart does not always accurately reflect its decisionmaking process. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151-52, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (finding that the bias of a supervisor, the husband of the formal decisionmaker, could be imputed to the company because the supervisor “was the actual decisionmaker” and was “principally responsible for petitioner’s firing”); Russell v. McKinney Hosp. Venture, 235 F.3d 219, 227 (5th Cir.2000) (noting that “courts will not blindly accept the titular decisionmaker as the true decisionmaker”). A biased low-level supervisor with no disciplinary authority might effectuate the termination of an employee from a protected class by recommending discharge or by selectively reporting or even fabricating information in communications with the formal decisionmaker. Recognition of subordinate bias claims forecloses a strategic option for employers who might seek to evade liability, even in the face of rampant race discrimination among subordinates, through willful blindness as to the source of reports and recommendations. Id. n. 13 (holding that employers may not insulate themselves from Title VII claims simply “by ensuring that the one who performed the employment action was isolated from the employee”). Indeed, such claims have the salutary effect of encouraging employers to verify information and review recommendations before taking adverse employment actions against members of protected groups — particularly if, as we have held, an employer can escape liability entirely by performing an independent investigation. See English, 248 F.3d at 1011. Construing the definition of an “employer” to permit subordinate bias claims therefore serves Title VII’s “deterrent purpose.” See Ellerth, 524 U.S. at 764, 118 S.Ct. 2257 (noting that the extent of employer liability under Title VII should not depend exclusively on common-law agency principles, but also should encourage employer procedures that prevent discriminatory actions).

Despite broad support for some theory of subordinate bias liability, our sister circuits have divided as to the level of control a biased subordinate must exert over the employment decision. Some courts take a lenient approach, formulating the inquiry as whether the subordinate “possessed leverage, or exerted influence, over the titular decisionmaker.” See Russell, 235 F.3d at 227. On this view, “summary judgment generally is improper where the plaintiff can show that an employee with discriminatory animus provided factual information or other input that may have affected the adverse employment action.” Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1459 (7th Cir.1994) (citing Shager, 913 F.2d at 405). This standard apparently contemplates that any “influence,” the reporting of any “factual information,” or any form of “other input” by a biased subordinate renders the employer liable so long as the subordinate “may have affected” the employment action. Such a weak relationship between the subordinate’s actions and the ultimate employment deci*487sion improperly eliminates a requirement of causation. See Ellerth, 524 U.S. at 745, 118 S.Ct. 2257 (construing Title VII “to accommodate the agency principle of vicarious liability for harm caused by misuse of supervisory authority” (emphasis added)). When a biased subordinate merely plays a peripheral role, it cannot be said that he has “accomplish[ed]” a tortious act and “cause[d] harm” as required under agency law principles and, accordingly, under Title VII. Restatement § 219(2)(d) & cmt. e; see also id. cmt. a (“Rationale of liability”) (“The assumption of control is a usual basis for imposing tort liability when the thing controlled causes harm.”). Moreover, a lenient “may have affected” standard that punishes employers for any “input” — no matter how minor — weakens the deterrent effect of subordinate bias claims by imposing liability even where an employer has diligently conducted an independent investigation.

At the opposite extreme, the Fourth Circuit has held that an employer cannot be held liable even if a biased subordinate exercises “substantial influence” or plays a “significant” role in the employment decision. Hill, 354 F.3d at 291. Taking its cue from the Supreme Court’s statements in Reeves that “petitioner [had] introduced evidence that [the supervisor] was the actual decisionmaker” and was “principally responsible” for his firing, Reeves, 530 U.S. at 151-52, 120 S.Ct. 2097, the Fourth Circuit held that these formulations mark “the outer contours of who may be considered a decisionmaker for purposes of imposing liability upon an employer.” Hill, 354 F.3d at 289. On this view, the deci-sionmaker must be a “cat’s paw” so completely beholden to the subordinate “that the subordinate is the actual decisionmaker.” Id. at 290. The Fourth Circuit’s strict approach makes too much of the phrase “actual decisionmaker” in Reeves; the Court was describing what the petitioner’s evidence showed, not prescribing the “outer contours” of liability. See Reeves, 530 U.S. at 151-52, 120 S.Ct. 2097 (using the phrases “actual decisionmaker” and “principally responsible” only in Part III.B, which begins, “Applying this standard here ... ”). The Fourth Circuit’s peculiar focus on “who is a ‘decisionmaker’ for purposes of discrimination actions,” Hill, 354 F.3d at 286, seems misplaced. The word “decisionmaker” appears nowhere in Title VII. Instead, the statute imposes liability for discrimination by employers and their agents, 42 U.S.C. § 2000e(b), which in accordance with agency law principles includes not only “deci-sionmakers” but other agents whose actions, aided by the agency relation, cause injury. Ellerth, 524 U.S. at 760, 118 S.Ct. 2257. The Fourth Circuit’s standard also undermines the deterrent effect of subordinate bias claims, allowing employers to escape liability even when a subordinate’s discrimination is the sole cause of an adverse employment action, on the theory that the subordinate did not exercise complete control over the decisionmaker.

We find ourselves in agreement with the Seventh Circuit, which has rejected the Fourth Circuit’s approach as “inconsistent with the normal analysis of causal issues in tort litigation.” Lust v. Sealy, Inc., 383 F.3d 580, 584 (7th Cir.2004). To prevail on a subordinate bias claim, a plaintiff must establish more than mere “influence” or “input” in the decision-making process. Rather, the issue is whether the biased subordinate’s discriminatory reports, recommendation, or other actions caused the adverse employment action. Id. This standard comports with the agency law principles that animate the statutory definition of an “employer.” See Restatement § 219 (describing the scope of a master’s liability “for the torts of his servants” and thereby incorporating stan*488dard tort concepts like causation). Both the Supreme Court and this Court require a comparable causal connection as part of analogous workplace discrimination claims. See, e.g., Clark County School Dist. v. Breeden, 532 U.S. 268, 272, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (requiring a “causal connection” between the plaintiffs protected activities and the adverse employment action in a Title VII retaliation claim); Rea v. Martin Marietta Corp., 29 F.3d 1450, 1457 (10th Cir.1994) (requiring a “causal nexus” between allegedly discriminatory workplace statements and the termination decision in an ADEA claim). We reaffirm our earlier decisions holding that, because a plaintiff must demonstrate that the actions of the biased subordinate caused the employment action, an employer can avoid liability by conducting an independent investigation of the allegations against an employee. English, 248 F.3d at 1011. In that event, the employer has taken care not to rely exclusively on the say-so of the biased subordinate, and the causal link is defeated. Indeed, under our precedent, simply asking an employee for his version of events may defeat the inference that an employment decision was racially discriminatory. Kendrick, 220 F.3d at 1231-32. Employers therefore have a powerful incentive to hear both sides of the story before taking an adverse employment action against a member of a protected class.

Finally, we address the district court’s conclusion that an employer may be liable on a subordinate bias theory only if the decisionmaker receives and approves an explicit recommendation to terminate an employee. Regrettably, subordinate bias cases have suffered from an abundance of vivid metaphors. The Fourth Circuit, for example, seems to have taken the “cat’s paw” metaphor too literally in deriving its total-control-over-the-aetual-decision standard. Lust, 383 F.3d at 584. Likewise, the district court in this case seems to have taken the “rubber stamp” metaphor too literally, requiring that an explicit recommendation must cross the desk of the decisionmaker, regardless of whether the subordinate’s discriminatory actions in fact caused the termination. That limitation of subordinate bias claims not only runs counter to the fairly broad “aided by the agency relation” principle embodied in Title VII, but would leave employees unprotected so long as a subordinate stops short of mouthing the words “you should fire him,” in person or on paper, to the deci-sionmaker. Stripped of their metaphors, subordinate bias claims simply recognize that many companies separate the deci-sionmaking function from the investigation and reporting functions, and that racial bias can taint any of those functions. We see no reason to limit subordinate bias liability to situations that closely resemble the “cat’s paw,” “rubber stamp,” “conduit,” “vehicle,” or other metaphors that imaginative lawyers and judges have developed to describe such claims.

With these principles in mind, we turn to BCI’s decision to terminate Mr. Peters.

B. The Subordinate Bias Claim in this Case

The EEOC argues that BCI’s proffered explanation for its termination decision is pretextual. To survive summary judgment on a subordinate bias theory, the plaintiff must first establish a genuine issue of material fact concerning the bias of the subordinate. It must then establish genuine issues of material fact as to whether the proffered reason for the employment action is pretextual, which in a subordinate bias claim requires the plaintiff to demonstrate a causal relationship between the subordinate’s actions and the employment decision.

*489 1. Mr. Grado’s Racial Bias

The district court held, and we agree, that the EEOC has raised a genuine issue of fact concerning Mr. Grado’s racial animus. In general, “isolated racial comments” are insufficient to establish pretext unless they “can somehow be tied to the employment actions disputed in the case at hand.” Stewart v. Adolph Coors Co., 217 F.3d 1285, 1289 (10th Cir.2000) (internal quotation marks omitted). Nonetheless, at the summary judgment stage “all rational inferences from the evidence must be made in favor of the party opposing the summary judgment motion.” Ortiz v. Norton, 254 F.3d 889, 896 (10th Cir.2001). In Ortiz, we held that evidence of discrimination in employment decisions affecting other workers “could support an inference that the decision makers harbored a bias against Hispanics which might have affected other decisions, including the decisions adverse to plaintiff.” Id. A plaintiff also “may show pretext ‘by providing evidence that he was treated differently from other similarly situated, nonprotected employees who violated work rules of comparable seriousness,’ ” provided the “similarly situated” employee shares the same supervisor, is subject to the same performance standards, and otherwise faces comparable “relevant employment circumstances.” Green v. New Mexico, 420 F.3d 1189, 1194 (10th Cir.2005) (quoting Kendrick, 220 F.3d at 1232).

In this case, the EEOC has produced sufficient evidence to create a jury question concerning Mr. Grado’s racial animus. Mr. Wilson claims that Mr. Grado directed “many race-based remarks,” and offered three examples of racial jokes and put-downs. App. 184-85. In his affidavit, Mr. Katt says that Mr. Grado may have used a racial epithet to describe Mr. Peters in the immediate aftermath of the termination and lawsuit.2 Id. at 212. These comments may have been infrequent, but they certainly were not “isolated”: they were directed at other black merchandisers under Mr. Grado’s supervision, suggesting a pattern of racial bias in disciplinary matters that could have affected Mr. Grado’s conduct with respect to Mr. Peters’ termination, and in one case concerned Mr. Peters himself.

In addition, three other merchandisers^ — two black and one Hispanic — submitted affidavits giving specific examples of Mr. Grado’s disparate treatment of black and Hispanic merchandisers. Mr. Young claims that Mr. Grado “nit-pick[ed] my work” and “constantly threatened to change my days off and to change my route,” but “did not ... treat non-African American employees in this manner.” App. 181. He recalls being threatened with a schedule change for leaving the back room of one of his stores “a bit messy,” while Mr. Grado tolerated a non-black merchandiser’s “very messy” back room “many times.” Id. Mr. Esquibel *490named six Hispanic employees who were not fired after disobeying company directives. Id. at 183. Mr. Wilson says that Mr. Grado was “unusually picky” with black merchandisers, “often calling us back to stores that had been serviced to redo some minor detail, while the Hispanic Merchandisers were not subject to this same level of scrutiny.” Id. at 185. Broadly, he claims that Mr. Grado “treated Hispanic Merchandisers with respect” but “continually demeaned me and threatened to replace me.” Id.

Most importantly, the EEOC produced evidence of Mr. Grado’s unfazed response to the incident involving a Hispanic merchandiser, Ms. Lovato. Like Mr. Peters, Ms. Lovato reported to Mr. Grado and was directed to work one of her days off. Like Mr. Peters, she failed to come to work, in direct violation of her instructions and in spite of considerable efforts by Mr. Katt to come to accommodate her schedule. Unlike Mr. Peters, who was fired two days later, Ms. Lovato received no discipline whatsoever as a result of the incident, with Mr. Grado reportedly saying, “You can’t make somebody work one of their days off.” Id. at 211. To be sure, there are factual differences between these incidents: Ms. Lovato received all of her orders through Mr. Katt whereas Mr. Peters spoke to Mr. Grado directly, and Ms. Lo-vato initially acquiesced in the orders (before disobeying them) whereas, according to Mr. Grado, Mr. Peters initially behaved in a defiant manner and announced an intention to disobey the orders (before being excused from work). They are similar enough, however, that in light of the dramatic difference between Mr. Grado’s actions in each case, as well as the other evidence of discriminatory conduct, a reasonable jury could find the situations comparable and infer that racial animus played a role in Mr. Peters’ treatment.

We do not necessarily believe that each of the incidents recounted above would support a charge of discrimination in isolation, but taken as a whole, this evidence of racial comments and disparate treatment of black merchandisers creates a genuine issue of fact regarding Mr. Gra-do’s racial bias.

2. Pretext and Causation

To show that an employer’s proffered nondiscriminatory reason for an employment action is pretextual, a plaintiff must produce evidence of “ ‘such weaknesses, implausibilities, inconsistencies, in-coherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons.’ ” Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir.1997) (quoting Olson v. Gen. Elec. Astrospace, 101 F.3d 947, 951-52 (3d Cir.1996)). Because the EEOC’s pretext argument depends in part on a subordinate bias theory, it must establish a genuine issue of material fact as to whether Mr. Grado’s bias translated into discriminatory actions that caused Mr. Peters’ termination.

BCI now maintains that it fired Mr. Peters solely because of his defiant conduct on the phone with Mr. Grado on Friday, and that “Mr. Peters was not terminated because he did not show up for work on Sunday, except to the extent this conduct is viewed ... as the fulfillment of [his] stated intention to defy a direct order from Mr. Grado.” App. 27. On this theory, missing work on Sunday merely confirmed that Mr. Peters’ statements on Friday were insubordinate, and did not serve as a basis for dismissal. Yet the first explanation provided by Mr. Grado at the Tuesday morning meeting was, “You’ve *491been terminated for insubordination, for not showing up for work.” Id. at 193 (emphasis added). The Disciplinary Status Notice unequivocally states that the failure to show up for work on Sunday was the act of insubordination: “You did not report to work on Sunday 9-30-01, therefore your employment in [sic] being terminated for insubordination.” Id. at 41. That document lists Sunday, not Friday, as the date of the violation that prompted the termination, indicating that the act of insubordination was the failure to come into work, not Mr. Peters’ attitude during the earlier phone call. Indeed, on October 16, 2001, just two weeks after the termination, Ms. Pederson filed paperwork with the New Mexico Department of Labor stating that “Stephen was told by Cesar Grado that if he didn’t show up, it would be considered insubordination.” Id. at 165 (emphasis added). When asked to describe the “final incident that caused the discharge,” Ms. Pederson wrote, “Stephen did not show up for work on 9/30.” Id. Only later did BCI characterize its decision to fire Mr. Peters as hinging on his defiant conduct over the phone, rather than on his absence.

A jury might reasonably conclude that BCI’s original explanation, that Mr. Peters was fired because he failed to show up for work on Sunday, was pretextual because Mr. Peters was excused from work that day. Mr. Peters was in fact sick, had visited an urgent care clinic, and had been diagnosed with a sinus infection and directed not to work until Monday. He phoned Mr. Katt to report the illness, and was excused from work — an interaction that BCI concedes is perfectly ordinary between merchandisers and account managers. A jury could credit Ms. Edgar’s statements that she knew that Mr. Peters’ absence was excused and nonetheless (incorrectly, as it turns out) deemed Mr. Peters’ “alleged sickness” suspicious under the circumstances. But it might just as easily credit Mr. Katt’s testimony, rather than Ms. Edgar’s, and conclude that neither Mr. Grado nor Ms. Edgar learned that Mr. Peters called in sick until the scheduling discussion between Mr. Katt and Mr. Grado on Monday evening, after Ms. Edgar claims she had already made the decision to fire Mr. Peters. The affidavits of Mr. Katt and Mr. Peters state that key players in the decision fell silent upon hearing that Mr. Peters’ absence was excused, suggesting that they were indeed surprised by the news.

Recognizing the weakness of the original explanation, BCI has refined its position by relying entirely on Mr. Peters’ purported insubordination in his conversation with Mr. Grado on Friday. A jury could conclude, however, that this reason too is a pretext for race discrimination, as the result of Mr. Grado’s racial animus. It is undisputed that Ms. Edgar, and Ms. Edgar alone, made the formal termination decision. Mr. Grado has succinctly described his role in the disciplinary process: “I gather the facts and I present them to our HR department, and they decide whether it is an insubordination or not and whether there’s action to be taken or not.” App. 63. Surely Ms. Edgar harbored no ill will toward Mr. Peters on account of his race, because she worked in Phoenix and did not even know that he was black. Yet it is also undisputed that Ms. Edgar relied exclusively on Mr. Grado’s account of the Friday phone conversation in making her decision. She conducted no independent inquiry into the events that took place that Friday, and failed to take even the basic step — cited by this Court in Kendrick, 220 F.3d at 1231-32 — of asking Mr. Peters for his side of the story. Accordingly, Mr. Grado’s report that Mr. Peters had behaved in a defiant, insubordinate manner on Friday caused the termination. If the *492jury concludes that Mr. Grado’s report was tainted by race discrimination — as it might, for the reasons explained above — it could also find that the proffered reason for firing Mr. Peters, which rests entirely on that report, is pretextual.

BCI argues that any factual disputes concerning the Friday conversation between Mr. Grado and Mr. Peters are immaterial because both parties agree that Mr. Peters ended the conversation by saying, “[D]o what [you] got to do and I’ll do what I got to do.” App. 58. We agree that this statement can only be interpreted as defiance, and if Mr. Grado had reported nothing but this closing remark to Ms. Edgar, there would be no reason to believe that racial bias on the part of Mr. Grado caused the termination. Yet Mr. Grado reported several additional facts about his conversations on Friday afternoon. First, he told Ms. Edgar that he had learned, through Mr. Katt, that Mr. Peters was already planning to call in sick two days later, in violation of company policy. Second, he reported that in their phone call Friday afternoon, he asked Mr. Peters to describe his plans, affording an opportunity for Mr. Peters to explain his scheduling conflict. Third, he reported that Mr. Peters angrily replied that it was “none of [your] business,” and was “yelling” during the discussion. Id. at 36, 65.

All of those facts are disputed. Instead of crediting Mr. Grado’s testimony, a jury might believe Mr. Katt, who says that he never told Mr. Grado that Mr. Peters had advance plans to call in sick on Sunday, or Mr. Peters, who says that he simply told Mr. Grado that he had been feeling sick that week, not that he planned to violate company policy. A jury might also credit Mr. Peters’ version of the Friday afternoon conversation, in which Mr. Grado never bothered to ask Mr. Peters’ reasons, Mr. Peters never refused to answer Mr. Grado’s questions, and Mr. Peters remained calm throughout the discussion. There is good reason to believe that Ms. Edgar acted on those additional facts, not just on Mr. Peters’ “do what you have to do” remark. She denounced Mr. Peters’ advance plans to call in sick as “not acceptable,” an abuse of the company sick leave policy. Id. at 23. Also, it was Ms. Edgar who originally insisted that Mr. Grado “find out what the situation was” and determine whether Mr. Peters had a “compelling reason” he could not come to work, which suggests that she found that information important in making her decision. Id. at 23. Taking the evidence in the light most favorable to the EEOC, it is easy to imagine that the additional details of Mr. Grado’s account, in which Mr. Peters appeared to be fabricating his illness, started yelling at his supervisor, and refused to answer questions, led Ms. Edgar to characterize the conversation as “insubordination” warranting dismissal. The question is not whether Ms. Edgar could have terminated Mr. Peters because of his closing remark alone, which appears to have been permissible under BCI policy, but what actually did cause the adverse employment action. If a jury credits the testimony of Mr. Peters and Mr. Katt, and thus concludes that Mr. Grado lied to Ms. Edgar, it could also find that the additional claims about Mr. Peters’ conduct caused the termination.

Finally, BCI argues, and the district court agreed, that Ms. Edgar did not rely solely on Mr. Grado but conducted an independent investigation. This investigation consisted of exactly one action: directing Ms. Pederson to pull Mr. Peters’ personnel file. We find this “investigation” inadequate, as a matter of law, to defeat the inference that Mr. Grado’s racial bias tainted the decision. Obviously the file contained no information about the recent incident involving Mr. Grado, so it *493is difficult to see how reading it could independently” confirm what had happened. True, the file contained a description of a 1999 incident of insubordination, which (despite its ignoble back story) seemed consistent with Mr. Grado’s version of events. The problem is that Ms. Edgar never sought any other version of events, and therefore had no reason other than Mr. Grado’s report to believe that the file was relevant. Simply pulling the file therefore does not constitute an independent investigation, and a jury could conclude that Mr. Grado’s factually disputed report — the sole source of information on which Ms. Edgar relied — caused the termination.

Because the EEOC has established genuine issues of material fact as to whether the nondiscriminatory reasons offered by BCI are pretextual, summary judgment was inappropriate.

III. Conclusion

We REVERSE the judgment of the district court and REMAND the case for further proceedings consistent with this opinion.