Does a finding that neither defendants nor their officials engaged in employment practices with a willful or conscious purpose of excluding blacks or Mexican-Americans from employment constitute a finding of intentional discrimination?

The district judge found as a matter of fact that "neither the defendants nor their officials had engaged in employment practices with a willful or conscious purpose of excluding blacks and Mexican-Americans from employment." Since a prima facie case under Title VII clearly does not require proof of an improper purpose when a discriminatory impact is alleged, Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), this finding does not put defendants beyond the reach of Title VII.

The majority's decision that section 1981 similarly requires no proof of intentional discrimination is both unnecessary and unfortunate. The potential scope of section 1981 is exceptionally broad, going far beyond the Title VII realm of employment, and conceivably reaching virtually all private contractual arrangements. See Runyon v. McCrary, 427 U.S. 160, 168-71, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976). Since the relief available under Title VII is extensive enough to include the remedy approved by the majority in this case, ³ the wiser course would be to base the finding of liability on that statute and to wait for a more appropriate opportunity to consider the reaches of section 1981. Since the majority does choose to rely upon section 1981, however, I wish to make it clear that I cannot accept its easy conclusion that a prima facie case under that statute does not require proof of discriminatory intent.