concurring.
I concur in the decision to remand this case to the district court to determine whether appellant would have received the promotion but for the employer’s discrimination in the selection process.
I agree with most of the analysis set forth in the majority opinion. I agree that proof of unlawful discrimination requires only proof that race was “a discernible factor” in the employment decision, a finding which would ordinarily entitle the plaintiff to declaratory relief, partial attorney’s fees and prospective injunctive relief, and that, following proof of unlawful discrimination, the burden of persuasion and the burden of producing evidence on the issue of the scope of available retroactive relief are properly shifted to the.employer. “The burden of showing that proven discrimination did not cause a plaintiff’s rejection is properly placed on the defendant-employer because its unlawful acts have made it difficult to determine what would have transpired if all parties had acted properly.” League of United Latin American Citizens v. City of Salinas Fire Department, 654 F.2d 557, 559 (9th Cir.1981), citing Day v. Mathews, 530 F.2d 1083, 1086 (D.C.Cir.1976) (per curiam).
However, I do not agree with the preponderance of the evidence standard of proof and would instead require the employer to prove by clear and convincing evidence that appellant would not have been promoted in the absence of discrimination. See, e.g., King v. Trans World Airlines, Inc., 738 F.2d 255, 259 (8th Cir.1984).
The requirement of clear and convincing proof ... furthers Title VII’s deterrent purpose. By making it more difficult for employers to defeat successful plaintiffs’ claims to retroactive relief, the higher standard of proof may well discourage unlawful conduct by employers. In addition, the higher standard of proof is justified by the consideration that the employer is a wrongdoer whose unlawful conduct has made it difficult for the plaintiff to show what would have occurred in the absence of that conduct.
Toney v. Block, 705 F.2d 1364, 1373 (D.C.Cir.1983) (Tamm, J., concurring) (citations omitted).
*1330I would remand the case to the district court to determine whether the employer has shown by clear and convincing evidence that appellant would not have been promoted even in the absence of unlawful discrimination.