concurring in part and dissenting in part.
I concur with the result reached by the majority opinion insofar as it reverses and remands for new trial the issue of sex discrimination. I write to express my concern with two facets of that opinion.
First, although there were crude, boorish, and inexcusable racial remarks made by some of Moses’s fellow employees and superiors, I believe the record clearly reflects that race did not play a part in the decision to deny her training. I would not expect the plaintiff or her attorneys to concede that the lawsuit was argued on appeal as primarily a case of sex discrimination, but it is apparent to me from the facts adduced at trial that that is the situation. The racial slurs are inflammatory and, while I appreciate the reason for their introduction at the trial court level, it appears to me a superficial conclusion that the trial court determined that the Sheriff *195discriminated against Moses on training and transfer because of her race and sex because the trial court found that Moses “clearly proved certain unequal treatment (such as failure to obtain certain peace officer training while other whi[t]e males similarly situated received it).”
It is incredible to construe the decision of the district court as concluding that Moses had agreed to unequal treatment “within the terms of her contract” because she is black. The record is clear that the “agreement” was concerned only with the fact Moses is a woman and the Sheriff needed women for the female detention facility. Unfortunately, “race” and “sex” are used in tandem as if they were an inseparable “buzz word.”
Although the racial slurs justified Moses in alleging racial discrimination, I believe the trial illustrated that in this instance the claim of racial discrimination is a red herring which only blurs the real issue of sex discrimination. I would affirm the judgment insofar as it dismissed Moses’s suit for race discrimination.
Second, because this is our first opportunity to analyze our Human Rights Act, Chapter 14-02.4, N.D.C.C., I am concerned with the majority’s near-total reliance upon Federal case law construing Federal civil rights statutes. It is apparent there are substantial similarities, but if we are to be an echo of the Federal Act there would appear to be little need for our own statutes on the matter. The legislative history of HB 1440 of the 1983 legislative session, which created Chapter 14-02.4, reveals considerable ambivalence as to whether or not our Act was intended to be merely a carbon copy of the already existing Federal statutes or whether it was intended to be tailored to fit North Dakota’s particular needs. I suggest we adopt the latter posture.
My uneasiness is focused particularly on that portion of the majority opinion which is concerned with “burden shifting procedures.” Footnote 3 indicates that the trial court avoided the issue of applying the burden-shifting procedures as set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), a Federal Title VII decision, but the majority appears to adopt that procedure when it concludes that the Sheriff and the County “may be able to show a legitimate and nondiscriminatory reason for inhibiting Moses’s training and transfer, ,..”1 Although the issue of burden-shifting may not be as acute in this instance, the case having been tried once, consider, as an example, the situation in which a person of a minority race is one of 10 persons applying for a position. In view of this State’s homogeneous population that is most probable. Assume further that the person of racial minority, one of 10 applicants, does not receive the position. If I understand the majority opinion and its reliance on McDonnell Douglas correctly, the burden shifts to the employer to prove a nondiscriminatory reason for failure to hire the minority applicant if the position remains open. Without more, I do not believe we should so blithely import that result into our jurisprudence. If we are to adopt a Federal remedy for racial discrimination, I would suggest we use a test similar to that adopted by the United States Supreme Court in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), a case involving not a Federal civil rights statute but rather the evidentiary burden placed on a criminal defendant who claims that he has been denied equal protection through the State’s use of peremptory challenges to exclude members of his race from the jury. Justice Powell, speaking for the majority of the Court, determined that to sustain his burden the defendant must show that he is a member of a cognizable racial group and that the prosecutor has exercised peremptory challenges to remove from the jury members of the defendant’s race; that the defendant is entitled to rely on the fact that peremptory challenges constitute a jury-selection practice that permits those to *196discriminate who are of a mind to discriminate; and, finally, that the defendant must show that these facts “and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.” 476 U.S. at 96, 106 S.Ct. at 1723. The Court further observed that in deciding whether the defendant has made the requisite showing, “the trial court should consider all relevant circumstances. For example, a ‘pattern’ of strikes against black jurors included in the particular venire might give rise to an inference of discrimination.” Id. The Court concluded that once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors.
It appears to me that a plaintiff in an action alleging discrimination under our Human Rights Act should be required to show relevant circumstances that at least raise an inference that the defendant denied the minority applicant a position because of the race of that applicant. Without more, I do not believe the mere fact that a minority applicant did not receive the position would raise such an inference. A pattern, if it can be established, of failure to hire qualified minority applicants might, on the other hand, raise such an inference.
While I agree public policy dictates against waiver of an anti-discrimination law as a condition of employment, I would so conclude on the basis of our own jurisprudence, for example, Krein v. Marian Manor Nursing Home, 415 N.W.2d 793 (N.D.1987). I am dubious that we should impose on our State the heavy baggage of the nearly countless decisions which have construed the Federal civil rights laws. There may be rationales in those decisions which are applicable to our circumstances. However, where the reason for the Federal rationale does not exist in North Dakota there is no reason we should adopt it indiscriminately.
. The United States Supreme Court recognized that "the specification ... of the prima facie proof required from [the plaintiff] is not necessarily applicable in every respect to differing factual situations.” McDonnell Douglas Corp. v. Green, 411 U.S. at 802 n. 13, 93 S.Ct. at 1824 n. 13.