Mixed Race Studies

The Mixed-Race Experience: Treatment of Racially Miscategorized Individuals under Title VII

Asian American Law Review
University of California
Volume 12 (2005)

Ken Nakasu Davison

This article argues that the static legal construction of race has the dangerous potential to permit cases of racially-based discrimination, thus circumventing its prohibition in the Civil Rights Act of 1964. The author challenges the classification of race as an “immutable characteristic,” demonstrating how some physical characteristic by which employers are legally allowed to discriminate are actually grounded in individuals’ racial backgrounds. Lastly, the author uses the miscategorization of mixed-race individuals as a case study of the dangers and limitations of race as an immutable characteristic, instead arguing for a comprehensive understanding of race as a social construct.

I. Introduction
 
 One observer writes, “Race may be America’s single most confounding problem, but the confounding problem about race is that few people seem to know what race is.”  This remark poignantly captures the irony of race – that is, race still remains an enigma even though we live in a society in which race determines so much of our lives. Indeed, notions of race, to a large extent, govern our public and private identities by associating certain characteristics with socially constructed racial classes. Some characteristics that identify and associate a person with a racial group are susceptible to change and are viewed by the law as the result of mutable social forces. Under Title VII, some courts have adopted a mutability requirement under which employers may permissibly discriminate based upon “socially-driven” characteristics, even if they are a part of a person’s racial, sexual or ethnic identity. Social characteristics such as one’s language, manner of speech, style of hair, attire and choice of friends are all factors that are commonly viewed as indicators of a person’s racial ancestry, but remain unprotected under a mutability analysis.

Foremost amongst indicators of race is phenotype, which is defined as the interaction of an individual’s gene structure with his or her surroundings to create physical appearance.  Phenotype indicators, such as hair texture, facial features, and skin color, are assumed to be based on biology and to provide an accurate indication of a person’s racial ancestry…

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