Mixed Race Studies

In contrast to the courts that openly struggle with fluid racial identities,  others deal with the problem by merely assigning a category to a fluid identity individual in order to make the prima facie case analysis a simpler proposition. In cases out of Virginia, Texas, and Minnesota, courts were presented with claims brought by a mixed race plaintiff but gave scant if any attention to this complex identity, preferring to simply assign the plaintiff a category that allowed for easy application of the McDonnell Douglas protected class paradigm. In these cases, the courts typically noted that the plaintiffs identified themselves as “multiracial,” or “biracial,” and then proceeded to describe them simply as “black” or “African American” for the remainder of the opinion. This was the case even where the alleged discrimination consisted of harassing statements that seemed to have been directed specifically at the plaintiff’s mixed race status.

Leora F. Eisenstadt, “Fluid Identity Discrimination,” American Business Law Journal, Volume 52, Issue 4, Winter 2015, 817. http://dx.doi.org/10.1111/ablj.12056.

Fluid Identity Discrimination

American Business Law Journal
Volume 52, Issue 4, Winter 2015
pages 789–857
DOI: 10.1111/ablj.12056

Leora F. Eisenstadt, Assistant Professor (Research)
Fox School of Business and Management
Temple University, Philadelphia, Pennsylvania

According to the most recent Census, the multiracial population of children has increased dramatically in the last decade, and the number of people of any age who identify as both white and black more than doubled in that time. In addition, there is a growing number of increasingly vocal transgender individuals who cannot be defined by existing sexual categories. Nonetheless, most courts have retained a categorical approach to Title VII that demands membership in a protected class even as American society becomes increasingly mixed and less conducive to simple categorization. In light of this new reality, this article considers the jurisprudence and scholarship on multiracial and transgender plaintiffs and argues that scholars and courts in both areas are dealing with discrimination against these increasingly visible individuals in an overly narrow way, leading to incomplete or unsatisfactory solutions. Rather than approach issues of racial identity and sexual identity separately, this article contends that these issues are symptomatic of a larger problem with Title VII, namely, an enduring attempt to fit increasingly amorphous identities into a strict categorical structure that no longer matches the reality of American society. Fluid Identity Discrimination proposes a rethinking of the protected class paradigm in light of a changed American populace with the goal of providing clarity and better alignment between law and social reality.

Read the entire article here.