The rise of the mixed-race population and its implications for our society has received attention in current discourse and media coverage. Some see it as a portent of the postracial world to come; others see it as just another challenge to which anti-discrimination law must adjust. Despite this new attention, racial mixing is not a new phenomenon by any measure. What have changed are the methods of categorization. By realizing this fact, we can repudiate the claim that increased declarations of mixed-race identity signal a major shift and instead focus on readjusting outdated legal schemes that were predicated on old methods of monoracial categorization. This Comment addresses the conflict between new categorization methods for mixed race in data gathering as well as the non-cognizable mixed-race- based claims in current Title VII doctrine. Mixed-race individuals face unique harms themselves, and Title VII’s refusal to acknowledge mixed race results in dismissal of claims. After addressing two similar proposals that do not go far enough to remedy harms, this Comment proposes taking the discretion of framing race from judges and placing it in the hands of plaintiffs. Under this Comment’s proposal, plaintiffs can frame race as they experience the discriminatory use of race—including the mixed- race classification—against them, while allowing employers to rebut the plaintiffs’ claimed race by showing that they perceived the plaintiffs’ race differently.
INTRODUCTION
Recently, I was confronted with an example of the ongoing cultural debate over the proper categorization of multiracial persons. While filling out an equal employment opportunity form for job interviews, I found myself at a loss with what to mark. The form employed a two-tier system. The first tier required a Yes-or-No answer to whether the respondent belonged in the ethnic category of Hispanic or Latino. If the respondent marked No, he or she could move to the second tier and mark: White; Black or African American; Asian, Native Hawaiian or Other Pacific Islander; Native American; or Two or More. Each racial category in the second tier included the parenthetical admonition, “Not Hispanic or Latino.” As someone who identifies as a mixed-race person and has seen many of these forms, I was accustomed to formulations that allowed either selection of only a single monoracial category, selection of all monoracial categories that apply, or, more recently, a separate choice for Two or More. Here was something that I had never seen. As one of partial Latino background, I was locked out from a choice to pick multiple races even though I also identify as being of Asian and white (non-Latino) descent.
In this example, the limited racial structure only affected my personal feelings and may have had a minor distorting impact on statistics that could be used to show or refute concerns about equal employment opportunity. But similarly fluctuating rules and discourse surrounding racial categorization also play out in settings with more tangible and immediate repercussions involving equally strange and varied rules. As this Comment shows, Title VII jurisprudence has operated in confusion regarding the definition and purpose of multiraciality, how multiraciality relates to and is differentiated from a biracial paradigm, and what various conceptions of identity mean for Title VII’s operation moving forward.
The majority of multiracial discourse in the United States has arisen in response to a perceived increase in interracial reproduction following the U.S. Supreme Court’s invalidation of anti-miscegenation laws in Loving v. Virginia as well as the increasing demand for a multiracial or mixed-race category, exemplified by the debate surrounding the 2000 Census. This discourse has generally been limited to addressing the benefits or detriments of creating a separate category in the census and other frameworks. However, while battling over the creation of a multiracial category, the debaters have generally overlooked the ramifications of such a category in areas of law where it has potential to further racial justice or hinder it.
Contrary to the assertions made in recent media coverage, racial mixing is not a new phenomenon, nor is the explicit categorization of mixed race as something separate. However, the periods of explicit categorization occurred briefly during times of de jure racial stigmatization; mixed-race categories were later absorbed into monoracial categories through the rise of the hypodescent rule, prompting elimination of mixed-race categorization. Over the past twenty years mixed-race identity has reemerged in general discourse and on the census in part because of the Multiracial Category Movement (MCM). Mixed-race identity has also received legal acceptance in some areas, even as Title VII jurisprudence has rejected it.
Despite the historical existence of racial mixing, most laws dealing with race are structured in a monoracial scheme. However, the ability to mark more than one category on the 2000 and 2010 Censuses and the subsequent effect on other federal programs via Directive 15, which seeks to unify categorization across the federal government, make it apparent that the monoracial conception of race is no longer consistent in law. Courts are increasingly confronted with the conundrum of applying laws predicated on a monoracial conception to a growing mixed-race population’s claims to multiracial identity, which are emboldened by federal, state, and private data-gathering techniques that explicitly use a multiracial category or allow selection of multiple categories. Courts attempting to apply legal rules created for a monoracial scheme to mixed-race individuals have been inconsistent and often appear to use the mixed-race identity of an individual or a population as a legal tool to adjust or bolster arguments. One area in which mixed-race identity has been rejected is Title VII employment discrimination. This rejection involves not only refusal to acknowledge mixed race as a separate protected class, but also hindrance of mixed-race individuals claiming disparate treatment on the basis of a monoracial category. Instead, they are conscripted into other monoracial protected classes, defeating their own monoracial disparate treatment claims as well as claims by others who are replaced by someone of mixed race.
Title VII rejection is problematic because mixed-race individuals face unique harms, and courts seem unwilling to apply consistency and resolve the tension between this identity and current doctrine. The harms at issue are not only harms of categorization that much of the literature focuses on but harms attached to the category. Harms of categorization are those that arise from simply being classified by a system of rules, separate from any benefit or injury based on that categorization, such as being perceived as belonging to or forced to identify with an ill-fitting category. Harms attached to the category are the negative actions such as refusal to hire someone of that category or violence against those in the category. Individuals who are socially racialized as mixed race or embrace that identity face discrimination from a unique animus independent from the harms based on monoracial identities. Under current law, these unique harms in the employment context cannot be remedied even when attempting to bootstrap a claim onto a color claim or a traditional race claim. Additionally, there are instances in which a mixed-race identity functions to obscure discrimination similar to certain aspects of intersectionality. Despite membership in multiple racial categories, a mixed-race complainant must plead a specific protected class to allege discrimination on the basis of race. Courts will often restructure the claims of those seeking a multiracial class into traditional monoracial terms. Further, some courts have held that a mixed-race individual can be replaced by a member of any racial group to which the mixed-race person owes some of his or her heritage. A mixed-race individual can even be used as a foil to another individual’s traditional monoracial claim because they can be conscripted into the same protected class as that of the traditional claimant—if they share any racial heritage despite possible vast disparities in phenotypical indications of race, self-identification, and social perception. This can be especially problematic where colorism claims’ cognizability is limited.
Even when framing a complaint under a monoracial category, mixed-race individuals face problems of standing. First, they are especially susceptible to being perceived as belonging to a racial group completely unrelated to their personal identification or ancestry, or as identifying with a particular racial group because of the assumed mutability of their identity. Thus, when courts require proof of membership in a class, mixed-race people are often barred from bringing claims when they are discriminated against for belonging to a race with which they do not identify. Second, those of mixed backgrounds are more susceptible to mutability attacks. For example, a defendant in an employment discrimination suit may point to a mutable characteristic as the reason for the plaintiff’s dismissal when that characteristic may be what triggered an individual’s racialization in the first place. This defense works because the majority of courts still accept race as an immutable characteristic even as mixed-race persons challenge that conception.
Thus far, multiracial discourse has focused on the concept of separate categorization in data gathering, while ignoring ongoing experiences, problems, and harms created by social perception as mixed race. Two scholars, however, have examined these harms and have proposed to combat them through extensions of current law. While these proposals are helpful, they focus narrowly on disparate treatment claims using employer intent and perception. Focusing on employer intent and perception may remove the barrier of establishing membership in a specific class to which a mixed-race individual may or may not belong, but it also reinforces the perpetrator model of discrimination, eschews disparate impact claims, maintains a significant burden on a claimant to establish a prima facie case by showing employer perception, and does not fully solve intersectional harms.
While these proposals allude to use of a separate mixed-race category if one is perceived as such, this Comment argues explicitly that a mixed-race category is required in order to remedy ongoing discrimination. At the same time, in order to effectively address all discriminatory harms, mixed-race persons should not be locked into such a category. In this way, this Comment’s proposal echoes the perception-based proposals, but instead of focusing on employer perception, it allows a plaintiff to frame race as he or she desires for the initial complaint. A showing of an inconsistent perception can then be used by a defending party to refute that framing. Allowing plaintiffs to frame perception will make disparate impact claims accessible and assuage concerns over creating a separate category and further fractioning minority groups. Additionally, this proposal places the burden of establishing employer perception on the party best able to access the necessary evidence, instead of on a complainant who in most cases does not reach the discovery phase.
Several objections are likely to arise from this approach, many of which have been articulated in the debate over the creation of an independent mixed-race category for data gathering. These include concerns about reification of biological race, creation of a new in-between class to further subordinate groups on the bottom, fractioning of minority groups that can lead to losses of political power, and concerns that such a category does not reflect accurate perceptions or experiences. Beyond those articulated about the category generally, there is also a risk of granting greater protection to mixed-race individuals when other subordinated classes may be more or at least equally in need of it. Further, given the inherently diverse nature of mixed-race individuals, the proposal stands to be at greater risk of essentialization objections. However, keeping exclusive control of the categorization out of the hands of any one party and focusing on unique animus towards mixed-race individuals for any claims based on the mixed-race class can eliminate or mitigate many of these concerns.
Part I of this Comment begins by examining the historical existence of racial mixing and the myth of racial purity in an effort to disarm claims that racial mixing signals a coming racial utopia. It then looks at the meandering progression of separate mixed-race categorization from its initial use, to its absorption into monoracial categories, and its current limited reemergence in legal doctrine. From this point, Part II examines the specific harms that mixed-race individuals face, focusing on those at play in employment discrimination. Part III examines two previously proposed interventions for these harms and finds them to be an incomplete remedy. Finally, Part IV proposes a flexible but separate categorization as an alternative that best addresses the failure of current anti-discrimination jurisprudence to remedy the harms faced by mixed-race people…