Thursday, March 11, 2010
Nancy Leong (starting at William & Mary Law this Fall) has just posted on SSRN her forthcoming piece in the American University Law Review: Judicial Erasure of Mixed-Race Discrimination.
Here is the abstract:
Jurisprudential remedies for racial discrimination presume the existence of clear categories. Indeed, Carolene Products’ classic allusion to “discrete and insular minorities” evokes racial groups that are readily identified and defined. Yet this reliance on categories renders antidiscrimination jurisprudence inhospitable to claims brought by individuals identified as multiracial and discriminated against on that basis. By addressing racial discrimination exclusively through categories, courts have lost sight of the fact that the purpose of antidiscrimination law is not to protect individuals from discrimination based on membership in recognized categories, but rather to protect individuals from the harms inflicted by racism.
This Article explores the tension between the reliance of race discrimination jurisprudence on discrete categories and the reality of discrimination against individuals whose racial identities transcend such categories. Overwhelming evidence reveals persistent animus directed at individuals perceived as racially mixed, yet courts virtually never recognize claims of discrimination brought by individuals identified as multiracial. After surveying the existing case law, this Article concludes that courts tend to reformulate claims of multiracial discrimination as claims of monoracial discrimination in order to comport with the established categorical framework of antidiscrimination jurisprudence.
Channeling plaintiffs into monoracial categories causes a variety of harms. It deprives plaintiffs of the opportunity to vindicate themselves in court based on the specific type of discrimination they suffered. It creates obstacles for plaintiffs identified and discriminated against as multiracial by distancing their claims from a body of precedent that recognizes only monoracial discrimination. And it entrenches the prevailing racial categories, impeding progress toward a more nuanced and fluid understanding of race.
To remedy the harms caused by these jurisprudential shortcomings, this Article recommends that antidiscrimination jurisprudence focus more explicitly on the perspective of the discriminator. Rather than implicitly requiring plaintiffs to show that they were treated worse than individuals outside their racial category, courts should simply require that plaintiffs show that they were treated worse than individuals whom the discriminator viewed as racially different. This approach is fully compatible with the relevant constitutional, statutory, and regulatory provisions, and would supplement rather than contradict existing category-based jurisprudence. Ultimately, it would render antidiscrimination law equally accessible for all individuals, thereby better fulfilling the antiracist goals underlying the antidiscrimination regime.
Sounds like a wonderful and innovative idea to an intractable problem within federal and state employment discrimination law. Let's hope members of the EEOC and judiciary become familiar with this piece.
And welcome to the Academy, Nancy!