Thursday, September 20, 2012

Greene on Categorical Discrimination

Doris-Wendy-Green-newWendy Greene (Cumberland) has posted on SSRN her new article, Categorical Discrimination. From the abstract:

Fairly recently, the Pew Research Center conducted a survey of 3000 people in which 18 percent of the respondents stated that they believed President Barack Obama to be Muslim even though repeatedly he has expressly declared that he is Christian. This misclassification of President Obama’s religious identity underscores a common occurrence arising in contemporary workplaces: misperceptions of an employee’s religious, ethnic, and racial identity. As a result of these misperceptions, employees are alleging that they have suffered what this Article deems “categorical discrimination” — invidious, differential treatment — on the basis of religion, race, ethnicity and color in violation of Title VII of the 1964 Civil Rights Act. However, this Article exposes an alarming, inconspicuous movement within antidiscrimination law: a band of federal district courts are denying such individuals Title VII protection. Per these courts, a plaintiff, for example, who self-identifies as Christian, yet who is misperceived as Muslim and is harassed or terminated because of her employer’s misperception and related animus, cannot assert an actionable discrimination claim under Title VII. Though Title VII expressly bars discrimination on the basis of religion among other traits, courts have held that such a plaintiff’s claim of “categorical discrimination” is beyond Title VII’s scope. Accordingly, Title VII protection would only be extended if she is “actually” Muslim or if she brings forth allegations of invidious, differential treatment based upon her “actual” Christian identity. This Article delineates that, in so holding, courts have imposed an onerous and puzzling “actuality requirement” in Title VII intentional discrimination cases which engenders the unfathomable: plaintiffs suffering invidious, differential treatment animated by either their self-ascribed or misperceived protected status will be denied statutory protection against and relief for discrimination if they fail to “prove” their “actual” religious, color, ethnic, racial or gender identity when challenged. 

With Title VII’s golden anniversary on the horizon, “Categorical Discrimination” is of great import, as it illustrates that courts’ imposition of an “actuality requirement” denotes the birth of an unorthodox interpretation of Title VII’s reach and meaning nearly 50 years after its enactment — an interpretative methodology this piece is first to describe as “anti-anticlassificationist.” This Article investigates the express as well underlying justifications for courts' idiosyncratic actuality requirement. Moreover, it highlights two unexamined, yet critically important implications of courts’ anti-anticlassificationist interpretation of Title VII: the emergence of a minimalist “actuality defense” for employers to appropriate and the reemergence of identity determination litigation in all intentional discrimination cases. "Categorical Discrimination" illuminates that courts’ excessively restrictive interpretation and attendant actuality requirement, indeed, resuscitate age-old trials of racial determination. Accordingly, this Article aims to quell the traction of courts’ actuality requirement in all cases of categorical discrimination and in doing so, breaks important ground by proffering intra-statutory support for the proposition that a showing of actuality is not required for Title VII plaintiffs to benefit from statutory protection. Notably, this Article also maintains that the Supreme Court’s recent opinion in Thompson v. North American Stainless, LP postulates a more cohesive conceptualization of Title VII protection for all individuals alleging categorical discrimination at the hands of covered employers on the basis of race, color, sex, national origin, and religion. Regardless of whether a plaintiff claims that the invidious, differential treatment suffered derives from her “actual” or “mistaken” religious, gender, ethnic, racial or color identity, Title VII protection and potential relief should be afforded. Either framing of an intentional discrimination claim unequivocally “falls within the zone of interests” Title VII seeks to protect. Moreover, a plaintiff under either circumstance is an “intended victim” of an employer’s invidious, differential treatment, and thus, is a “person aggrieved” by an employer’s alleged categorical discrimination on the basis of Title VII’s proscribed characteristics.

Timely and interesting!


Commentary, Employment Discrimination, Scholarship | Permalink

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