Colorism among South Asians: Title VII and skin tone discrimination. (Global Perspectives on Colorism)

• Published date: 22 December 2015
• Author: Banks, Taunya Lovell
• Date: 22 December 2015

INTRODUCTION

In 2013 Nina Davuluri, an Asian Indian from Syracuse, NY, became the first South Asian-American Miss America. (1) Her selection prompted racist messages on Twitter "mixing up Indian, Indian-American, Arab, Muslim, and everything in between." (2) The racist tweets are not simply a commentary on racial "progress" in post-civil rights America but, more importantly from a legal perspective, illustrate the popularly held misunderstandings of South Asian identity. This confusion about South Asians is reflected in some employment discrimination cases.

Asian Indians are often subsumed into a category called South Asians. (3) The term "South Asian" normally encompasses Dalits, Christians, Muslims, Sikhs, and other Indian minorities who represent a larger portion of the Indian population in the United States than they do in India. (4) The term "South Asian" is used throughout this article in the broadest sense, except where it is important to distinguish various subgroups.

The largely congratulatory comments from South Asian commentators about Davuluri's win were insightful in another troubling way. While reveling in the significance of her win, bloggers also commented on her skin tone, characterizing the new Miss America as dark brown. (5) One Asian Indian American commentator sarcastically wrote, "That gorgeous chocolate may play as exotic in the West, but in India, we prefer our beauty queens strictly vanilla--preferably accessorised with blue contact lenses." (6) Thus it was not simply Davuluri's win as Miss America that was deemed significant, it was her skin tone as well. A commentator added that Davuluri would have never won the Miss Indian America USA title because she is "too dark." (7) Still others added that in India someone with her skin tone would never be a contestant in a beauty contest, much less the winner. (8)

These comments about Davuluri's skin tone within the Asian Indian American community add to our understanding of how different non-white communities process skin tone. To me her skin tone seemed medium brown, but this difference in perspective is unsurprising. As I have written before, skin tone differences are relative. (9) Further, when Davuluri's skin tone is compared with the nine other non-white Miss Americas from 1984-2014, with two exceptions, her skin tone looks much the same as the other winners. (10)

Early discussions of colorism by legal scholars focus on how the practice impacts black Americans or other persons with some African ancestry. (11) Yet the comments from South Asians about Davuluri's skin tone sound surprisingly similar to conventional American notions of colorism practices. But in Miss Davuluri's case, the comments seems counter intuitive. Instead of selecting a light-skinned woman, a cultural preference in the United States as well as India, a brown-skinned Asian Indian woman won. South Asian commentators explain Davuluri's selection as a preference by the dominant American culture for darker more "exotic" South Asians. Thus skin tone preferences impacting South Asians operate within and outside of their communities. What is not clear is whether intra-group or inter-group skin tone preferences involving South Asians carry over to workplace decisions.

This inquiry is important because South Asians comprise a significant portion of this country's growing non-white population. There are more than three million South Asians in the United States. (12) More specifically, ethnic Asian Indians represent the third-largest immigrant group by country of origin in the country today. (13)

Title VII of the Civil Rights Act of 196414 and the older civil rights statute 42 U.S.C. [section] 1981 (15) prohibit discrimination based on "color," but neither statute defines the term. (16) A little more than fifteen years ago I argued that skin tone discrimination, whether intra-racial or inter-racial, constitutes a form of race-based discrimination that tends to disadvantage individuals with dark skin tones. (17) With few exceptions, more recent discussions of this topic among legal scholars continue to focus almost exclusively on black Americans. (18) Thus, this Article asks whether colorism among or between racialized groups impacts immigrants from South Asia and their American-born offspring in the same way studies suggest that skin tone discrimination adversely impacts black Americans and Latinos in the workplace. (19)

In exploring this question, I examined fifty-one employment discrimination cases involving South Asians decided between 1981 and 2014. This Article also explores the difficulties South Asian plaintiffs face when raising a Title VII color employment discrimination claim. (20) South Asian plaintiffs are more likely to use Title VII rather than the older Section 1981 law because the latter does not cover discrimination based on national origin and claims filed by South Asians sometimes conflate race and national origin claims.

The remaining article is divided into three sections. The first section briefly examines the influx of South Asians, specifically Asian Indians, in the United States since the mid-1960s. It also examines the colorism phenomena in India and the South Asian diaspora including the United States. The second section examines employment discrimination cases brought by South Asians, especially Asian Indians, and their invocation of skin tone in many of these cases. This section starts with a reexamination of Ali v. Bank of Pakistan, perhaps the earliest colorism case involving a South Asian. (21) The 1981 federal district court opinion in Ali suggests that intra-group colorism claims involving South Asians are not cognizable under Title VII because they fall outside the "American experience." (22) Thus, I examine the cases that follow Ali to determine whether and how South Asian plaintiffs invoke "color" in Title VII employment discrimination cases. The final section of this article contains some suggestions for both litigators and judges involved in workplace discrimination cases brought by South Asians.

II. ASIAN INDIANS IN AMERICA

A. Growth in the Asian Indian Community

Asian Indians comprise the largest group of South Asians in the United States. There are more than a million immigrants from India in the United States. (23) Most Asian Indians entered the country after 1965 when immigration and naturalization restrictions on non-white immigrants eased with passage of the Immigration and Nationality Act Amendments of 1965. (24) Between 2000 and 2005 the ethnic Asian Indian population in the United States, immigrant and native born, rose to 2.3 million. (25)

By 2011 there were nearly 1.9 million Asian Indian immigrants living in the United States, representing the third-largest immigrant group by country of origin. (26) Asian Indian immigrants in 2011 were better educated, more likely to have strong English language skills and arrive on employment-based visas, and were less likely to live below the federal poverty line than the overall foreign-born population. (27) The vast majority of children in Asian Indian immigrant families are born in the United States. (28)

Given the growing number of ethnic Indians and other South Asians in the United States and the persistence of race-based workplace discrimination, it is likely that courts will see more claims brought by members of these communities. One issue is whether the courts fully understand the nuances of some claims by South Asians that have cultural roots and what litigants need to do to better inform the courts of their claims. Specifically, given the presence of skin tone bias within South Asian communities, one question is how courts will respond to these claims. The next section provides some background on colorism practices in India and within the larger South Asian diaspora.

B. Colorism in India

The origin of colorism practices in India and other parts of South Asia is contested. (29) Colorism practices within the Asian Indian community are "not limited to one particularly [s/c] faith, tradition or ethnicity." (30) Like other societies, there seems to be a gender component that disproportionately impacts Asian Indian women's perceived marriageability. (31) The popularity of skin lightening products for women in contemporary India (and elsewhere) reflects the connection between concepts of beauty and marriageability for women. (32) On the surface this preference for marriageable Asian Indian women with light skin tones seems to mirror historical marriage patterns of women in the black American community. (33) But it is unclear whether there is a racial component to Asian Indians' preference for light-skinned women.

Some studies of the light-skinned phenomena among Asian Indians suggest that there is no racial connection. These scholars argue that Asian women are not trying to become white racially rather they are trying to conform to their society's notion of feminine beauty. (34) Significantly, researchers also found that the preference for Asian women with light skin tones may be influenced by American Eurocentric notions of beauty when these Asians immigrate to the United States. (35)

South Asians were not included in these studies of Asian women, but a few studies of South Asians made similar findings. For example, Roksana Badruddoja Rahman examined the role of skin tone in the New Jersey Hindu Indian immigrant community. (36) She focused on Hindu Indian women's concept of beauty and the significance of skin tone as a status marker in the marriage market. (37)

 Rahman argues that the politics and implications of skin color in
                 Indian community and among black Americans are extraordinarily
                 similar, and the strict juxtaposition of black and white works well
                 in understanding the implications of skin color and the definition
                 of beauty among black Americans, Indians in India, and Indians
                 living in the U.S. (38)
                

One commentator speculated that although Rahman's subjects were "'Hindu...