Fluid Identity Discrimination

• Author: Leora F. Eisenstadt
• Published date: 01 December 2015
• DOI: http://doi.org/10.1111/ablj.12056
• Date: 01 December 2015

Fluid Identity Discrimination

Leora F. Eisenstadt*

INTRODUCTION

In its fiftieth year, it is no secret that the Civil Rights Act of 1964,

1

and,

in particular, Title VII,

2

the law providing for equal employment oppor-

tunity, have not been wholly effective in eradicating discrimination in

the workplace. Among scholars, critiques of Title VII and its resulting

jurisprudence are plentiful and focus largely on the complexity of the

proof structures and the increasingly more nuanced presentation of dis-

crimination in the workplace.

3

There is, however, another equally

*Assistant Professor, Department of Legal Studies, Fox School of Business, Temple University.

†This article greatly benefited from discussions at the 2014 ABLJ Invited Scholars Collo-

quium and the Title VII: Fifty Years Later Colloquium sponsored and hosted by the Ross

School of Business at the University of Michigan, with additional support from the War-

rington College of Business at the University of Florida. I am particularly grateful to Ann

Olazabal, Stephanie Green, and D. Wendy Greene for their detailed comments, and to

Brishen Rogers and Jamie Prenkert for their insight and advice. Finally, thank you to

Elyssa Geschwind for research assistance.

1

Pub. L. No. 88-352, 78 Stat. 241 (codified as amended in scattered sections of 2 U.S.C.,

28 U.S.C., & 42 U.S.C.).

2

42 U.S.C. § 2000e–2000e-17 (2000).

3

See generally Sheila R. Foster, Causation in Antidiscrimination Law: Beyond Intent Versus Impact,

41 HOUS.L.REV. 1469 (2005) (discussing how cognitive biases and normative expectations

interfere with both the intentional discrimination and disparate impact frameworks); Linda

Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination

and Equal Employment Opportunity,47S

TAN.L.REV. 1161 (1995) (arguing that bias may be

both unintentional and unconscious); Gregory Mitchell & Philip E. Tetlock, Antidiscrimina-

tion Law and the Perils of Mindreading,67O

HIO ST. L.J. 1023 (2006) (arguing against use of

implicit-prejudice research in employment discrimination law); Michael Selmi, Response to

Professor Wax: Discrimination as Accident: Old Whine, New Bottle,74I

ND. L.J. 1233 (1999) (dis-

cussing the significance of, and potential remedies for, unconscious discrimination); Sandra

F. Sperino, Rethinking Discrimination Law, 110 MICH.L.REV. 69 (2011) (arguing that actual

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American Business Law Journal V

C2015 Academy of Legal Studies in Business

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compelling development in employment discrimination—the changing

nature of social identity and its impact on Title VII’s protections. While

the focus of criticism has been on changes in discriminators (their con-

scious or unconscious intent and the outward or hidden forms of dis-

criminatory behavior),

4

there has been relatively little scholarly attention

to the dramatic demographic and societal changes that have affected the

“social identity” of victims of discrimination and that alter the way in

which discrimination is performed and experienced.

5

The dramatic changes in this area are attributable, in part, to the

very notion of self-identification and personal experience of identity.

In the past, one’s race, ethnicity, religion, and gender were thought to

be easily identifiable by outsiders or, at the very least, easily expressed

as membership in one specific category or group.

6

In the last several

decades, these strongly ingrained notions have begun to change. As

growing numbers of Americans identify as multiracial, multiethnic,

postracial, transgender, gender nonconforming, and bi (or multi) reli-

gious—what this article calls “fluid identities”—it is increasingly diffi-

cult to profess with confidence “what” a person is absent his or her

input. More importantly, the number of individuals who refuse to

identify in a single category is increasing exponentially.

7

Individuals

with fluid racial identities include those whose appearance does not

suggest easy racial categorization; those who elect their racial identi-

ties to maximize opportunities;

8

those who project or cover different

discrimination occurs in ways that currently recognized frameworks are incapable of

encompassing); Amy L. Wax, Discrimination as Accident,74I

ND. L.J. 1129 (1999) (question-

ing whether antidiscrimination law should cover unconscious bias).

4

See generally Foster, supra note 3 (critiquing the discriminatory intent and disparate impact

tests as the framework for considering discrimination cases); Krieger, supra note 3 (discus-

sing prevalence of unconscious bias); Sperino, supra note 3 (discussing insufficiency of existing

Title VII rubrics).

5

The term “social identity” in this article is intended to refer to an individual’s e xperience and

self-identificationas well as others’ perceptions of his or herrace, ethnicity, religion,and gender.

6

See infra notes 45–50 and accompanying text (discussing the U.S. Census’s approach to

visual identification of participants’ racial identity).

7

See Susan Saulny, Census Data Presents Rise in Multiracial Population of Youths, N.Y. TIMES,

Mar. 25, 2011, at A3.

8

See generally Camille Gear Rich, Elective Race: Recognizing Race Discrimination in the Era of

Racial Self-Identification, 102 GEO. L.J. 1501, 1502–06 (2014) (arguing that “we are

790 Vol. 52 / American Business Law Journal

aspects of their racial/ethnic identities based on context;

9

those who

self-identify as racially “mixed;” and, those who are perceived simply

as “other” by their co-workers and superiors. Individuals with fluid

gender identities include those who identify as transgender; individu-

als who are transitioning from their birth sex to another sex; individ-

ualsbornwithintersexcharacteristics; cross-dressers; and, individuals

who are gender nonconforming (those who by appearance or behav-

ior defy traditional gender categorization).

10

Despite the overall growth and increased visibility of individuals

with complex, layered, or fluid identities, legal protections have failed

to keep up with these changes. The courts that have dealt with fluid

identity plaintiffs generally appear confused about Title VII’s applica-

tion to these individuals or are unwilling to extend protection under

traditional race and sex discrimination theories.

11

Such confusion, by

nature, has an overall negative impact on employers and employees,

since a lack of clarity in the courts may lead to more difficult employ-

ment decisions, an inability to effectively train management and

currently living in the era of ‘elective race’—a time when antidiscrimination law is being

asked to attend to the dignity concerns of individuals as they attempt to control the terms

on which their bodies are assigned racial meaning”).

9

See generally KENJI YOSHINO,COVERING:THE HIDDEN ASSAULT ON OUR CIVIL RIGHTS (2006)

(describing the act of “covering” or downplaying identity traits in order to fit into the

mainstream as both a social reality and a civil rights problem).

10

See GLAAD Media Reference Guide—Transgender Issues, http://www.glaad.org/reference/

transgender (last visited Mar. 5, 2015). The focus of this article is on the increasingly fluid

nature of race and sex. With regard to the other identity traits Title VII covers, it is

important to note that national origin (or ethnicity) has not been subjected to the demands

of pure categorization that race and sex have, perhaps because of an innate understanding

that a person can have multiple ethnic origins. In addition, religion has always been

acknowledged as fluid because of the inherent ability to change religions during the

course of one’s life. See Schroer v. Billington, 577 F. Supp. 2d 293, 306-07 (D. D.C. 2008)

(“No court would take seriously the notion that ‘converts’ are not covered by the statute.

Discrimination ‘because of religion’ easily encompasses discrimination because of a change

of religion.”). Finally, “color” as a basis for discrimination differs from the other identity

characteristics in Title VII because it describes a specific trait as opposed to an identity

that appears through multiple traits. As a result, courts have not demanded that a plaintiff

choose a “color” with which to identity, and, thus, have avoided the problems that victims

of race and sex discrimination face when they self-identify in a fluid way. See generally Trina

Jones, Shades of Brown: The Law of Skin Color,49D

UKE L.J. 1487, 1554–56 (2000).

11

See infra Part II.

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