Perceived-as plaintiffs: expanding Title VII coverage to discrimination based on erroneous perception: "as with the joy of beauty, the ugliness of bias can be in the eye of the beholder."

Author:Aronson, Elizabeth E.

CONTENTS INTRODUCTION I. BACKGROUND OF TITLE VII AND PERCEIVED-AS CLAIMS A. Background of Title VII Protection B. Current Judicial Recognition of Perceived-as Claims 1. Courts that Recognize Perceived-As Claims 2. Courts that Do Not Recognize Perceived-As Claims II. LACKING PERSUASION: FUTURE PERCEIVED-AS CASES SHOULD NOT FOLLOW COURTS THAT IMPOSE AN ACTUALITY REQUIREMENT III. PERCEIVED-AS CLAIMS UNDER EEOC GUIDANCE & ADA ANALYSIS A. No Doubt: The EEOC's Interpretation of Title VII is Entitled to Deference B. Striking Similarity: Title VII Compared to the ADA IV. DECEPTIVELY COMPLEX: WHY DISCRIMINATION BASED ON APPEARANCE AND BIAS SHOULD BE PROTECTED UNDER TITLE VII A. The Difficulty of Defining and Proving Identity of a Protected Class 1. What is Identity? The Social Construct of Race, Color, Religion, and National Origin 2. How to Prove Identity B. Recognizing Perceived-As Claims Ensures that Employers who Engage in Unlawful Discrimination Will Not Be Shielded From Liability 1. "Wrong" Discrimination Prohibited under Title VII 2. No More Than an Unsubstantiated Suspicion: EEOC v. A & F V. Application of Perceived-As Discrimination Claims CONCLUSION INTRODUCTION

Robert Smith, a practicing Catholic, worked for Specialty Pool for a month when discrimination against his "perceived-as" Jewish identity began. (2) His manager erroneously believed Smith was a "Jew" and did not like him as result. (3) Smith was referred to multiple times daily as "Hebrew," "Jew Boy," and "Kike." (4) The manager consistently raised a Nazi salute in front of him, once commenting that "Hitler did not do a good enough job" because Smith was still alive. (5) On its face, this appears to be a straightforward example of illegal employment discrimination. However, depending on the court, the case could have been dismissed at the outset because Smith was not actually Jewish. That is, Smith was not discriminated against based on his actual religion. Rather, Smith was discriminated against because he was "perceived as" being Jewish.

This Note argues that Title VII of the Civil Rights Act of 1964 (Title VII) covers discrimination where an individual is perceived as being a certain race or ethnicity, whether or not that individual is actually a member of that class. Further, the courts that have allowed for such claims to proceed have more persuasive reasoning, given the statutory interpretation, congressional intent, and contemporary understanding of identity.

Part I briefly summarizes the background of Title VII and recent perceived-as cases that have surfaced. Part II explains why courts that confront such claims should not follow the reasoning of prior courts that have imposed an actuality requirement.

Part III will explore how perceived-as discrimination claims should be analyzed under Title VII. First, the Equal Employment Opportunity Commission (EEOC) has promulgated definitions and regulations that recognize perceived-as discrimination claims under Title VII. Next, this Note compares Title VII to the Americans with Disabilities Act (ADA) and explains why Title VII perception claims should be analyzed like disability-perception claims. Part IV argues that the inherent complexity and social construct of identity justifies a shift in Title VII analysis from an individual's actual identity to a focus on the employer's discriminatory actions. Finally, Part V recommends how to apply perceived-as analysis to future employment-discrimination claims.


    Title VII was enacted to prohibit employment discrimination on the basis of "race, color, religion, sex, or national origin." (6) The purpose of Title VII is to eliminate these invidious forms of discrimination in the workplace and give redress to those who experience discrimination on the basis of their membership in those protected classes. (7) Title VII protection often focuses on "perception and appearance" for employment-discrimination claims. (8)

    1. Background of Title VII Protection

      It is unlawful for an employer to refuse to hire or to discriminate against individuals on the basis of their protected class membership. (9) Title VII prohibits employers from (1) discriminating against an individual (2) because of (3) such individuals' religion, race, sex, national origin, or color. (10) A prima facie disparate-treatment case first requires plaintiffs to demonstrate that they "belong to a protected class." (11) Plaintiffs who prove that they are "member[s] of a protected class" also must prove that they were subject to discrimination based on their membership in the protected class. (12)

      It is significant for the advancement of perceived-as claims that Title VII does not define the protected classes covered under the statute. One could conclude that Title VIPs protected classes are therefore static and universally have the same meaning, and thus do not need to be defined. However, an alternative possibility for the lack of a definition could be that identities of protected classes are complex, and there is no need for a precise and codified legal definition. Nonetheless, issues of what races and national origins should be protected, what "color" means, and what religious practices are covered have arisen under Title VII. (13)

      Unlike other federal antidiscrimination statutes, (14) Title VII does not explicitly define the class of people protected. (15) Since the statute lacks definitions, courts and litigants sometimes turn to other sources to determine applicability, such as agency regulations and definitions from similar laws. (16) When controversies do arise regarding whether a plaintiff is a member of a protected class, courts generally apply inclusive definitions of race, national origin, color, and religion. For example, the Supreme Court held that white employees and applicants are protected under Title VII, (17) arguably contrary to the legislative intent. (18)

      Since defining a person's race can be deceptively complex, (19) it may be helpful to compare similar antidiscrimination statutes to determine the definition of race under federal law. (20) These statutes define race to include identities usually thought of as national origin, such as Hispanic, Indian, or Arab. (21) The absence of a racial definition in Title VII may demonstrate Congress's awareness of the difficulty of providing and distinguishing definitions of race and identity in statutory language for inclusive protection. (22)

      Color, another protected class under Title VII, is also not defined. (23) Color discrimination is not a common claim under Title VII. (24) However, color discrimination claims may be appropriate for Plaintiffs who have a "mixture of races and ancestral national origins." (25) Some courts go so far as to hold that color and race claims are indistinguishable because of the nuanced relationship between the two protected classes. (26)

      National origin also has no statutory definition under Title VII. (27) The Supreme Court has held that national origin refers to plaintiffs' or their ancestors' place of birth. (28) The EEOC considers national origin as covering places of origin, rather than countries of origin under Title VII. (29) This expands protection for individuals whose ethnic or national identity does not fit neatly into a country of origin. As a result, Title VII's national origin category includes identities not typically considered "national," such as Cajun, Gypsy, and Native American. (30) Title VII also prohibits discrimination for nonminority national origins, regardless of the historical discrimination or disadvantage of the group. (31)

      The larger point is that courts interpret Title VIII to broadly proscribes employment policies "which operate to disadvantage the employment opportunities of any group ... including Caucasians." (32)

      Religion is the only defined protected class under Title VII. (33) Religion includes "all aspects of religious observance and practice, as well as belief." (34) This broad definition protects individuals belonging to uncommon religions, atheists, and practices not necessarily mandated by a religious authority. (35) There are two types of religious discrimination prohibited under Title VII. (36) First, it is unlawful for an employer to fail to reasonably accommodate a religious practice or belief. (37) Second, Title VII protects employees and applicants against discrimination based on a religious affiliation. (38) This second cause of action acknowledges that religion may sometimes be more than a practice or ritual, maybe playing a larger role for individuals, such as ethnic or otherwise fundamental identity. (39)

    2. Current Judicial Recognition of Perceived-as Claims

      The Supreme Court and federal circuit courts of appeals have yet to answer whether a perceived-as discrimination claim is cognizable under Title VII. (40) However, the Ninth Circuit held that perceived-as claims are covered under another federal remedial statute, which also does not explicitly provide for these claims, because mistaken perception "does not make that discrimination or its resulting injury less direct." (41) Similarly, the Third Circuit assumed that a perceived-as plaintiff would be protected under Title VII. (42)

      In 1994, the first district court to consider a perceived-as claim held that perceived-as discrimination is prohibited under Title VII. (43) In 2004, another district court held that perceived-as claims are not cognizable under Title VII as a matter of law and dismissed the claim on summary judgment. (44) Some courts have cited to Butler v. Potter (45) for this same proposition. (46) However, many other district courts have found Butler's reasoning unpersuasive and held that Title VII does prohibit perceived-as discrimination. (47)

      1. Courts that Recognize Perceived-As Claims

        Two recent district court cases that considered perceived-as claims held that Title VII prohibits this type of discrimination. (48) These cases, along with others, focus...

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