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Dear Friends,
My apologies for the late delivery of this draft; my article is at a very early stage.
Please bear this in mind as you read the draft, as the ideas explored here may not be
outlined as elegantly or articulately as I hope they will be in the final version of the piece.
Also, you may notice that Part III of the piece has not been included. I am hoping to use
our conversation to think through some of the ideas I intend to explore in Part III.
Thanks again. I look forward to hearing your questions and any reading suggestions you
can offer as I attempt to flesh out the implications of “elective race.”
Elective Race: Recognizing Race Discrimination in the Era of Racial Self
Identification
By Camille Gear Rich
Our story begins with the curious case of Eric Longmire, a biracial man who
seemingly elected to live his life at work as a white person.1 As luck would have it,
things ―turned south‖ for Longmire at work, and he turned to the court for relief, alleging
that he had been subject to race discrimination. Specifically, Longmire brought a
disparate treatment claim alleging that he was systematically undercompensated once he
disclosed to his employer that he was a biracial man of African American ancestry.
Additionally, he brought a racial privacy claim alleging that his employer threatened to
disclose the ―secret‖ of Longmire‘s mixed racial background to his co-workers, in order
to coerce Longmire into assisting the employer in an unrelated legal proceeding. The
court appeared plainly befuddled when presented with the facts of Longmire‘s case, for
the account he provided did not comport with the traditional account of racial passing.2
For Longmire admitted that he told his employer of his mixed racial background at the
start of his employment. The court questioned, why would his employer hire him if the
employer intended to discriminate against African Americans or multiracials?
Additionally, the court noted, Longmire had publicly identified as African American in
other contexts and had disclosed his racial background to certain minority workers in his
current workplace. How then could he have any ―racial privacy‖ interest in this
information about his racial background, if he was so open about the facts of his racial
identity?
The court‘s concerns about Longmire‘s allegations foreshadowed the dismissal of
his case, but for race scholars the story lingers in the imagination. For some the case is
significant because it divides us into our respective camps in the ongoing debate about
1 Longmire v.Wyser Pratt, 2007 WL 2584662 (S.D.N.Y. September 06, 2007) Longmire brought his
employment discrimination claim under the state law parallel to Title VII, New York‘s human rights
statute. 2 For a traditional account of racial passing see, Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV.
1709, 1710-13 (1993) (recounting story of her grandmother‘s decision to pass as white to her employer and
co-workers in order to secure a job as a shop girl in the 1930s in a white department store). Harris
compellingly recounts the risk black individuals faced in passing, and the world of economic opportunities
available to them by engaging in this risky strategy of racial deception.
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the descriptive and analytic power of post racialism. Supporters of the post racial
account argue that we have transcended race.3 They would concede that Longmire‘s
claims would have been valid had they been raised sixty or seventy years ago, in a time
when racial boundaries were rigidly policed and men and women validly believed that
their economic, social and educational opportunities were constrained by the color line.4
But this kind of racial deception is wholly unnecessary today post racialists would argue.
Longmire‘s claim should fail, in their view, because he clearly felt free to disclose his
race to his employer, and he only decided to cry race discrimination when he grew
dissatisfied with his career progress. Furthermore, they would explain, Longmire‘s
strange decision to selectively disclose the facts of his racial identity to his coworkers
reveals nothing more than his own pathological insecurities about race. Certainly, the
employer‘s attempt to exploit Longmire‘s racial anxiety was morally wrong, they would
explain, but the employer‘s threat tells sheds no light on the validity of the post racial
account nor the true state of race relations in Longmire‘s workplace.
Traditionalists, by contrast— those who reject the post racial account, would
argue that Longmire‘s tale is not so strange at all. Instead, his claims establish that the
traditional account of race discrimination has continuing validity.5 For the traditional
account of race discrimination explains that Longmire‘s employer hired him as a minority
worker, with the expectation of undercompensating him. Additionally, the traditional
account of race discrimination would take the employer‘s threat to disclose Longmire‘s
racial secret quite seriously, as this threat reveals that both Longmire and his employer
understood that whiteness still carries significant social and material benefits in the
workplace.
Certainly Longmire provides rich fodder for participants in the current debate
over post racialism; however, the case is offered here in pursuit of a different, far richer
opportunity. For close review of Longmire reveals a quietly competing ideological
framework for understanding race, one that I believe will ultimately overshadow both the
post racial account and the traditionalists‘ account of race discrimination. For Longmire
reveals that we are currently living in the era of ―elective race ‖ — a time when
antidiscrimination law is being asked to attend to the autonomy and dignity concerns of
individuals as they attempt to control the terms on which their bodies are assigned racial
meaning. This era of ―elective race‖ will require judges and scholars to develop a
nuanced understanding of the dignity and privacy interests plaintiffs will raise concerning
the control and deployment of ―racial information‖ — information about an individual‘s
racial background and racial identity claims. The era of elective race will challenge courts
and scholars to shift our focus, as it suggests that many future workplace discrimination
conflicts will not involve anti-minority bias as traditionally understood. Instead, these
3 For examples of the post racial account see D‘Souza, Dinesh. 1996. The End of Racism: Principles for a
Multiracial Society. Simon & Schuster.; Graves, Joseph. 2004. The Race Myth: Why We Pretend Race
Exists in America. Dutton Books. 4 5 For critiques of the post racial account see, Sumi Cho, Post Racialism, 94 IOWA L. REV. 1589 (2009);
Mario L. Barnes, Erwin Chemerinsky, & Trina Jones, A Post Race Equal Protection, 98 GEO. L. J. 967
(2010)
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new elective race cases will involve individuals attempting to enforce or defend their own
understandings regarding the terms on which their bodies are assigned racial meaning.
This Article reveals that elective race understandings are steadily gaining
influence, shaping the perceptions of government institutions as well as individual social
actors, in spite of the fact that elective race has not yet to evolved into a coherent
ideological form. The Article lays out the key concepts associated with elective race to
help courts and scholars understand the basic tenets and tensions in plaintiff‘s elective
race claims. I argue that, while the number of cases that sound in the nature of elective
race cases may be small at present, we should expect to see more cases of this kind given
certain changes in social and institutional perspectives on the importance of racial self-
identification. The elective race cases will challenge courts, forcing them to decide
whether Title VII should recognize the autonomy claims of individuals who are injured in
the workplace by social and formal processes of involuntary racialization, and to
recognize the dignity interests that are frustrated when others fail to respect an
individual‘s right to racial self-definition.
How does an understanding of elective race assist in understanding the conflicts
in the Longmire case? First, the concept draws our attention to the fact that the primary
conflicts in Longmire‘s case stems from his attempts to exercise control over the terms on
which his body was assigned a racial identity. His pay discrimination claim, his claims
of extortion and his allegation of privacy violations all stem from his concerns about his
employer‘s use and deployment of Longmire‘s racial information. Contrary to the post
racial account, his case does not suggest that race is a conceptual relic, unnecessary for
understanding contemporary realities. Instead, the case shows that both Longmire and
his employer were keenly sensitive to Longmire‘s interest in controlling the use of facts
about his race —as well as the power his employer enjoyed because of his access to
Longmire‘s racial information. Also, contrary to the traditionalists‘ claims, Longmire‘s
account is not a simple story about the obdurate nature of white privilege and the need for
racial passing. For Longmire would not have informed his employer of his mixed
background if he intended to pass as white, nor would he have shared information about
his racial background with his coworkers. Rather, the elective race framework suggests
that Longmire believed that he had a legally protected right to determine who should be
aware of the facts about his race and how these facts were utilized by others.6 The
elective race framework tells us that Longmire‘s standing, his right to relief, should rest
on whether we are willing to recognize an individual‘s right to exercise agency in shaping
his experience of racialization.
The Longmire case focuses our attention on the informal social processes in the
workplace that shape the racialization of racially liminal bodies, but this is only one half
of the elective race story. For the elective framework is primarily directed to examing
how private parties and institutional actors may use formal administrative regimes for
collecting racial data to police and maintain racial distinctions. To be clear, the elective
race framework will bring analytic clarity to our discussions as we examine the injuries
6 Put differently, Longmire believed that he had the right to remain anonymous or raceless at work with
less trusted coworkers, while still being free to utilize his minority background as a resource in personal
interactions with minority coworkers.
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alleged by persons who because of their own discordant views about race, have difficulty
navigating American racial data collection regimes. The Article shows that social and the
institutional processes of racialization are parallel and independent forces, but they can
and do work together to produce discrimination with material consequences. The
framework forces us to ask, what if any remedy should Title VII offer to persons injured
by these twin processes of racialization?
The description of elective race offered thus far has operated at a fairly high level
of abstraction, but the elective race framework promises to provide courts with concrete
assistance as they parse through the race discrimination claims of plaintiffs whom are
racially liminal or, for lack of a better term, are phenotypically ambiguous persons.
Specifically, the framework will allow courts to better addresses the interests of Latinos
and Middle Eastern plaintiffs — persons who currently are legally classified as white, but
many of whom believe that, as a practical matter, they are raced in ways that make their
experiences more similar to minorities.7 Persons in these groups often complain of the
conflict and anxiety Title VII data collection efforts cause by requiring them to identify
by race, arguing that these inquiries cause them to make inconsistent and conflicting
choices depending on the options offered to them for racial classification. The elective
race framework explains how courts should negotiate these individuals‘ complex identity
claims when they identify race or ethnic-based discrimination in the workplace.
Additionally, the elective race framework provides us with a better understanding
of the unique challenges faced by immigrants to the United States whom have an
understanding of race that fundamentally contradicts American administrative and social
norms regarding racial classification. For example, the sociological literature is replete
with examples of Latino ethnic groups that interpret the category of whiteness in
expansive ways, inflected by particular notions of skin color and class that have no clear
parallel in the United States.8 Members of these immigrant communities may elect to
identify as white socially and in administrative data collection efforts, despite the fact that
their understandings contradict American racial norms.9 Anti-discrimination law at
present has no language to describe how we negotiate these individuals‘ interest in
accurate self-representation as well as respond to the government‘s need to document
workplace discrimination triggered by American racial understandings. Last, the elective
race framework gives us the tools necessary to address intra-racial group conflicts
7 See e.g., John Tehranian, Compulsory Whiteness: Towards a Middle Eastern Legal Scholarship, 82 IND.
L. J. 1(2007) (calling for more scholarship that addresses Middle Eastern racial heuristics: the classification
of Middle Easterners as white before the law but not on the street). 8 See, e.g., J. Duany, Reconstructing Racial Identity: Ethnicity, Color, and Class Among Dominicans in the
United States and Puerto Rico, 25 LATIN AMERICAN PERSP. 147-172 (1998).; B.M., Ferdman, & P.I.
Gallegos, Racial Identity Development and Latinos in the United States i n C.L. Wijeyesinghe, & B.W.
Jackson (eds.), NEW PERSPECTIVES ON RACIAL IDENTITY DEVELOPMENT: A THEORETICAL AND PRACTICAL
ANTHOLOGY 33-61(2001). 9 There has long been concern about whether Latinos are complying with American understandings of the
divisions between particular racial groups. See Overview of Race and Hispanic Origin: Census 2000 Brief,
March 2001, page 10 (The Commission also notes that there is uncertainty about whether Hispanics or
Latinos willingly or accurately self-identify using American racial categories, when given the opportunity
to do so.‖); see also, Mireya Navarro, Going beyond Black and White, Hispanics in Census Pick „Other‟,
The New York Times, November 9, 2003, § 1 (New York Region), at 1.
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triggered when members of a particular racial or ethnic group reject the membership
claims of an individual whom elects or putatively claims that he is also a group
member.10
As the cases in Part II show, a putative member‘s elective act demanding
recognition of his racial identity may give rise to discrimination. 11
Elective race
addresses these constituencies needs by highlighting certain discrete changes we can
make to Title VII doctrine to better address the conflicts faced by individuals in these
circumstances.12
The elective race framework will also be of great interest to employment
discrimination scholars, as it highlights certain unappreciated autonomy, dignity and
privacy questions shared across several different seemingly unrelated categories of race
scholarship. It speaks to the small group of employment discrimination scholars
interested in the discrimination faced by multiracials, as these scholars have long
contended that Title VII doctrine is insufficiently nuanced to attend to the dignity interest
in being recognized as multiracial, and the unique kinds of discrimination that claiming a
multiracial identity can trigger.13
This article compliments that scholarship, as well as
sounding a corrective note, as it clarifies that only a small fraction of mixed race persons
10 See, e.g., Kendall v. Urban League of Flint, 612 F. Supp. 2d 871 (D. Mich. Apr. 3, 2009) (discussing
claims of biracial woman applying for job as CEO of the Urban League concerning challenges from her
interviewer as to the validity of her claim to identify as black); Walker v. Secretary of the Treasury, 713 F.
Supp. 403, 404 (N.D. Ga. 1989)(reviewing Title VII color discrimination claim brought by lightskinned
black woman against dark skinned black female supervisor). Cf. Sere v. Board of Trustees,628 F. Supp.
1543 (N.D. Ill. 1986), aff'd, 852 F.2d 285 (8th Cir. 1988) (rejecting 1981 claim of Nigerian employee
against light skinned black supervisor as non-cognizeable race discrimination claim). Some scholars touch
on these issues in the course of discussing color discrimination as a way of understanding intra-racial group
discrimination claims. See Taunya Lovell Banks, See, Trina Jones, Shades of Brown: The Law of Skin
Color, 49 Duke L.J. 1487, 1512 (2000). Other scholars have explored similar intragroup conflicts as
experienced by Latinos. Tanya Kateri Hernandez, Latino Inter- Ethnic Employment Discrimination and the
“Diversity” Defense, 42 HARV. C.R.–C.L. L. REV. 259, 266 (2007) (discussing the erasure of inter-group
Latino discrimination claims). 11 These cases are sometimes brought as color discrimination claims; however, the allegations capable of
being articulated through this cause of action is underinclusive. 12 The two primary proposals suggested in this discussion are 1) heightened scrutiny of adverse
employment actions that follow conflicts over categorization and racial commodification and 2) the
recognition of racial privacy interests. 13 The law review literature discussing the unique discrimination issues faced by multiracials is relatively
small. See Nancy Leong, Judicial Erasure of Mixed-Race Discrimination, 59 AM. U. L. REV. 469 (2010)
(discussing courts inadequate analyses of mixed race Title VII plaintiffs claims because of their use of rigid
racial categories); Scott Rives, Comment, Multiracial Work: Handing Over the Discretionary Judicial
Tools of Multiracialism, 58 UCLA L. Rev. 1303 (2011)(urging courts to recognize multiracials interests as
distinct from biracial persons, and advocating that courts give plaintiffs the right to self-identify by race in
employment discrimination suits and accommodate flexibility in identification choices). Leong complains
that, despite an extensive literature on multiracials and the Census, there is little exploring the unique bias
that mixed race persons sometimes trigger. Leong, Judicial Erasure at 473. Other scholarship on
multiracials interest in self identification has focused on its consequences for the Census. See Naomi
Mezey, Erasure and Recognition: The Census, Race and the National Imagination, 97 Nw. U. L. Rev.
1701, 1753 (2003) (arguing that emphasis on racial self identification in Census data compromises the
ability to record the precise dynamics of racial discrimination as racial meaning is imposed by third parties
rather than resulting from self definition decisions);. Cf. Tanya Katerí Hernández, ―Multiracial”
Discourse: Racial Classifications in an Era of Color-Blind Jurisprudence, 57 Md. L. Rev. 97 (1998)
(questioning the implementation of multiracial discourse in the quest for racial equality as hiding the racial
impact of supposedly race-neutral laws).
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are affected by discrimination stemming from the fact that they identify as multiracial.
More often, multiracials opt in various contexts to be counted as monoracial rather than
multiracial, and they often claim membership in different monoracial groups depending
on the timing and context of inquiries about their racial status. 14
Indeed, sociologists
have discovered that many multiracials shift between monoracial identities and gravitate
(sometimes passively, sometimes actively) into the racial category that is most
comfortable in a given context or provides some advantage in a given space.15
Given
these individuals often strategic and variable responses to questions about racial identity,
antidiscrimination law must address complex questions about how to parse through these
individuals‘ inconsistent identification patterns when they bring discrimination suits,
what antidiscrimination protections should be available in such circumstances, and
whether Title VII provides any relief for the dignity or privacy invasions they allege
when someone has exploitatively used facts about their racial backgrounds.
The elective race framework will also assist scholars working on the performative
or ―voluntary aspects of racial and ethnic identity, as these scholars have been interested
in the dignity interests individuals have in voluntary or elective acts, particularly those
that signal that one identifies as a member of a particular racial group. Elective race will
enrich this scholarship on race performance by highlighting the way that administrative
inquiries about race function as an important identity performance moment for many
persons, even though the positions they take may not match their social identifications.
The article suggests that these administrative performative acts play an important role in
racially marking phenotypically indeterminate bodies when this information is publicly
shared, and may become a trigger for social sanction.16
The elective race framework
14 Marie L. Miville, Madonna G. Constantine & Matthew Baysen et. al., Chamelon Changes: An
Exploration of Racial Identity Themes of Multiracial People, 52 J. OF COUNSELING PSYCH. 507, 514-516
(2005) (discussing mixed race persons tendency to shift between monoracial identities in a strategic
fashion) ;David R. Harris & Jerimiah Joseph Sim, Who is Multi-racial: Assessing the Complexity of Lived
Race, (discussing inconsistent racial self identification decisions of multiracials and noting responses
depended on context in which questions were asked) ; David Brunsma, Public Categories, Private
Identities: Exploring Regional Differences in the Biracial Experience, 35 SOC. SCI. RS. 553, 573
(2006)(explaining that there is a difference between how biracial people understand themselves racially and
the ways that they wish to present and manifest themselves in other contexts.‖). 15 Sociologists also note that multiracials‘ identification patterns are highly contingent in other ways, as
their responses are shaped by the type and manner of questioning used to elicit answers. Nancy Leong,
Multiracial Identity and Affirmative Action, 12 UCLA Asian Pacific American L.J. 1 (2007) (discussing multiracials’ different reactions to data collection forms that fail to fully address their complex racial identity claims). Latinos also make different identification decisions depending on the form used. Census 2000 Report (discussing Census officials attempt to revise forms to secure responses from Latinos that accord with American definitions of race) 16 See Camille Gear Rich, Performing Racial and Ethnic Identity: Discrimination by Proxy and the Future
of Title VII, 79 N.Y.U. L. REV. 1134 (2004)(discussing voluntary or elective features of racial identity as a
trigger for discrimination); See generally KENJI YOSHINO, COVERING: THE HIDDEN ASSAULT ON
OUR CIVIL RIGHTS 131 (2006) (describing penalties suffered by minority workers who fail to conform
to ―white‖ assimilationist workplace norms); Devon W. Carbado & Mitu Gulati, Working Identity, 85
CORNELL L. REV. 1259, 1306 (2000)) (discussing workplace institutional and structural constraints that
tend to disadvantage persons who engage in racially marked voluntary practices; Tseming Yang, Race,
Religion, and Cultural Identity: Reconciling the Jurisprudence of Race and Religion, 73 IND. L.J. 119, 154
(1997) (noting the clash between the state's regulatory judgment and one's right to ―define one's own
conception of the self‖).
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reveals that racial self identification decisions matter, often triggering resentment and
rejection when they do not match American understandings, and may trigger
discrimination. Elective race also challenges the existing scholarship on racial passing,17
and claims of racial fraud18
, explaining that these approaches to understanding race are
simply too reductionist to account for the complicated decisions a morphologically
indeterminate worker faces as he or she attempts to negotiate the workplace.19
In short, this discussion of elective race will clarify and frame various theoretical
debates about how to manage the needs of racially liminal subjects and/or persons
making inconsistent identity decisions about race. It will also allow us to better describe
the injuries inflicted on these individuals as they negotiate administrative inquiries and
race-related data collection efforts in the workplace. The discussion will help elective
race plaintiffs render visible the core antidiscrimination interests at stake in some of the
seemingly minor, antidiscrimination claims they raise alleging injury from what
employers‘ would describe as technical mistakes or misclassifications with regard to
racial identity.20
At present, many courts and scholars are skeptical of claims that sound
in the nature of elective race, without fully understanding the basis for the plaintiffs‘
claims of injury and the ways in which their claims are in accord with certain key tenets
of antidiscrimination law. By offering a comprehensive description of elective race, this
17 See, e.g. Robert Westley, First Time Encounters: Passing Revisited and Demystification as a Critical
Practice, YALE L. & POL‘Y REV. 297 (2000) (arguing passing should be understood as feeding on and
supporting white supremacy) (explaining that ―there is no racial identity without ―passing,‖ since ―passing‖
marks a boundary between us and them, Black and white, one and the other.‖); Kevin Maillard, An
Anatomy of Grey at (distinguishing between passive and active passing); Tseming Yang, Choice and
Fraud in Racial Identification: The Dilemma of Policing Race in a Affirmative Action, The Census and a
Color Blind Society, 11 Mich. J. Race & L. 367 (2006) (exploring the complex methodological problems
posed by multiracial individuals or phenotypical individuals who pass for white or as members of another
racial group) 18 See, e.g., Tseming Yang, Choice and Fraud in Racial Identification: The Dilemma of Policing Race in
Affirmative Action, The Census and A Color Blind Society, 11 Mich. J. Race & L. 367 (2006) (using the
lense of fraud to discuss conundrum faced by legal decision-makers and administrators when an individual
claims a racial identity that does not match how she is regarded in the community) The most famous case
involving ―racial fraud‖ in the employment discrimination literature is Malone v. Civil Service Commission,
646 N.E.2d 150 (Mass. 1995), in which the city of Boston terminated two firefighters who had been hired
pursuant to a court mandated affirmative action program presenting themselves as ―black‖ applicants. The
firefighters, who were brothers, had a tenuous claim on black identity based on a black great grandmother;
however, they had socially identified as white all of their lives, as had their immediate family members.
The city and the court concluded that the firefighters had engaged in racial fraud. See, Malone v. Civil
Service Commission, 646 N.E.2d 150 (Mass. App. Ct. 1995).
19 To assist in this endeavor, the article brings in thus far unexplored sociological and psychological
literature on the lived experiences of racially indeterminate persons‘ into the conversation of multiraciality
and racial liminality in the law review literature. 20 The Article reveals that these ―mistakes‘‖ have social and material repercussions. See e.g., Padilla v.
North Broward Hospital, 2007 WL 2364332 (putative white employee eliminated during reduction in
workforce decision after he resisted his employer‘s attempt to categorize him as Latino); Cooksey v. Hertz,
2004 WL 1093674 (E.D.N.Y. January 26, 2004) (putative Native American employee alleges abandonment
during training period after she expresses offense at employer‘s concerns that she has not classified herself
as Native American on employment form); (Nigerian worker including classification as African American
as part of her hostile environment claim)
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article attempts to provide courts and scholars with a better basis for understanding the
justice and fairness claims of individuals in elective race cases.
Part I of the article examines the growing influence of elective race on the
interpretation and enforcement of Title VII, revealing the ways in which EEOC data
collection procedures, similar to other areas of antidiscrimination law, enshrine the view
that individuals have a right to racial self definition.21
Part I then considers how lay
persons are likely to understand and vindicate this interest in self definition as they
negotiate administrative information requests about race and the more informal social
inquiries about race that they are likely to encounter in the workplace. I argue that while
individuals typically do not have a fully developed understanding of the nuances of
elective race, or the implications of these understandings, they have embraced the
dignity, privacy and autonomy norms that inform the basic concept of elective race.
Part II explores elective race cases, showing that, in the absence of EEOC
guidance about the importance of the right to racial self identification, courts are
dismissive and often hostile to plaintiffs‘ claims based on elective race. Although this
hostility stems from various sources, the Article focuses on focuses on four key issues
that stymie the development of doctrine attendant to concerns based on elective race.
First, most courts appear to be unaware of the dramatic theoretical shift that has occurred
in the EEOC‘s understanding of the importance of racial self-identification and the ways
in which data collection regimes condition (or discipline) workers to expect legal
recognition of this interest. Second, the courts lack important information regarding how
individuals negotiate data collection regimes requesting racial information, and therefore
tend to treat a plaintiff‘s history of inconsistent identification decisions as evidence of
bad faith. Third, courts fail to recognize the multiple and distinct self-identification
interests at stake in when individuals respond to requests for racial information,
conflating these interests in ways that compromise the accuracy of their legal decisions.
Fourth, some courts appear committed to norms regarding racial identity which posit that
one‘s race is the race one is involuntarily assigned by third parties (based on an
individual‘s perceived appearance). However, as the Article shows, this focus on the
plaintiff‘s ―perceived race‖ is insufficient to fairly resolve all elective race cases. In
order to fully protect plaintiffs invested in elective race, the courts will have to recognize
that discrimination may be triggered by bias against one‘s perceived racial category, but
it may also stem from requests one makes for public recognition of one‘s racial status.
Part III examines the larger theoretical implications of the administrative shift
towards elective race and changes in social understandings, exploring the dignity, privacy
and commodification concerns that lie at the heart of elective race cases. Part III argues
that that we can accommodate the new class of injuries alleged by elective race plaintiffs
while still preserving the integrity of a regime that is primarily directed towards
addressing discrimination triggered by traditionally understood anti-minority bias.
Drawing from the work of race scholars working on the politics of self identification in
other areas of anti-discrimination law, Part III explores critiques and concerns about the
21 Christopher A. Ford, Administering Identity: The Determination of Race in Race Conscious Law, 82 Cal.
L. Rev. 1231 (1994)
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9
rise of elective race and their implications for Title VII cases. Part III concludes by
offering some preliminary answers to the key questions courts will be forced to answer as
they attempt to shape existing Title VII causes of action to be responsive to elective race
plaintiffs‘ interests.22
Part I.
A. Defining Elective Race
1. Elective Race and Racial Formation
What is elective race? Why should we care about the growing influence of this
ideological framework in shaping anti-discrimination understandings? Devon Carbado,
Ian Haney Lopez, along with other antidiscrimination scholars, have encouraged race
theorists to closely study shifts between prevailing racial ideologies — the basic
conceptual frameworks we use to discuss and analyze race. Carbado and Lopez warn
that the failure to closely analyze these ideological changes risks conceding important
ground in the struggle to shape antidiscrimination protections. 23
This call to study racial
ideologies is fundamentally shaped by the concept of ―racial formation,‖ introduced by
sociologists Michael Omi and Howard Winant. Specifically, Omi and Winant argue that
we must roadmap the social, economic and political forces that determine the ways we
understand race, as well as the content and importance of racial [or ethnic] categories.24
As they explain, the contemporary meanings and understandings associated with race are
continually evolving, being reworked in a social enterprise called ―racial signification.‖
This process is inherently variable, conflictual, and contested at every level of society.
Omi and Winant counsel that there is no end game in this competition between
ideological framework for social dominance, as competing ideological frameworks are
always being offered and they continue to have persuasive sway even when they are on
the decline. This insight is particularly instructive as we explore the growing influence of
elective race, as this ideological framework has been extremely influential in shaping
Title VII, but ironically, it has received far less scholarly attention than some of it‘s less
influential competitors, including post racialism.
The primary method legal scholars have adopted to study racial formation — the
shifts and changes within and between racial ideologies, is best described as a macro-
level approach, as scholars tend to focus primarily on changes in institutional definitions
of race and racial categories. This macro-level inquiry is consistent with the
―sociological approach‖ to antidiscrimination law as articulated by Robert Post, as he
challenges antidiscrimination scholars to uncover the ways that institutions are involved
in the sociological process of defining race, even as they claim to simply be responding to
22 Scott Rives, Multiracial at Work: Handing Over the Discretionary Judicial Tool of Multiracials, 58
UCLA 1303, 1318 (discussing other examples where employer‘s numerical target for affirmative action
programs requiring matching minorities in general population were rendered unclear by concerns over how
to count the multiracial population and its effect on monoracial population estimates). 23 See Devon Carbado, Critical What What?, 43 CONNECTICUT LAW REVIEW 1593-1643 (2011); 24 MICHAEL OMI AND HAROLD WINANT RACIAL FORMATION IN THE UNITED STATES: FROM THE 1960S TO
THE 1990S (1994).
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10
the understandings of persons governed by antidiscrimination laws.25
Omi and Winant
explain that in studying institutional definitions we must consider the wide range of
sources that shape legal and institutional understandings. For institutional definitions of
race may be shaped by ―elites, popular movements, state agencies, cultural and religious
organizations, and intellectuals of all types that interpret and reinterpret the meaning of
race.‖26
These institutional definitions and understandings are also the product of prior
political contests over the definition of racial categories. Our analysis of elective race will
touch on all of these potential sources of influence.
The second approach to the study of racial formation— what I call a micro-level
approach, requires us to consider the way institutional understandings about race are
borrowed, modified and redeployed by individuals to serve their own identity needs. 27
While less well developed in the law review literature, this micro-level approach to the
study of racial formation is an analysis that scholars outside of the legal academy have
adopted. Our discussion of elective race focuses relies heavily on a micro-level analysis,
as I show how research from sociologists and psychologists provides insight into how
individuals respond to institutional dictates and use institutional pressures to police and
enforce layperson understandings of race. First we will examine the social, political and
psychological needs plaintiffs vindicate by raising elective race claims, typically alleging
the violation of their interest in racial privacy and the right to racial self-identification.
This portion of my analysis places particular emphasis on understanding the experiences
of multiracials and racially liminal workers, charting the psychological conflicts and
challenges they face as they negotiate administrative data collection regimes and other
informal racial categorization inquiries in the workplace.28
Next we consider how
employers and co-workers may use state-authorized inquiries, regulations and other
vehicles to means police individual workers‘ understanding about the definition and
content of racial categories. By understanding the psychological motivations and
structural incentives of employers and employees we get a fuller sense of the stakes in
elective race workplace conflicts.
25 Robert Post, Prejudicial Appearances: The Logic of American Antidiscrimination Law, 88 CAL. L. REV.
1 (2000) 26 Omi and Winant also argue that racial ideologies only gain hold because they are responsive to and
reflective of the political and social exigencies of the period. Indeed, this is the source of their persuasive
power.
27 Although less developed in the law review literature, this micro-level approach to the study of racial
formation is an approach that scholars outside of the legal academy have urged. See, e.g., John Hartigan Jr.,
Locating White Detroit, in DISPLACING WHITENESS: ESSAYS IN SOCIAL AND CULTURAL CRITICISM 180, 182
(Ruth Frankenberg ed., 1997) (urging scholars to apply the racial formation framework to more granular,
local disputes that concern ―collective action and personal practice‖). Cf. Ladelle McWhorter, Where Do
White People Come From?: A Foucaultian Critique of Whiteness Studies, 31 Phil. & Soc. Criticism 533,
534 (2005) (discussing the limitations of scholarship that solely relies on racial formation theory at the
national level and does not include attention to micro-level disputes). 28 The discussion reveals that a focus on the individual racial self definition decisions social actors make
regarding racial identity does not threaten our ability to explore the larger questions of social subordination
that typically preoccupy race scholars. Rather, by focusing on individual psychology, we can explore the
reasons that the morphologically ambiguous (those with the power to voluntarily exit certain racial
categories) continue to seek means to do so, and how their decisions affect the quest for racial equality.
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11
2. Elective Race: Core Propositions
To unpack the explanatory and persuasive power of an ideological framework like
elective race, it is useful to have a roadmap of its key propositions. One caveat is
necessary: often institutional actors and individuals who hew to elective race
understandings may not have a full understanding of the implications that flow from
elective race. Consequently, the comprehensive description of the elective race
framework provided here brings an artificial coherence to this group of ideological
understandings. Additionally, not all institutional players or individuals influenced by an
understanding of elective race will agree with all of propositions associated with my
description of the framework. As Omi and Winant explain, racial ideologies are
constantly evolving and unfolding as they are articulated. My goal in offering this
introductory roadmap is not simply an attempt to impose order on a currently incoherent
field of ideas that vouch for the importance racial self identification to antidiscrimination
law. Rather, by viewing these understandings in the aggregate, one gets a better sense of
the tensions that must be resolved in order for the law to adopt a principled approach to
these claims. Also, in laying out this roadmap the discussion take note of when the
propositions I described are culled from institutional rules (such as those created by the
EEOC) or derived from lay persons understandings of elective race issues. For one
discovers that there is a fundamental tension between the high dignity stakes individuals‘
place on the right to racial self identification and the more measured approach
institutional actors have adopted in recognizing this self definition interest.
Ian Haney Lopez offers a four part inquiry to scholars interested in tracing out the
implications of a given ideological formation. He explains that the significance of a
particular ideological formation should be assessed by examining the answers it provides
to four key, foundational questions: (1) What is race? (2) What is racism? (3) What is the
relationship between race, racism, and inequality, and (4) what if anything is morally
required of us as a society given these understandings?29
Although the recent emphasis
on racial self identification has raised a variety of concerns, our analysis of elective race‘s
responses to these four inquiries reveals that much of the anxiety about elective race
stems from a concern about its larger implications for social justice. Yet, as this analysis
shows, our concerns may be overblown or at least premature, as at least some versions of
elective race are fully consonant with our desire for antidiscrimination law to attend to
larger issues of structural inequality.
Persons influenced by an account of elective race will tend to see race as
primarily a result of individual choice in constructing one‘s identity and secondarily as a
identity involuntary imposed on an individual as a result of third parties views about race
and their use of physical traits to facilitate racial categorization.30
This recognition of the
two processes by which individuals are racialized is strongly influenced by the social
constructionist view of race — the understanding that there is no biological foundation
for race, and that social actors are involved in a complex reciprocal process of give and
take as they negotiate their understandings regarding their own racial identity and the
29 See Ian Haney Lopez, Post-Racial Racism: Racial Stratification and Mass Incarceration in the Age of
Obama, CAL. L. REV. 807-808. 30 See
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12
identities of those around them.31
While the experience of involuntary racial
classification typically turns on one‘s physical charateristics, my earlier work on race
performance sheds light on the way that voluntary acts — race and ethnic performance,
are equally if not more determinative of how an individual is racially categorized by
others. Specifically, my analysis of race performance explains that racial assignment
may also be triggered by an individual‘s clothing choices, speaking style, accent,
associational choices and other factors, in addition to his physical features.32
Persons who
see the world through an elective race framework will be particularly persuaded by this
view, as for a racially liminal or phenotypically ambiguous person, race and ethnic
―performances‖ are very often the primary signals that others use to assign one to a racial
category.33
The understanding of elective race, described here, also recognizes that a
person‘s response to administrative inquiries or social inquiries about race also functions
as a kind of identity performance moment, but one with unclear implications. For an
elective act, associating with a particular group may be a relatively private affair that is
not disclosed to third parties. In some circumstances however, the responses on gives to
inquiries about race becomes a piece of social knowledge that is shared and used by
others. In these circumstances, racial self identification can become a powerful force in
the racial ascription process.
Indeed, persons influenced by the concept of elective race tend to be particular
focused on the different kinds of racial self-designation decisions they make in their
lives. 34
While their understandings typically are not as well disciplined or organized as
outlined here, persons who hew to an understanding of elective race tend to identify
discrete interests in various different kinds of self identification decisions. They raise
concerns about (1) documentary race – the racial identification decision one makes by
checking a box in response to administrative data collection efforts; (2) social race - the
racial identity one tends to be assigned to by others via the process of involuntary racial
ascription; (3) private race – the personal views one has about one‘s own racial identity;
and (4) public race, the racial identity an individual is prepared to be recognized as
having by others in social life. Review of the law journal literature shows that there has
been a great deal of scholarly discussion and political activism regarding the role
documentary race plays in constructing one‘s identity;35
however, in many workplaces
31 See Camille Gear Rich, Performing Racial and Ethnic Identity: Discrimination by Proxy and the Future
of Title VII, 79 CAL. L. REV. 1134, 1145-1166 (2004). [Hereinafter Race and Ethnic Performance] 32 See Rich, Race and Ethnic Performance at 1158-1166. 33 Blurred Boundaries at __ (discussing Mexican waitress‘s experience of race discrimination after Persian
employer determined that she was not Persian when she spoke Spanish to the busboys at his restaurant) 34 Sociologists have noted that multiracials tend to make distinctions between the various kinds of
identification decisions they are required to make, and will provide different answers. See Sim, Who is
Multiracial at 615. In Sim‘s analysis the individual personally held views about his or her racial identity
are called references to―internal racial identity.‖ An observer or third party‘s view of one‘s race is called
―external racial identity.‖ Finally, they distinguish between ―expressed racial identity,‖ the words and
actions that convey what one believes about one‘s race. For additional examples, see sources infra 35 Aaron Gullickson & Ann Morning, Choosing Race: Multiracial Ancestry and Identification, 40 Social
Science Research 98–512 (2011) (explaining that multiracials with Asian ancestry are more likely to claim
a multiracial identity that mixed race people of combined black and white or white and Native American
ancestry). Gullickson and Morning call for more research into the identification patterns of mixed race
people based on racial background) ; Carolyn Liebler, Ties on the Fringes of Identity, 33 Soc. Sc. Res. 702-
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13
coworkers are unaware of these documentary racial self identification decisions.
Therefore, while persons motivated by an account of elective race tend to stress the
importance of questionnaires and other instruments for collecting racial data as causing
trauma (when they are required to elect into a particular racial category)36
they would
concede that the account of elective race is not complete unless it accounts for the fact
that performative acts tend to play a greater role in the constitution of social race in the
workplace– the race others recognize one as being.
Careful review of individuals‘ racial self definition practices also reveals that a
theory of elective race must accommodate the fact that the election one makes with
regard to documentary race (the racial self identification decision one makes on a form)
may or may not accord with one‘s private race (the way one would like to see oneself),
social race (the race one is perceived by others) or public race (the race one is prepared
to be recognized as publicly).37
Previous scholarship has implicitly assumed that an
individual‘s decision with regard to the establishment of documentary race will match the
individual‘s public and/or social race or the individual has engaged in a kind of racial
fraud.38
However, the elective race framework takes account of the fact that many
individuals, in particular phenotypically ambiguous individuals, make inconsistent self
identification choices for the purposes of documentary race as well as inconsistent public
race identity choices. Consequently, a rigorous discussion of an individual‘s interest in
racial self identification must take account of these four distinct components of racial
identification, and to fairly assess the integrity of our procedures for collecting racial
information.39
723 (2004)(noting that racial identification among people with mixed-heritage is affected by the social
world beyond individual psychology and racial ties within the family) 36 Leong, 37 A few examples help illustrate this point. For example a Morroccan person may feel pressured to
identify as White, for purposes of documentary race, as Middle Eastern persons are categorized as white by
the federal government for documentary purposes, However, he is aware that his social race is non-white,
and he is generally classified as a Middle Eastern person. For purposes of private race, he may reject this
Middle Eastern designation, seeing himself as North African, distinct from other groups socially
categorized as ‖Middle Eastern.‖ He may be unsure about his ―public race,‖ the race he is prepared to be
identified as publicly vacillating between Middle Eastern and the North African designation. The most
famous recent example of this problem is the current debate over Elizabeth Warren‘s decision to identify as
Native American while she was employed at Harvard Law School. Warren was socially recognized as
white and did not belong to any Native American groups nor was she a registered member of a tribe.
A biracial white and black person may privately see herself as mixed race or multiracial, and be prepared to
be recognized as mixed race for purposes of documentary race as well. However, she may recognize that,
because of her physical features, she is socially raced as black. For purposes of public race, she may
vacillate back and forth between being recognized as white or black, concluding that the mixed race
designation only marginalizes her in groups of black and white persons.
38 39 Other scholars have note that we must distinguish between different kinds of racial identity, particularly
the distinction between self selected racial identity and the racial identity one is assigned by others. See
Nancy A. Denton, Racial Identity and Census Categories: Can Incorrect Categories Yield Correct
Information?, 15 LAW & INEQ. 83 (1997) (articulating the importance of the difference between social and
individual identity)
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14
Haney Lopez‘s framework also prompts us to assess elective race by considering
how this ideological framework defines racism. Persons who hew to an understanding of
elective race tend to adopt a relative uncontroversial account of racism, namely that
racism occurs when people make stereotype-based, opportunity frustrating
generalizations about an individual based on assumptions about an individual‘s racial
background. Persons concerned with elective race tend to be particularly concerned
about stereotyping triggered by documentary race, as they believe the social and
administrative decisions one makes about racial identity can cause one stigmatized. Also,
they are concerned about circumstances in which one‘s choices with regard to
documentary race are challenged because the person making inquiries questions whether
the individual seeking recognition has a fair basis for claiming membership in the racial
or ethnic group with whom they seek to be affiliated. Most persons influenced by
elective race would agree that racism occurs when a third party uses racial information to
make assumptions about a phenotypically liminal individual that limit his economic
opportunities, signal his social subordination and/or discourage further social contact.
Others may adopt a more controversial stance, arguing that the act of questioning,
challenging, or even worse denying an individual the right to recognition as a member of
a racial or ethnic group also counts as discrimination, as it is a kind of race-based
subordination with which the law should be concerned. The Title VII inquiry does not
necessarily require that we definitely resolve matters in favor of this more controversial
account, as it instead provides that any dispute about racial categorization must end in a
concrete adverse employment action in order to provide a basis for a legal claim.
Therefore when the denial of a group membership claim results in the loss of benefits, the
elective race plaintiff will be able to point to a legally cognizeable Title VII injury.
However, the more controversial and as yet unresolved question for Title VII scholars is,
should the denial of a group affiliation claim count as an adverse employment action?
Should these denials be regarded as a kind of dignitary assault that permanently poisons
the workplace?
Persons influenced by an account of elective race framework are often criticized
on the ground that their focus on self-definition has little to no relevance to the larger
problems that are the focus of race discrimination law: disrupting racially embedded
patterns of social inequality.40
However, some persons who hew to an understanding of
elective race believe that honoring this interest in self-definition does play a key role in
ending social inequality. For proponents of elective race would argue that one‘s life
chances can be frustrated by one‘s decision to voluntarily identify with a subordinate
racial group. That is, the decision for a biracial man to identify as black may cause him
to be subject to social sanction. However, some proponents of elective race also believe
that it is discrimination when one‘s claim of racial belonging to a socially powerful group
is challenged, outright rejected or inconsistently accommodated. For example, they
would also believe that discrimination has occurred when the same biracial white man is
40 Persons influenced by accounts of elective race tend to emphasize the dignity interest an individual has
in voluntary racial self identification, the dignity invasion that occurs when one is involuntarily assigned to
a racial category. These disputes tend to center around fights over administrative data collection efforts,
stressing the distinction between documentary race, social race, private race and ―public race‖ the race one
choose to be recognized as for official purposes.
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15
denied the opportunity to identify as white. In their view, social inequality is primarily
caused by the involuntary racialization of people‘s bodies in ways that limit their social,
economic, and political opportunities. This understanding of discrimination is likely to
unsettle many parties. Viewed in its best light, their claim might be that their ―desire for
whiteness‖ can function in ways that are disruptive to whiteness and ―white privilege,‖ as
they insist that whiteness is not a commodity exclusively available to certain bodies.
The last set of responses to Haney Lopez‘s foundational questions, exploring the
moral implications of elective race, perhaps will be the most controversial. For persons
who adopt an understanding of elective race are not critical of the varying, shifting and
conflicting racial identity decisions that racially liminal subjects make over the course of
their lives. Rather, persons who champion elective race recognize that individuals make
strategic racial identification decisions for a host of reasons, some of which may
disappoint and surprise us, but they do not believe that these decisions have any bearing
on whether these individuals may raise claims alleging discrimination based on their
―minority‖ status. That is, a phenotypically ambiguous individual may situationally
identify with a socially privileged group (typically whites), and at other times with
minority groups, but may still have a valid need to invoke antidiscrimination protections.
Proponents of elective race suggest that, rather than casting moral judgment on these
actors, we should recognize whether their claims are based on involuntary racial
ascription processes that have caused them to be racialized in a subordinating manner.
This more generous response to individuals whom have a flexible approach to racial
identity may seem more persuasive when we consider that individuals making
inconsistent documentary racial identification decisions may be responding based on
discordant but genuinely held views about racial norms, or they may be attempting to fit
their own racial understandings into ill fitting data collection responses. This approach
also may seem more palatable if we consider the ways in which self identification, for
purposes of documentary or public race, is likely to evolve as one experiences
discrimination or socializes in different communities. For those who adopt an
understanding of elective race, consistent identification with one‘s minority roots is not
an essential precondition for needing the protection of antidiscrimination law, nor is it an
effective proxy for understanding whom is interested in ensuring racial fairness in the
workplace.41
Our discussion of the lay person‘s understanding of elective race ends here, and
we shift to an analysis of institutional actors influenced by elective race, as they tend to
have a different understanding of elective race issues. For the institutional measures that
recognize the dignity interest in racial self definition, also recognize that this interest in
self definition must be defeasible in certain circumstances, in order to accommodate the
state‘s compelling interest in ensuring the integrity of its data collection procedures,
which are designed to test patterns for race discrimination based on American racial
understandings. Therefore, this more comprehensive description of elective race
recognizes that some constituencies in the elective race community recognize that the
government retains a counterbalancing interest that may create a need for administrative
41 For a discussion of the ways in which whites negotiate and jockey with one another to establish white
privilege in a workplace, see Camille Gear Rich, Marginal Whiteness 98 CAL. L. REV.1497 (2010).
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16
processes that require involuntary racial classification for some purposes. That is, the
framework separates out the state‘s interest in creating a racial snapshot of a given
workplace, locality, or even of the nation, even as it accommodates the dignity and
privacy interests of its citizens. Yet this constituency has not yet contended with the fact
that ―private race‖ – one‘s personally held views about racial identity, when compared
with an individual‘s social race and ―documentary race,‖ simply may not match. Rather,
as Section B shows institutional understandings of race assume a unity between these
three kinds of racial identity determinations that may not exist for racially liminal
persons. Indeed, as Section B shows, in order to be truly respectful of the individual‘s
dignity and privacy based concerns, while attending to larger problems of discrimination,
the state must preserve some method for collecting data about social race (the group one
is involuntarily assigned to by other social actors), in order for this data to serve its
proper administrative purpose.
B. The Institutional Push Towards Elective Race
1. Formal Rules
The institutional shift towards elective race is most clear when one reviews the
racial data collection regulations the EEOC has issued to govern employers as they
engage in their Title VII mandated annual collection of demographic data to identify
patterns of discrimination in the workplace. As most employment discrimination scholars
know, these regulations require each employer with over 100 employees to collect and
report information about the racial composition of its workforce.42
In 2007, the EEOC
issued instructions requiring employers to collect racial data information from their
employees by surveying the employees and asking them to self identify, to elect into a
racial category.43
Typically this inquiry process takes the form of a written survey that
requires an employee to check off a box (or boxes) to record his or her claimed racial
identity.44
The EEOC then compiles the data and uses it for a variety of purposes,
including research. However, the data‘s most important purposes are to assist the EEOC
in identifying the employers it is required to investigate for potential race and sex
discrimination, and to provide data to employees bringing employment discrimination
suits, to inform them about potentially broader workplace discrimination trends of which
they might otherwise be unaware.45
Importantly, prior to 2006, the EEOC had adopted a
fundamentally different approach to racial data collection. That is, it specifically warned
employers not to ask their employees questions about racial identity, and instead to
conduct a visual survey of each employee, and assign him to a racial category based on
the employer‟s perceptions regarding the employee‟s racial status. 46
The reasons for
42 See eeoc.gov/employers/reporting. Contactors who do business with the federal government and have
over 50 employees or do over $50,000 in business with the federal government are also subject to these
requirements. 43 These changes were made as part of changes to the EEOC-1 reporting procedure. Although the changes
were announced in 2005, the EEOC gave employers until 2007 to implement the announced changes. See
http://www.eeoc.gov/employers/eeo1/qanda.cfm 44 http://www.eeoc.gov/employers/eeo1survey/upload/instructions_form.pdf 45 See http://www.eeoc.gov/employers/eeo1/qanda.cfm 46 Joseph Z. Fleming, I Believe There Is Something Out There Watching Us; Unfortunately, It‟s the
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17
prohibiting inquiries about racial status were clear: the view of the agency was that such
inquiries would invade an employee‘s sense of dignity and privacy.
This seismic shift in the EEOC‘s approach to collecting racial data took place
rather quietly; there was no sustained outcry from litigators, employers or workplace
discrimination scholars despite the significance of this change in approach.47
For this
change in EEOC policy signaled a fundamental change in the norms governing the
EEOC‘s approach to racial data collection and understandings of dignity and privacy.
That is, prior to 2006 the EEOC concluded that dignity norms required that employers
dutifully avoid making inquiries of their employees about race.48
The view was, it was
far better for the employer to make these determinations about racial status based on his
perceptions and report them to the EEOC. After 2006, the dignity norms shifted to
protect employees‘ new right to racial self-identification, a dignity interest that was
effectively violated if an employer made this decision ―for‖ the employee. The EEOC‘s
new view was that any discomfort caused by inquiries about racial status was something
the individual was required to endure, in order to ensure that her autonomy interests and
racial designation decisions were respected. The most significant aspect of this change
for our purposes is that the old EEOC regulations privileged social race— social
perceptions about an individual‘s racial status instead of private race —one‘s personally
held views about one‘s racial identity. Additionally, the new EEOC regulations also
treated documentary race as identical to public race— the race the employee wanted to
claim as part of his or her public identity.
Why did the EEOC shift course in 2006, privileging private race over social race
understandings?49
An understanding of racial formation signals that we should be keenly
interested in this shift in administrative understandings. The simplest answer is that the
EEOC was responding to changes in the Office of Management and Budget‘s Directive
15 – the policy that controls racial data collection efforts for all federal agencies.
Governement: An Analysis of the EEOC‟s EEO-1 and OFCCP Reporting Requirements, American Law
Institute - American Bar Association Continuing Legal Education ALI-ABA Course of Study November 30
- December 2, 2006, SM027 ALI-ABA 1209 at 12-13 47 First word of the proposed shift was announced in a June 11, 2003 Notice. At that time, some employer
groups raised questions about the change. See http://www.eeac.org/public/03-133a.pdf (statement of
concern by the Equal Employment Advisory Counsel, June 18, 2003). Also Fleming reports that a few
public commenters were concerned about potential employee discomfort with racial and ethnic self-
identification, and one public commenter questioned the legality of self-identification under Title VII of the
Civil Rights Act of 1964, as amended, (Title VII) and Executive Order 11246, as amended. See Written
Comments of Affirmative Action Consulting; Written Comments of Associated Industries of the Inland
Northwest.
48 49http://www.willis.com/Documents/Publications/Services/Employee_Benefits/Alerts_2006/EEOC_Revise
s-EEOC-1_Reporting_Form-Alert--81.pdf (―In the past, the EEOC permitted employers to determine an
employee‘s race or ethnicity by visual observation. The revisions strongly encourage employers to ask their
employees to self-identify their race or ethnicity and to rely on visual identification of an employee‘s race
or ethnicity only when an employee refuses to self-identify.‖). See also,
http://hrtrainingcenter.com/readArticle.asp?AID=1000022 (Beginning with the next EEO-1 Report, the
EEOC strongly endorses self-identification of race and ethnic categories, as opposed to visual identification
by employers. It is no longer enough for an employer to rely on visual identification by the employer to set
forth the race or ethnicity of its employees).
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Specifically, in 1997 the OMB made changes to Directive 15 that required federal
administrative agencies to adopt data collection processes that respected individuals‘
interest in selecting (or electing) a racial status. Federal agencies specifically were
informed that ―respect for the dignity [of individuals] should guide the processes and
methods for collecting data on race and ethnicity.‖ The OMB explained that ―ideally,
respondent self identification should be facilitated to the greatest extent possible.‖50
Although OMB had previously used horatory language to this effect in other reports, in
its 1997 Announcement of Decision it explicitly ―underscore[d] that self identification
[had become] the preferred means of obtaining information about an individual‘s race
and ethnicity.‖
While it is superficially persuasive, this story about the effect of Directive 15 is
insufficiently nuanced to account for the EEOC‘s policy shift nearly a decade after the
revised Directive 15 was issued. In fact, OMB went on record explaining that federal
civil rights enforcement entities had a special interest in collecting data based on social
race, and therefore they should be exempt from the new data collection policies
privileging racial self identification. The OMB explained that although ―self
identification is important to many people,‖ ―self identification is not the preferred
method [of data collection] among federal agencies concerned with the monitoring of
civil rights.‖ Rather, it explained, these civil rights agencies ―prefer[red] to collect data
based on visual observation.‖ The OMB approved of this view, explaining that, ―since
discrimination is based on the perception of an individual‘s race or Hispanic orgin, this
was the best approach to data collection for organs charged with responsibility for
enforcing laws prohibiting discrimination.51
‖ This understanding appears to have
persisted for several years after the 1997 changes, for the EEOC did not change its data
collection policies to privilege elective race until 2006. Consequently, there must be
other factors that account for the shift in understanding rather than a simple story about
the EEOC deciding to follow the requirements of the revised version of Directive 15.
Racial formation scholars would next look to the influence of social movements
to explain the EEOC‘s shift in policy. That is, they would point to the numerous
multiracial social advocacy groups petitioning for accommodations in the 2000 Census as
having spurred the EEOC‘s change in policy. These multiracial advocacy groups
specifically petitioned the federal government to create a multiracial category for the
2000 census, to allow individuals more choice in making elective race decisions.
Certainly, it is possible, given the multiple public hearings on these issues, that these
advocacy groups shaped the opinions of EEOC officials in addition to shaping the
OMB‘s perspective.52
Finally, one might cite America‘s ugly history of forced racial
50 [1997 Decision, at 3]. 51 1995 Report, pg. 5. Interestingly, the need to collect information about social race even affected the
OMB‘s decisions regarding which racial categories they recognized under Directive 15, as the―the[civil
rights] agencies opposed any changes that would make it more difficult to collect data‖ when third parties
were being asked to make determinations about an individual‘s racial status. It was argued that, if
Directive 15 included a multiracial category, it would be nearly impossible for data collectors to make
determinations about who properly belonged in this category. [1995 Report, pg. 11] 52 See Scott Rives, Multiracial at Work, fn. 3 (contextualizing the ―victory‖ for recognition of multiracial
status in light of former legal categories for octoroons and quadroons)
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19
assignment and litigation protecting the status of whiteness as motivating EEOC officials
to move away from involuntary categorization regimes. Ariella Gross‘s work on the
whiteness trials of the 19th
century uncovers the painful history of forced racial
assignment and the material and social consequences of being denied the ability to self
identify into a privileged racial category.53
Similarly, Ian Haney Lopez‘s immigration
history documenting the exclusion of brown bodies based on their failure to qualify for
whiteness reveals America‘s painful past of not honoring individuals racial election
decisions.54
Angela Onwachi-Willig work, as well, emphasizes this point, as everything
from citizenship to immigration to the legal enforceability of one‘s marriage55
turned on
race determinations in which the individual‘s racial election choices carried little weight
and were routinely rejected. Consequently, even if policy makers at the EEOC had
reservations about the shift to elective race, they may also have had reservations about
preserving a regime that forced people into racial categories without their consent.
The EEOC‘s new found discomfort with involuntary racial classification marks
the EEOC‘s current data collection regulations in significant ways. First, employers are
advised to premise their inquiries with some form of qualification, explaining that they
are only soliciting information about race because they are required to maintain statistics
by the federal government. Additionally, employers are strongly advised to segregate the
information about an employee‘s race from the employee‘s employment file, to ensure
that these elective race decisions do not become a basis for discrimination. Inquiries at
the pre-employment stage are tightly controlled, as are those that are made post hiring.56
Importantly, however, while the EEOC‘s discomfort with involuntary
classification shapes the new data collection regulations in important ways, the EEOC did
not entirely abandon its understanding about the importance of social race. Employers
are still permitted to racially classify employees, but they are only permitted to do so in
exigent or special circumstances. First the regime permits an employer to racially
classify an individual on its own, if the individual ―declines to state‖ or refuses to
identify himself by race.57
It also permits employers to racially classify employees when
it is impractical to collect self identification data from workers.58
Last, and perhaps most
controversial, the new regulations give employers the ability to re-classify an employee if
53 Ariella J. Gross, Litigating Whiteness: Trials of Racial Determination in the Nineteenth-Century South,
108 YALE L.J. 109 (1998) (analyzing court definitions of ―whiteness‖ in racial determination cases
concerning slave codes in late nineteenth and early twentieth centuries); 54 IAN F. HANEY LÓPEZ, WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE (1996) (analyzing court-
constructed definitions of race in citizenship cases in late nineteenth and early twentieth centuries). 55See Angela Onwachi Willig, A Beautiful Lie: Exploring Rhinelander v. Rhinelander as a Formative
Lesson on Race, Identity, Marriage, and Family, 95 CAL. L. REV. 2393 (2007).; Kevin Noble Maillard,
The Multiracial Epiphany of Loving, 76 FORD. L. REV. 2709 (2008) (discussing pre-Loving miscegniation
cases as evidence of legally prohibited interracial unions) 56 The strongest evidence of the concerns about elective race giving rise to discrimination are found in the
numerous cases where employees complain that documentary evidence about racial status became a basis
for discrimination, even when the employer never had the chance to physically see a given employee. 57 58 See CCH-EEOCCM P 5403, 2009 WL 3608161 (C.C.H.) (noting that when an employee fails to provide
racial information after being requested to do so, the employer may rely on visual observation) . See also
Fleming, Someone is Watching Us at 11 (―Employers may use employment records or visual observation to
gather race and ethnic data for EEO-1 purposes only when employees decline to self-identify.‖)
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he or she is engaged in ―racial fraud,‖59
when the employee has no credible basis for
making certain claims about his or her racial identity. The EEOC however, has declined
to provide specific guidance on when an employer is authorized to make a claim of racial
fraud.60
The EEOC‘s decision allowing employers to continue using data collection efforts
based on social race tells us some important things about institutional elective race
understandings. First, it signals an important understanding about the limits of an
individual‘s interest in racial self-designation. For the regime recognizes the state‘s
compelling interest in gathering data about the racial composition of the American
workforce and provides that, in certain circumstances, the state‘s interest must override
an employee‘s interest in self identification. The case for recognizing this countervailing
interest is easily made when the employee ―declines to state,‖ for his decision threatens
the administration of a system which is maintained for the benefit of other citizens.
Additionally the case is strong when the employer is, for practical reasons, unable to poll
employees, as the EEOC does not want to create unreasonable burdens on employers
required to gather this information. However, the tenor of this government interest
changes when we consider the state‘s interest in challenging persons engaged in ―racial
fraud.‖ That is, if we understand employees to have a strong dignity interest in self
identification, why should the employer have the ability to override the employee‘s racial
identification decision if it believes that abuse has occurred? Is the government‘s interest
in the integrity of the racial data it collects sufficient to defeat the employee‘s interest?
Moreover, what would be the basis for the claim of racial fraud?
The residual right that an employer has to challenge ―racial fraud‖ is a product of
America‘s antidiscrimination history. Indeed, the employer‘s right to challenge racial
fraud most likely derives from early contests over affirmative action programs, when
―socially white‖ persons began to mine their genealogical backgrounds to identify a
minority relative, as a way of qualifying for affirmative action benefits. The most famous
and possibly most notorious example was that of the Malone Brothers, two firefighters
who were socially white, but claimed to have a black grandmother as a way of qualifying
for an affirmative action program. There were numerous cases involving such claims in
the 1980s. To prevent a resurgence of this problem, employers were given authority and
power to challenge employees‘ racial classification claims in certain circumstances. Yet
59 See CCH-EEOCCM P 5403, 2009 WL 3608161 (C.C.H.) at 5. (―EEOC Compliance Manual 2011) The
manual explains that ―the person attempting to secure information regarding race, sex, or ethnic affiliation
should not second guess or in any other way change a self declaration made by an applicant or employee as
to race, sex, or ethnic background. An exception to this rule can be made where the declaration by the
applicant or employee is patently false.‖
60 This problem is not particular to workplace affirmative action programs. One sees evidence of this with
multiracial persons electing to be counted as black or another minority in their admissions materials to
selective schools, but opting out of that category once enrolled. [It matters when you ask]. As I have
observed in my other work, as benefits appear to accrue to members of a particular racial or ethnic group,
one can expect to find that greater numbers of people will recognize their connection to a group. [Race as
Performance] I amend this in recognition that, with socially stigmatized groups, they will be more likely
to recognize that connection as a matter of documentary race, where the racial election is unlikely to be
noticed and have broader social implications.
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many of today‘s contests over racial self identification and affirmative action do not bear
any similarity to the strategic gamesmanship associated with the Malone Brothers.
Rather, as Part II reveals, they often reveal difficulties with defining and administrating
regimes recording documentary race, as opposed to social race, the concept of race to
which affirmative action programs appropriately respond.
2. Interpreting the Formal Rules: Institutional Elective Race
Understandings
What can we learn about elective race from the EEOC‘s changes in data
collection efforts? First the regime recognizes an extremely strong interest in self
determination and dignity with regards to matters of racial identity. We have moved
from a Don‘t Ask, Don‘t Tell regime —one that allowed the employer free reign to
racially categorize employees with no requirement of disclosure to the employees, to one
that gives an employee sole power to define his or her racial identity for administrative
purposes, as long as no allegations of malfeasance are involved. For the EEOC
regulations also explain that in most circumstances an employer may not reclassify an
employee, placing him in another racial group, when the employer disagrees with the
employee‘s self identification claims, absent evidence of malfeasance or ―racial fraud.‖
This understanding about the strong right an employee has to racial self-definition can be
seen as proof of the influence multiracial groups had on EEOC officials. However, these
rules may also be a reaction to the U.S.‘s ugly history of enforcing whiteness standards.
By discouraging employers from challenging employee‘s racial identification decisions,
the EEOC arguably attempted to prevent its new regulations from being used by
employers to enforce whiteness standards or other standards for racial categories under
the guise of data collection efforts.
Second, the EEOC shift to a self identification regime signaled a shift in the
government‘s understanding of racial privacy. The old understanding of racial privacy
—that employees had a right not to be questioned about racial matters, was retired. What
arose in its place was a different understanding of racial privacy, one that made privacy a
procedural matter, ensuring that racial data was carefully solicited and segregated from a
worker‘s employment file. For example, employers were cautioned about questioning
employees about racial identification information pre or post-hiring in an inappropriate
manner, and they were encouraged to explain that a government mandate required them
to collect this information. Additionally, employers were cautioned to segregate any
racial information collected from a worker pre or post hiring, lest the employee‘s racial
identification become a basis for discrimination.
Third, while the new data collection regime privileges employee dignity and
privacy over other important issues, it is also equally clear that the government has
certain countervailing interest that limits its willingness to accommodate employees
dignity claims in certain circumstances. For example, when the individual declines to
identify his racial status, or it becomes impracticable for an employer to collect this
information, the employer is required to address the government‘s need for a complete
data set by resorting to visually surveying his workers. The employer cannot simply
decline to provide information about a particular group of employees. The regime
therefore implicitly recognizes that an individual can be required to bear the burden of
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involuntary racial classification to assist the state in its goal to eliminate race
discrimination. Also, the EEOC‘s decision to allow employers to challenge ―racial
fraud‖ also reveals that the employee‘s ―right to self identification‖ is limited. In these
circumstances the government is apparently protecting its interest in an accurate data
count from individuals engaged in making strategic identity claims. These
understandings about the limits on employee‘s right to self-identification would provide
fertile ground for discussion of countervailing interests and pressures that counsel against
an understanding that an employee should have broad unfettered rights to determine how
his racial identity is understood. 61
However, thus far they have not been a part of the
discussion about elective race understandings.
Fourth, the new EEOC data collection regime seems to create a right to racial
self-definition with a strange underlying valence. For this right to is premised on the idea
that the employee is entitled to quasi- public recognition of his or her chosen racial status
— by requiring the government and the employer to honor her identification choices.
However, the regulations also seemingly demand that an employer respect the
employee‘s right to racial privacy by segregating the employee‘s racial information.
Indeed, some cases have read the regulations as placing an affirmative duty on the
employer to prevent an employee‘s racial identity choices from being discovered. 62
These warring demands for recognition and privacy would not be inconsistent if the
employer was simply viewed as a temporary custodian, forwarding the employee‘s
private identity claims to the government. However, this is not the way that the racial
data the EEOC requires to be collected is ultimately used by the employer. Rather,
employers are expected to pay attention to this data, to head off discrimination patterns
once they see them developing and take any necessary action. Consequently, the
employer negotiates a strange process which both charges him with making use of this
racial data all the while keeping it confidential from other decision-makers.
In short, the EEOC data collection efforts show clear evidence of the influence of
elective race, but the regime also reveals certain tensions in the interests elective race
plaintiffs bring to bear when they claim a privacy interest in racial information. Our
analysis next moves to a micro-level analysis, considering the ways that individuals
negotiate this EEOC granted right to racial self definition. . As Part C shows, while the
EEOC‘s move to recognize individuals‘ interest in self definition is well founded, it is
profoundly naïve about how individuals vindicate this interest. Part C also considers how
employers may respond to their responsibility to collect, police and process racial data,
and the ways in which their obligations have implications for their won identity projects.
Section C. Elective Race on the Ground: Popular Perceptions
61 What is troubling about this default built into the data collection regulations is that it tends to muddy the
data collected. For, by allowing the employer to resort to using visual surveys to racial categorize
employees, the EEOC ensures that the data set it collects is a mix of private race understandings (reports on
self definition) and data derived from social race understandings. 62 Responding to a proposal that would offer a multiracial box followed by the additional question of the
respondent's component racial ancestry, Susan Graham of Project RACE stated that it would be ―an
invasion of privacy with no justification‖ to have mixed-race people mark the component categories of
their racial ancestry. Multiracial Hearings, supra note 190, at 120
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Although most of the scholarly discussion about elective race has focused on
multiracials, the interests addressed by this ideological framework for understanding race
is likely to appeal to three, partially overlapping categories of workers: 1) multiracials; 2)
monoracial persons with phenotypically ambiguous characteristics and 3) conscientious
objectors to American racial and ethnic categories. Section C treats each constituency in
turn.
1. Multiracials and Elective Race
The law review literature discussing discrimination against multiracials is
relatively small; Nancy Leong offers the detailed treatment of multiracials discrimination
claims, focusing on TitleVII. Leong‘s work on multiracials‘ discrimination experiences
and their concerns about racial data collection regimes is the first step necessary to render
visible some of the special concerns multiracial face when they attempt to honor their
multiracial heritage. Leong‘s account of this problem compellingly documents the trials
and tribulations faced by multiracial persons who identify as multiracial in the workplace.
Her work emphasizes how elective race, the decision to self-identify as multiracial, can
have material consequences, and that Title VII doctrine currently is insufficiently
nuanced to attend to multiracials‘ needs. However, Leong‘s analysis tells only part of the
tale necessary to understand the challenges multiracials create for antidiscrimination law.
For sociologists have discovered that many multiracials, rather than self identifying as
multiracial, engage in a variety of racial identification strategies. When their physical
characteristics allow them to do so, they will often migrate between different monoracial
racial categories and make inconsistent identity decisions. As a consequence, this
constituency presents special challenges for antidiscrimination law.
In their seminal article, Chamelon Changes, Miville, Constantine, Baysen and
Lloyd provide further insight into the complex process multiracials engage in when faced
with questions regarding racial identity. The researchers conducted detailed interviews
with 10 multiracial adults and found that many of their interview subjects freely admitted
to variously identifying as monoracial or multiracial depending on the context in which
they found themselves.63
The researchers also discovered that several individuals seemed
disinclined to openly identify as multiracial, explaining that the multiracial designation
was primarily a way they privately described themselves, but was not a label they
claimed in public contexts. The authors also discovered that a wide range of factors affect
multiracials‘ decisions about racial identity, including demographic variables, social
habitus (the racial composition of the social network one lives in), and the presence of a
visible multiracial community. The researchers‘ interview subjects explained that, when
they found themselves in contexts that did not seem to support racial ambiguity, they
tended to opt into a monoracial category. Finally, the interviewees noted that experiences
63 See Miville, Chameleon Changes at 514-516 (describing some multiracials decision to simply gravitate
back and forth between monoracial identities as a ―protean identity‖). As Rocquemore and Brunsma
explain, some multiracials ―move fluidly between black, white, and/ or biracial identities, calling forth
whatever racial identity seems situationally appropriate in any particular interactional setting and cultural
community.‖
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24
with racism tended to play a key role in motivating those who might otherwise have
identified as white to choose to adopt the same racial identity as a minority parent. 64
Although the Miville sample size was small, their results have been confirmed in
larger scale studies. In perhaps the most comprehensive study of the subject, sociologists
David Harris and Jeramiah Sim reviewed the conflicting racial self-identification
decisions of multiracial teenagers by examining the survey results from a representative
sample of 18,924 teenagers who responded to the Longitudinal Study of Adolescent
Health. The survey requires respondents to complete multiple questions that ask
individuals to identify by race, and to complete these identity questions in different
environments. Consequently, Harris and Sim were able to use the survey to track
whether multiracials tended to adopt a consistent approach in answering self-
identification questions.65
Harris and Sim discovered,66
that many individuals who
claimed a multiracial identity in at least one context chose a monoracial identity when
asked the same question in another environment.67
For example, while 6.8% of the
teenagers in the national sample identified as multiracial when asked about race at school,
only 3.6% reported being multiracial when asked to identify by race while they were at
home. Interestingly, only 1.6% of their sample identified as multiracial in both contexts
(in home and at school)! Even worse, only 1.1% of the sample identified themselves as
having the exact same racial ancestry when asked these same self-identification questions
in different contexts. Taken together, the data reveals two problems multiracials present
for antidiscrimination law, neither of which has been analyzed in the antidiscrimination
literature. First, multiracials make different racial identity selection decisions in different
environments. Second, multiracials often choose single racial identity categories to
describe themselves in data collection forms, despite their private commitment to
describe themselves as multiracial.68
Further proof of multiracials migration between different race categories was
provided by other data in the study. Sim and Harris discovered that some apparently
64 Miville, Chamelon Changes at 514-516. 65 Harris & Sims, Who is Multi-racial at __ (discussing inconsistent racial self identification decisions of
multiracials and noting responses depended on context in which questions were asked) Specifically, the
teenagers surveyed were asked to complete racial self identification questions at home, at school, a third
response was to be generated by the primary caretaker of the child, and a separate response required each
multiracial adolescent to ―select the racial category that best describes them.‖ 66 See Kerry Ann Rockquemore & David L. Brunsma, Socially Embedded Identities: Theories, Typologies,
and Processes of Racial Identity among Black/White Biracials,
43 The Sociological Quarterly, 335-356 (2002) (describing this in discussion of black biracial persons as a
kind of protean identity) This protean identity allows individuals to ―move fluidly between black, white,
and/ or biracial identities, calling forth whatever racial identity seems situationally appropriate in any
particular interactional setting and cultural community.‖
67 8.6% of survey respondents reported being multiracial when questioned at school. In contrast, only 1.6%
reported themselves as being multiracial in both contexts. (619). Moreover, only 1.1% selected the same
combination of racial categories in both home and school responses. 75% of the persons reporting that they
were multiracial at school were not reporting that they were multi-racial when polled at home. 54% of
those who reported that they were multiracial at home did not report that they were multiracial at school. 68 See, e.g.It Matters How and When You Ask: Self-Reported Race/Ethnicity of
Incoming Law Students
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25
multiracial teenagers did not identify as multiracial at all, but instead signaled that they
had a mixed race background by shifting which monoracial identity they claimed when
asked to racially self identify in different social contexts. 69
Importantly, the researchers
noted that this mixed race population tends to be wholly invisible in studies where
individuals‘ responses are not compared across context; they are silently absorbed in
statistics reporting the number of persons in categories. 70
Again, this phenomenon has
not been remarked upon in the law review literature on multiracials and their experiences
of discrimination. Instead, discussions has focused on the consequences of identifying as
multiracial at work and the doctrinal problems multiracials encounter when they raise
discrimination claims.
Sim and Harris offer some insight into the reasons behind multiracials‘ shifting
identification decisions, ones that add additional nuance to our understanding of elective
race, and warn against simple acceptance of documentary race statistics. They authors
explain that demographic factors account for some of the variations they found in
multiracials identification patterns.71
They also noted that different testing instruments
can shape the responses a multiracial respondent will provide. However, their most
important insight was that individuals seemed more willing to claim a mixed race identity
in circumstances in which they believed that the identity claims they were making could
not be easily attributed to them. That is, individuals were more willing to identify as
multi-racial when they believed that there would be no social or material consequences
that flowed from invoking a mixed race identity. Harris and Sim also discovered that
respondents‘ identification patterns indicated that many treated documentary race as an
69 2.6% of respondents shifted which mono-racial group they identified with when their home and school
responses were examined. The authors note that this group of multiracials is wholly invisible
(indistinguishable from mono-racial respondents) in studies that do not compare racial self identification
decisions across context. (629) 70 See Blurred Boundaries at __.
―If it‘s the Junior League or something like that, I probably would put white and ignore the Hispanic part.
Because I feel like people there would judge me, ―Oh, a Hispanic, how nice, what diversity‖ [sticky sweet
and sing-song voice]. In high school, I played tennis a lot and we‘d go to the tennis club in Monecito
[high class neighborhood]/ I wouldn‘t highlight the Mexican part . . . .I don‘t need that kind of judgment.
In those situations I‘d probably just put white. Then white-slash Mexican American probably for job
applications or [if] I feel like people really would have an open mind or encourage diversity.‖ [Blurred
Borders at 61]
71 For example, family structure plays a role. [Longitudinal Study (summarizing others)] Persons from
single parent homes were more likely to identify as multiracial versus dual parent homes. [Longitudinal
Study (summarizing others)] Other researchers, concentrating on adult multiracials, have found evidence
that social class plays a critical role, with wealthier individuals being more likely to claim mixed race or
White identities. Finally, all of these self- identification decisions are deeply affected by the individual‘s
phenotype; the morphologically ambiguous apparently feel better able to make complex and shifting racial
self definition decisions For further discussion see Aaron Gullickson & Ann Morning, Choosing Race:
Multiracial Ancestry and Identification, 40 Social Science Research 98–512 (2011) (explaining that
multiracials with Asian ancestry are more likely to claim a multiracial identity that mixed race people of
combined black and white or white and Native American ancestry). Gullickson and Morning call for more
research into the identification patterns of mixed race people based on racial background) ; Carolyn
Liebler, Ties on the Fringes of Identity, 33 Soc. Sc. Res. 702-723 (2004)(noting that racial identification
among people with mixed-heritage is affected by the social world beyond individual psychology and racial
ties within the family)Longitudinal (summarizing others)
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26
expression of private race, rather than public race. Stated simply, they preferred to use
data collection processes to reflect on how they defined themselves in racial terms rather
than using documentary race to identify how they preferred to be racially identified in
public settings. This insight should raise concerns about whether the EEOC‘s current
racial data collection procedures are actually testing for the racial self identification
information that they are most interested in securing. For, even if the EEOC feels that it
is important to collect information about public race (how multiracials are willing to
identify in public life) as opposed to social race (how they are regarded by others) it is
not at all clear that the focus on documentary race responses will provide the agency with
the information it seeks.
The sociological research on multiracials also should cause us to more closely
consider the political context in which multiracials‘ racial self identification decisions are
made. For we must recognize that voluntary identification with a particular racial group
is a directly tied to contemporary social structure and political culture. Indeed, when one
punctures the expressive claims made by those invested in procedures that allow for
racial self-identification, one finds that many of these multiracial individuals choose
whiteness, and see their decisions as purely innocent and expressive in nature. However,
Harris‘s and Sim‘s analysis encourages us to see these identity claims as a product of
social structure. Indeed, these identity decisions may be the most profound evidence we
have of the continuing influence of ―white privilege,‖ namely that we are living in a
society in which individuals believe that there is value in many circumstances in being
recognized as a white person. 72
. Tanya Hernandez expands on this claim, arguing that
there is a ―desire for whiteness‖ even behind individuals‘ self identification claims when
they choose a multiracial identity, as the multiracial category preserves the individual‘s
partial link to whiteness, and this partial hold on whiteness is still perceived to confer
status benefits. 73
Multiracials tendency towards chameleon changes — their shifting claims about
racial identity, may turn out to be a behavior pattern that is more common than currently
believed, as there is evidence that this desire to shift identities affects monoracial persons
as well. Some report that multiracials increasingly complex identity claims are
72 The literature on mixed race phenotypically ambiguous persons who socially identify as white has
typically been discussed under the rubric of ―passing.‖ Passing is described it as an active process of self-
definition, one that requires selective disclosure and concealment. See e.g., RANDALL KENNEDY,
INTERRACIAL INTIMACIES: SEX, MARRIAGE, IDENTITY AND ADOPTION 285 (2003) (arguing that ―passing
requires that a person be consciously engaged in concealment.‖) See also, Randall Kennedy, Racial
Passing, 62 Ohio St. L.J. 1145, 1145 (―Passing is a deception that enables a person to adopt certain roles or
identities from which he would be barred by prevailing social standards in the absence of his misleading
conduct.‖); Shannon Elizabeth Rush, Equal Protection Analogies-- ―Passing”: Race and Sexual
Orientation, 13 HARV. BLACKLETTER L.J. 65, 70 (1997) (―Passing reflects the individual's attempt to gain
acceptance by hiding his or her identity and conforming to the dominant culture's expectations.‖); Robert
Westley, First Time Encounters: “Passing” Revisited and Demystification as a Critical Practice, 18 YALE
L. & POL'Y REV. 297, 307 (2000) (―‗Passing‘ has been defined as crossing the race line and winning
acceptance as [W]hite in the [W]hite world.‖); Kevin Noble Maillard, An Anatomy of Grey (distinguishing
between active and passive ―passing‖) 73 Tanya Katerí Hernández, ―Multiracial‖ Discourse: Racial Classifications in an Era of Color-Blind
Jurisprudence, 57 Md. L. Rev. 97 (1998); Hernandez, The Diversity Defense at 266.
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27
prompting technically monoracial people people to mine their personal histories in search
of some minority or ethnic connection as well. As legal scholar Bhatnagar Manav
observes, we must learn to negotiate these changes in how individuals see racial identity
and how these understandings affect the process of racial self identification. He argues
that we are no longer living in a world in which people recognize clearly defined racial
groups and make racial self identification decisions are based on publicly observable
actions and/or connections to these groups. Rather, he explains, racial self definition has
become a far more subjective, complicated process. Manav believes that some of these
complicated identity claims made by monoracial individuals are aspirational; they are
made by white persons attempting to flee from the culturally bleached out existence
associated with whiteness. In other cases monoracial whites that make complex racial
identity claims may be involved in a more suspect inquiry, mining their past for evidence
of minority roots, with the hope of securing affirmative action benefits. Yet other
monoracial whites who engage in this behavior may simply be confused, ambivalent, or
non commital, and envy the chameleon changes multiracials can engage in as they move
between contexts. However, as more technically monoracial individuals make complex
racial self identification claims, Title VII will have to accommodate these new elective
race understandings.
Armed with this understanding of the multiracials and others responses to
questions about documentary race, the EEOC‘s data collection proceedures raise some
clear concerns. For the EEOC data collection regime apparently conflates four different
interests: private race, documentary race, social race, and public race, and assumes that
asking about any of these four racial self identification interests will always cause
individuals to make the same racial self identification decisions .74
That is, the
government assumes that if one is asked about one‘s privately held racial beliefs, these
views easily can be collected in the standard data collection form used to record
documentary race. However, as the above discussion shows individuals often experience
frustration and confusion when presented with racial data collection instruments.
Additionally, their answers to these questions change depending on the form and content
of the data collection form.
While research suggests that the responses given for the purposes of documentary
race do to some degree reflect an individual‘s private views about his or her race, this is
only true as long as the identification decisions being solicited are deemed by
respondents to not have any significant social consequences. For individuals may make
different decisions about how to racially represent themselves in response to a particular
racial data collection inquiry, depending on how they believe their responses will be
used. These considerations about private race and documentary race also counsel that an
individual‘s racial self designation decisions may not match up with his or her social race
—how they are viewed by others. As Section B illustrates, the EEOC historically has
been primarily concerned with social race but it can no longer assume that the employee
data it collects will provide it with information about social race in its traditional form.
74 Nancy A. Denton, Racial Identity and Census Categories: Can Incorrect Categories Yield Correct
Information?,
15 LAW & INEQ. 83 (1997) (articulating the importance of the difference between
social and individual identity)
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Finally, the current data collection regime apparently does not collect data about public
race — the race one is willing to present oneself as in public life, as when people produce
answers about documentary race they tends to focus on private race considerations. All
of these insights suggest that we should approach the racial data collection procedures
used by the EEOC inquiry with a more careful eye, as the EEOC may be testing for a
variety of important issues, but they are not the ones that the EEOC perhaps intended.
2. Phenotypically Ambiguous Persons and Elective Race
The story about multiracials‘ tendency to switch racial categories may not be
surprising to some readers but even persons with a fairly sophisticated understanding of
the politics of self identification are surpised to discover that these identity shifts can
occur with monoracial racially liminal persons as well. Persons who technically are
monoracial but whom have racially ambiguous phenotypical characteristics, may
experience what sociologists call ―flexible ethnicity.‖ That is, these individuals may
privately identify as a member of a racialized minority, but they are routinely
misperceived as belonging to another racial group in normal social interactions. Also,
many of these individuals do not try correct third parties when they are misrecognized as
a member of another racial group, yet they do not perceive themselves to be actively
―hiding‖ evidence of their true racial identities. At present, the antidiscrimination
literature might describe these individuals as attempting to ―racially pass;‖ however, I
believe that the identity issues involved here are more complex than provided for in an
account of passing.
For example, sometimes a racially liminal individual discovers that she has been
racially misrecognized, and consequently has enjoyed social privileges otherwise
unavailable to her group, but as never made a conscious decision about ―passing.‖ For
example, sociologist Jessica Vasquez in her article Blurred Boundaries reports on the
problems encountered by Mexicans in the workplace as they are confused with other
racial groups. One young woman explained,
―I had some really uncomfortable situations with people thinking that I was not Mexican.
. . . I was hired as a waitress by a Middle Eastern family and they hired me thinking that
I was Greek or Persian. I started speaking Spanish to the busboys and they were like,
―Why the hell are you speaking Spanish? You can‘t be Mexican.‖ And basically went off
on me about how they probably wouldn‘t have hired me if they had known I was
Mexican.‖75
The question is do racially ambiguous individuals have an obligation to ―correct‖
others‘ misperceptions when they are racially misclassified? Do they have an obligation
to ―come out‖ as a person of color even when they know that they may be subject to
discrimination after correcting this kind of mistake? .76
What kind of burden does this
create for the racially liminal person, if we charge him with a duty to continuously and
perpetually remind persons about his race, in order to provide a clear record about his
75 Blurred Boundaries at 53. 76 Jessica Vasquez, Blurred Boundaries for Some but Not “Others”: Racialization, Flexible Ethnicity,
Gender and Third Generation Mexican-American Identity, 53 Sociological Perspectives 45-74
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experiences of discrimination. Charging a racially liminal individual with this kind of
responsibility seems strange, especially when it may be clear to many workers in his
workplace that he is a member of a minority group. Also, we must consider, would a
worker that took this obligation of disclosure seriously look to us like a normal, average
worker or, would he look like a worker that is inappropriately preoccupied and anxious
about race?
Additionally, it is helpful to consider why a racially ambiguous worker might fail
to correct third parties‘ erroneous assumptions about his social race, as these insights
might helps us determine how to address discriminatory dynamics in the workplace.
Numerous antidiscrimination scholars have discussed the role aversive racism and
implicit bias play in shaping minority workers‘ experiences. The racially liminal worker
can avoid these problems as long as he does not take on the mischaracterization of his
race directly. 77 Relatedly, the racially liminal worker has the ability to avoid stereotype
threat, as he does not feel the anxieties caused by knowing others are making
stereotypical assumptions about his racial group. Additionally, some employers and
employees still engage in explicit old style dominative racism (as opposed to aversive
racism) and psychologists report that they are only explicit about their racist attitudes in a
perceived mono-racial environment.78
Consequently, it is reasonable to conclude that
racially liminal workers that allow themselves to be misrecognized may do so because of
their superior knowledge regarding the extent of racially discriminatory animus in a given
workplace. 79
That is, by virtue of their phenotypic ambiguity these individuals are often
specially privy to facts establishing the extent and nature of race discrimination in their
current place of employment. In this context, one may rationally fear ―coming out‖ to
one‘s coworkers‘ and making a disclosure about one‘s true racial identity. Again,
traditionally race scholars have characterized individuals who are not clear about their
minority ancestry as people who are guilty of ―racial passing;‖ however, this accusation
seems unhelpful in understanding contemporary workplace dynamics and the incentives
they create. Rather, we might also understand these individuals‘ behavior as a response
to concrete evidence that ―white privilege‖ has been established in some form in a
particular workplace. If antidiscrimination scholars and Title VII plaintiffs can find
another language to describe these racially liminal workers‘ experiences they may
discover them to be valuable allies, as these racially liminal workers often will be able to
provide strong evidence establishing the presence of anti-minority racism in a given
workplace.
1. Contentious Objectors to American Definitions of Racial Identity.
The last group of individuals that face challenges under a regime of elective race
are persons that do not feel that the current configuration of racial categories adequately
describes their personal (private) views about race. Consequently, they are forced to
77 Margaret Shih, Courtney Bonam, et. al. The Social Construction of Race:Biracial Identity and
Vulnerability to Stereotypes,13 Cultural Diversity and Ethnic Minority Psychology 125 (2007) (noting that 78 79 As one light skinned Mexican American man explained ―I‘m usually perceived as white. So I hear all
the jokes. That‘s not an advantage. Blurred Boundaries at __.
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describe themselves imperfectly, and they do so in ways that may cause problems for
themselves later when they raise discrimination claims. Legal scholar, John Tehranian
discusses how this phenomenon affects Middle Eastern persons. He explains that,
although Middle Easterners are technically asked to identify as white, many Middle
Eastern persons resist this designation. For those that submit to a regime that requires
them to identify as white persons, they may encounter problems when they bring
discrimination claims as to whether they actually have a claim for ―race‖ discrimination.
This same problem affects Latinos who for cultural reasons may not want to make
the racial election decisions required by American racial categories. Specifically,
currently most racial data forms ask Latinos to indicate if they are Hispanic first, and then
to choose a racial category, with the expectation that those who are socially recognized as
white will choose to self identify as white. Yet many Latinos resist being categorized as
white, and they elect or choose ―other race‖ when ―other race‖ is an available option.80
Other Latinos (particularly newer immigrants) may answer racial data collection inquiries
using their own culturally specific definitions of whiteness, but their views may not
match up with American cultural expectations for whiteness.81
Courts that subsequently
encounter these individuals have trouble understanding their allegations when they claim
they were discriminated on the basis of race since, technically, they are in the same racial
category as the non-Hispanic white persons whom they allege received better treatment.
The potential for Latino plaintiffs to incorporate culturally specific definitions of race
into their responses to racial data collection inquiries raises further questions about the
integrity of the EEOC‘s current data collection efforts. Here again we see that the
communities and constituencies that are being asked to self identify by race draw our
attention to elective race struggles that are not well addressed by the current
antidiscrimination literature.
Part II. Applying An Elective Race Framework: New Concepts & New
Horizons for Discrimination
Part II explores the primary claims that thus far have surfaced involving elective
race, showing how plaintiffs motivated by this understanding of race raise complex
conceptual questions about racial identity, racial privacy, racial commodification and self
determination. Although the discussion focuses on cases involving formal administrative
inquiries about racial self identification, these procedures are not always at issue in the
elective race cases. Rather, in some elective race cases, the individual‘s social race fails
to match his private conception of race, and the discovery of the disconnect triggers
social sanctions. In other cases, an individual reveals his public sense of race, only to
have that claim rejected by others who deem his social race to place him in another
category. Collectively, however, all of these cases raise similar dignity, autonomy and
privacy questions that unite them as elective race cases.
A. Multiracial Plaintiffs and Elective Race: Revisiting Longmire
80 2000 Census Report 81 2000 Census Report; NYT article
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How would an understanding of elective race assist in the analysis of the
Longmire case? First, the elective race account would recognize Longmire‘s claim as
alleging a dignity interest in controlling the terms on which his body was racialized in the
workplace, a common theme with multiracial and phenotypically ambiguous persons. It
explains why Longmire believed that he had the right to disclose his mixed race
background in discrete contexts, and yet maintain a continuing right to ―racial privacy‖
with regard to certain co-workers. The self-definition interests core to elective race help
us explain why Longmire believed that his employer‘s threat of disclosure was a legally
sanctionable action. For forced disclosure of private racial information strikes deep at the
dignity interest he has in racial privacy. Finally, elective race focuses our attention on
the timing and consequences of ―voluntary‖ disclosure of racial information. For
Longmire‘s disparate treatment claim concerning his pay started when his employer
learned his ―true‖ racial identity.
With this more nuanced understanding of the nature of his claim, the court‘s
analysis should turns to whether Longmire‘s right to racial self definition was violated in
a way that offends the equality norms of workplace discrimination laws like Title VII.
The touchstone issue, as in all race discrimination cases, is whether he was subject to
discriminatory treatment because of his race. Our understanding of elective race,
however, counsels that contrary to existing court doctrine, his racial identity is not a
―fact‖ that must be decided by the court. 82
Instead the only question in his case is what
race his employer regarded him as being, and whether the employer‘s abusive treatment
stemmed from that understanding. With these understandings, Longmire‘s case becomes
a simple pay equity case, requiring that his compensation be compared to the
compensation of similarly situated his white coworkers. Additionally, his so-called
―racial privacy‖ claim is converted into a hostile environment claim, which examines
whether his employer‘s threats about the disclosure of his mixed race background were
undertaken because of a desire to subordinate him based on race or because his race made
him uniquely vulnerable to this kind of coercion.
As shown above, the primary benefit elective race brings to the Longmire case is
that it reduces the amount of background noise that unnecessarily complicates the court‘s
analysis. The court was seemingly distracted by the fact that Longmire had
inconsistently identified as white and black, and seemed to interpret these facts as
demonstrating that his claim regarding coercion about his racial identity was inauthentic.
However, the elective race framework counsels that we should expect these varying
racial identification decisions from multiracial persons, and we should expect a biracial
black person to shift to a black or African American identity after he concludes that he
has experienced discrimination.
Additionally, the court appeared offended by the idiom Longmire used to
articulate his claim, namely a racial privacy interest. The court explained that it could
identify no federal or state authority which established that the employer‘s disclosure of
82 (rejecting plaintiffs claims for eligibility for employer‘s affirmative action program because the workers
had identified as white)
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the plaintiff‘s racial background violated a legally protected interest.83
Yet this
conclusion ignores substantial legal authority recognizing that plaintiffs do enjoy such an
interest. Court have recognized racial privacy claims under Title VII when employees
allege that facts regarding their documentary race were improperly disclosed and led to
employment discrimination.84
These claims are based on the abovediscussed EEOC
guidelines which provide that records pertaining to an individual‘s racial identification
decisions should be kept separate from his employment records, to ensure that his
disclosure does not give his coworkers a basis for race discrimination.85
Finally, other
aspects of the data collection procedures provide further evidence to support the view that
employees do have some right to racial privacy. For the detailed guidelines regarding the
manner in which employees may be questioned and the confidential maintenance of
racial data would be unnecessary if we believed that employees had no privacy interests
in racial information.86
Courts prepared to recognize a racial privacy interest under Title VII will face
challenges in sorting through the scope of this interest, as well as the implications of
racial privacy claims. Yet the tenor of this racial privacy claim, the idea that one has a
right to keep one‘s race a ―secret,‖ will strike some readers as disturbing or profoundly
strange. The elective race framework makes the conflict at the heart of Longmire
explicit. For Title VII explicitly recognizes this right to privacy, secrecy or racelessness
by requiring racial data to be segregated from a candidate‘s employment application. In
this way, the elective race framework reveals that the racial privacy claims of elective
race plaintiffs are actually entirely consistent with the promise of ―racelessness‖
embedded in the colorblindness discourse at the heart of Title VII. Still, elective race
plaintiffs like Longmire will continue to face questions about their ―racial privacy‖
claims because these claims violate our cultural understanding that one‘s race should not
be a source of shame and that Title VII was not intended to protect an employee‘s interest
in keeping his race hidden. But closer review of Longmire‘s case shows that he shared
this general cultural understanding and was not ―ashamed‖ of his race. Rather, Longmire
attempted to to share information about his racial identity with those whom he believed
would not subject him to race discrimination, and to keep this information from persons
whom he believed would potentially subject him to bias.
B. Conscientious Objectors to American Definitions of Race: Padilla v. North
Broward County
83 The court notes that the plaintiff does not point to any authority that suggests that New York State‘s
Human Rights Law or Section 1981 protect one‘s interest in keeping racial identity private. It further
rejects the constitutional claim he raises, alleging that racial identity issues fall within a zone of privacy. 84 85 86 Robinson v. Adams 847 F.2d 1315 (9th Cir. 1987)(recognizing validity of claim regarding improper
disclosure of his race on employment application but dismissing claim because of lack of proof showing
that decision-makers were aware of the racial disclosure on his employment forms); Abrams v. Kelsey-
Seybold Medical Group, Inc., 178 F.R.D. 116 (1997)(class action raising identical racial privacy claim
based on disclosure of race on employment forms)
October 13, 1987
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Our next elective race case concerns a contentious objector to American norms
regarding racial categorization. In Padilla v. North Broward County Hospital a Hispanic
worker brought several Title VII claims against his employer after the employer
terminated him in connection with an ―efficiency motivated‖ reduction in workforce
study. Padilla alleged that he was subject to discrimination based on his race, as a white
person, and as a Latino. He also filed a retaliation claim, arguing that he was terminated
for challenging his employer‘s attempt to police his expression of racial identity. The
dispute in the case centered on events in connection with certain diversity reports the
Broward hospital periodically generated. When plaintiff was asked to racially self
identify for one of these reports, he indicated that he was a white person. His employer,
believing that this racial designation was a mistake, contacted Padilla‘s manager and had
Padilla reclassified as Latino. The employer copied Padilla on the email indicating the
change. Padilla was offended, and he filed a formal complaint about the change with
Human Resources several months later. When the employer decided to terminate certain
employees in connection with the ―reduction in workforce‖ study, it terminated Padilla.
The employer then reallocated Padilla‘s responsibilities to two white workers: an Israeli
white person and a non-ethnic white person. The employer also retained another IT
worker in Padilla‘s department who identified as Latino. Padilla alleged that he was
terminated because he opposed his employer‘s attempt to reclassify him as Latino. He
argued that, because he refused to submit to the employer‘s power to determine his race,
he was deemed expendable.
Moving swiftly through the elements of the McDonald Douglas test for disparate
treatment claims, the court explained that Padilla‘s disparate treatment claim should fail,
as he had not shown that he suffered an adverse employment action.87
Rather, the court
explained, his responsibilities were merely reallocated. Stated simply, the court found
that Padilla had not shown that he was denied a position because he was Latino, as his
position was not given to a person outside of his protected class. Also, the court
explained, Padilla had not shown that discriminatory animus motivated any potential
adverse employment action that had occurred, as his employer had retained people from
both of the protected groups he claimed membership in: two white employees and a
Latino person. Finally, it disposed of Padilla‘s retaliation claim by arguing that he had
not shown that he was retaliated against for engaging in ―protected activity.‖ In the
court‘s view, Padilla had no right to challenge his employer‘s determination that he was
Latino, as his employer was wholly within his right to reclassify Padilla as Latino in
order to ensure that the racial data it collected for EEOC reporting purposes was
technically accurate.
How does the elective race framework assist us in analyzing Padilla‘s case? First
the framework draws our attention to the Padilla Court‘s hostility to complaints about
reclassification and its frustration with the plaintiff‘s seemingly complex racial identity
claims. The court noted that, it was ―puzzling that Plaintiff would complain about being
87 As an initial matter the court expressed skepticism about Padilla‘s national origin claim, arguing that if
Padilla did not perceive himself to be Latino, it defied logic for him to bring a national origin
discrimination claim premised on his status as a Latino person. However, the court then seemingly
brackets this issue, deciding that Padilla would be treated as white and Latino for the purposes of his claim.
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classified as Hispanic, as opposed to white; then base a retaliation claim on that
complaint; all the []while, alleg[ing] reverse discrimination against individuals classified
as both Hispanic and white.‖ The court explained, ―this makes little sense. If plaintiff
claims that both Hispanics as well as whites were equally discriminated against – as he
does – the change in Plaintiff‘s classification from white to Hispanic is meaningless in
the context of his discrimination claim.‖ Importantly, the court appears to believe that
Padilla was engaged in gamesmanship, invoking minority identity when it seemed
advantageous to him, even though his shifting identity claims seemed to make his
complaint unintelligeable. An understanding of elective race reveals, again, that
individuals may settle on a minority identity after having experienced discrimination.
Additionally, the elective race framework teaches that plaintiffs may make the decision to
invoke a particular racial identity out of necessity, even if the identity claim does not
match with their personal views about race. Here, because the employer‘s perception that
Padilla was Latino was an important part of the case, Padilla may have concluded that he
was more likely to succeed if he complied with this social race understanding. This issue
requires further discussion.
The Padilla Court is plainly confounded by Padilla‘s self identification decisions
at work and in his filings with the court. Yet the confusion in this case evaporates when
we break down Padilla‘s self identification decisions into their component parts. For
Padilla filed his suit based on his ―social race,‖ as his putative social race was central to
his allegations. However, for personal identity reasons, he likely also felt compelled to
file a claim based on his ―public race‖ the identity he wanted to be recognized as in
public settings. Indeed, Padilla‘s investment in being recognized as white— his desire to
control his public race, helps us to understand why Padilla was so shaken by his
employer‘s decision to force him to be counted as Latino. For the employer effectively
publicly refused his claim to whiteness. He publicly policed Padilla‘s identity claims and
racially subordinated him by forcing him to comply with the employer‘s understanding of
his racial identity. One could also describe the case as one involving status contests
between high status whites and low status or marginal whites, a framework I explore in
my other work.88
However, here we concentrate on the autonomy issues raised by racial
self identification, the core of the elective race framework.
The elective race framework also focuses our attention on the employer‘s
―power‖ to redesignate an employee as a possible source of abuse. For the court states
that it was not reasonable for Padilla to believe that he was engaged in protected activity
when he opposed his employer‘s redesignation decision.‖ As the court explains, it is not
―protected activity for an employee to oppose accurate diversity reporting.‖ Citing the
pre-2006 regulations, the court explains that employers have the right to visually survey
and classify employees.‖ Consequently, the court explains, the employer here was wholly
within his rights to reclassify a worker. Yet what the court fails to recognize is that the
88 In my other work, I discuss how there are gradations within the category of whiteness, with some whites
having lower status than other whites. Here the court failed to recognize that discrimination can occur
when employers make distinctions between low status ethnic whites (Hispanics) in favor of higher status
whites (here non-ethnic or Israeli whites). Using this framework, one sees that the discriminatory adverse
employment action in the Padilla case was that the employer decided to reallocate Padilla‘s responsibilities
to two higher status white persons.
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EEOC regulations say nothing about circumstances in which an employee has
specifically been asked to racially self identify— to choose his race, and then has his
racial identity decision publicly rejected and involuntarily changed. Because the court
fails to recognize the potentially injurious nature of this treatment, it fails to understand
the dignity injury that was the basis for Padilla‘s claim. Moreover, Padilla may have been
the victim of bad timing, as the EEOC guidelines changed in 2006, prohibiting such
changes to an individual‘s self identification decisions in the absence of ―racial fraud.‖
While not binding on the earlier dispute, these guidelines are persuasive evidence that
there was a real dignity interest at stake in the Padilla dispute, and that the employer‘s
action could have validly raised questions. Indeed, in other cases, filed apparently after
the change in regulations, employees have contended that employers have changed their
racial self identification forms in an offensive, aggressive and hostile manner.89
Unfortunately the Padilla Court fails to engage with the core legal questions in
the dispute. These questions include: Did the employer favor employees who made racial
election decisions that conformed with its view of race? Did it penalize employees who
challenged these understandings? Was the employer motivated to challenge Padilla‘s
racial election decisions because of its interest in posting strong numbers in its diversity
report? Was Padilla effectively commodified: did become a disposable employee once
he failed to serve the employer‘s diversity needs? These questions would suggest that
Padilla was subordinated based on his putative racial status, a question core to Title VII
and core to the elective race cases. Armed with a better understanding of the principles
of elective race, the court could have offered a more considered and better grounded
evaluation of his allegations. Even more important there are reasons to believe that
Padilla is not an outlier as in other cases where the employee‘s self designation decisions
are challenged, they often allege disadvantageous treatment that may be traceable to their
self identification decisions.90
C. Phenotypically Ambiguous Persons and Elective Race:
In our final set of elective race cases, we consider the allegations of a
phenotypically ambiguous person who alleged that he was subject to discrimination when
his employer learned of his racial identity or ethnic background. In Nieves v.
Metropolitan Dade County, the plaintiff raised a national origin discrimination claim
alleging that his employer failed to promote him to a Metro Bus Transit supervisor‘s
position because he was biased against Hispanics. The court questioned whether plaintiff
had even established a prima facie case, noting that ―he never listed himself as Hispanic
on his employment application,‖ and there was no credible evidence that he had ever
disclosed his Hispanic background to his supervisors.‖ The court explained that
―plaintiff may indeed be Hispanic, but it is difficult to see how his supervisor could have
discriminated against him on that basis if he was never made aware of that fact.‖
89 See Njenga v. San Mateo County Superintendent of Schools, 2010 WL 1261493 (N.D. Cal. March 30,
2010)(African employee alleges as part of national origin hostile environment claim that supervisor
changed her designation from African to African American) 90 See Cooksey v. Hertz, 2004 WL 1093674(E.D.N.Y. Jan. 24, 2004) (Native American plaintiff terminated
for alleged deficient performance after questions raised about why she did not identify as Native American
on self identification form).
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To its credit, the court‘s analysis seems to center on questions about ―social race‖
as it focused on whether there was sufficient evidence in the case for the employer to
perceive that Nieves was Hispanic or Latino. Consequently, it treated Nieves‘s self
identification decisions in racial data collection forms and his public declarations about
race as an important part of the determination as to whether his employer had notice
regarding his Hispanic background. However, curiously, as the court‘s analysis
progresses, it begins to substitute its own judgments about race in place of the more
relevant set of considerations: the racial lexicon of Nieves‘s employer. For the court
concluded that based on its examination of plaintiffs ―speech patterns, mannerisms and
pronounciation of the English language it was not apparent that [Nieves] was Hispanic.‖
Indeed, the court concluded that ―there was no outward indication of this fact of his
background.‖ Yet an understanding of social race would have caused the court to frame
this issue less an objective judgment, and more as a subjective inquiry about how
Nieves‘s was perceived in his own workplace. Had it done so, it might not have left out
one of the key determinants parties use in other contexts to establish that an employer is
aware of an employee‘s Hispanic background — that the employee has a Spanish
surname.
Here again, we see how the elective race framework helps to quiet background
noise that otherwise threatens to compromise the court‘s analysis of the Nieves case.
First, the court was of the view that Nieves‘s decision at the start of his employment to
check off white in his self identification form (without also including that he was
Hispanic) counted as persuasive evidence that he shielded information about his
racial/ethnic background from his employer. However, the elective race framework
teaches that employees may make inconsistent identification decisions for a host of
reasons: they may react negatively to the questionnaire format, they may be confused, or
they may be reacting to their own culturally specific racial understandings, and
consequently fail to fully describe themselves when responding to data collection
inquiries. The court also concluded that Nieves‘s failure to explicitly tell his employer
that he was Hispanic or document that he was Hispanic suggested that the employer had
no concrete basis for concluding that Nieves was Hispanic. The elective race
framework, in contrast, teaches us that documentary decisions regarding race can
influence an employer understanding, as do personal statements about race, but they are
not the most important consideration that determines the social race one is assigned.
Moreover, the court failed to take seriously Nieves claim that he had disclosed his racial
identity to other supervisors and coworkers, and that he could not recall if he informed
this specific supervisor of his racial identity. Importantly, the court does not consider how
its decision effectively places the burden on every racially liminal employees to
consciously and affirmatively announce their race with every person they encounter in
the workplace, in order to ensure that they have protected their right to allege
discrimination.
Finally, some might also be disturbed by the court‘s effort to make an objective
determination about whether Nieves‘ voluntary behaviors established that he was an
ethnically marked employee. Indeed, as suggested above, the elective race framework
suggests that the more proper inquiry in this case was whether Nieves‘s employer had
enough information— based on his subjective views, to conclude Nieves was Hispanic.
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Again, had the court engaged in a more studied inquiry regarding how Nieves‘s
supervisor identified Hispanic workers, the resources he tended to use to make these
determinations, it might not have overlooked one of the more obvious indicators of racial
status in the case – Nieves‘s Spanish surname. More specifically, an inquiry into the
supervisor‘s racial lexicon would have triggered the following questions: Did the
employer consider a Spanish surname as evidence of Hispanic background? Was it
reasonable to conclude that he never considered Nieves was Latino despite his name?
Also, the allegations in the case regarding why Nieves was not qualified for the position
raise the concern that Nieves was being raced even as the supervisor denied being aware
of Nieves‘s Hispanic background. That is, the court recognized that Nieves had a
―different personality‖ than his employer‘s more quiet style, and that he was ―brash and
aggressive.‖ While it may have been reasonable to deny Nieves a desired promotion if
his behavior violated some objective standard for appropriate deportment, the court
would have been well served by examining these allegations for racial stereotyping and
bias.
[EXPAND]
In other cases, an employee‘s documentary race decisions are strategically
deployed by the employer as a basis for challenging the plaintiff‘s standing to bring a
claim. For example, in Wood v. Freeman Decorating Services, an employer alleged that
a plaintiff‘s hostile environment claim alleging discrimination against Native Americans
should be dismissed because he had identified as Hispanic on his employment form.91
Plaintiffs allegations were that employees in his workplace clearly regarded him as
Native American as they continually insulted him using epithets about Native Americans.
The court rejected the employer‘s claim, explaining that plaintiff‘s voluntary race
performance behaviors raised a question of fact about whether he was regarded as Native
American. Certainly, Wood is a happy case, as the court permits the plaintiff to move
forward with his discrimination claim. However, one wonders whether Perkins would
have been successful if Perkins, like Nieves, did not engage in the race performance
behaviors that the court deemed to clearly signal racial or ethnic status. What would have
happened to Perkins if he was required to rebut the presumption that he was regarded as
Latino based on his self identification decisions? The elective race framework suggests
that courts should be careful about employers‘ attempts to use employees‘ racial
identification decisions in this adversarial manner, as they often test for personal
understandings that have no connection to social or public race.
D. Solutions: Potential Doctrinal Changes and Policy Changes [expand and use to
create Part III]
1. Doctrinal Issues
After reviewing the above cases, one might conclude that new Title VII doctrine
is necessary to accommodate the interests of plaintiffs whose claims sound in the nature
of elective race. However, Part II also makes it clear that many of the concerns raised by
these plaintiffs can be funneled fairly easily back into existing Title VII doctrine. For in
91 Wood v. Freeman Decorating Services, 2010 WL 653764 (D.Nv. Feb. 19, 2010)
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most circumstances, the dispute concerning an individual‘s agency to control the usage of
facts about his race can be reframed as a classic disparate treatment claim: the employer
refuses to allow the employee the same discretion other employees have with regard to
racial self identification decisions because of race. The additional analytic factor that
must be added to the analysis to make this clear comes from our understanding of
elective race. For example, the employer in Nieves, prohibits the employee from
identifying as white, because of perceive race – because he perceived Nieves to be
Latino. He would not have obstructed a non-marginal white person from making the
same election. Alternatively, these facts could be folded into a hostile environment
claim: when comments and treatment connected with the categorization process cause the
employer to make statements of subject the employee to abuse because of his perceived
status as a non-white person.
Courts however may want to make some slight changes to doctrine in order to
specially accommodate elective race plaintiffs‘ interests. That is, they may see the need
to recognize a racial privacy claim on the theory that the failure to observe these privacy
interests is based on race. Alternatively, they may want to create a presumption of
heightened suspicion about adverse employment actions that follow disputes about
categorization. Both of these changes would be more specifically attentive to the precise
interests elective race plaintiffs raise. (EXPAND)
2. Policy changes
The key issue in the elective race cases is that our move to a racial self
identification in Title VII data collection efforts has had unique consequences, ones not
raised in the context of Census data collection disputes. For, as the elective race cases
described in Part II show, the Title VII regime has taken an ironic turn: in our effort to
give employees more agency over the ways in which they are assigned a racial identity,
we have created a fundamental conflict between the employer‘s interest in counting raced
bodies and the identity performance interests of employees. For the employer must
worry about diversity statistics and may need employees with bodies raced in particular
ways to identify in a manner that matches their socially perceived identity category.
Even worse, the employer may engage in strategic decision-making, encouraging
employees with a tenuous connection to a racial group to identify as a member of that
racial group to improve the diverse numbers he must report to the EEOC. In both of
these circumstances, by giving the power to the employee to define his or her racial
identity, we have created a source of friction between the employer and the employee. In
our effort to create more freedom, we have placed the employee in a position where she
feels the full force of an employer‘s need or desire to effectively commodify his or her
racial identity.
How can we avoid this conflict between the employer‘s interest in diversity
statistics and the employee‘s agency and autonomy interests in self-identification? I
argue that the EEOC should switch to a two part process of racial identification: one that
requires the employer to do a visual survey and assign employees to a racial group, and
also collect data from the employees regarding their racial self-identification. While this
increases the employer‘s administrative costs, it does so only at the margins. Moreover,
it is important in an era when racial designations are changing to know how employees
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39
see themselves, as well as how they are likely to be perceived by co-workers or those
with decision-making power. Now that the genie of self identification has been let out of
the bottle, it will not be so easy to put her back in. We must make efforts to ensure that
by exercising this right to self identify, the employee is not subject to negative racial
animus. The negative animus I am concerned about here is not stereotyping in the
traditional sense (e.g. – making assumptions about the capacities or capabilities of people
of a given race) but, rather, stereotyping about the way people from a given racial group
should look. By rejecting the racial identity claims of a worker, the employer is engaging
in a kind of racial stereotyping, but this is not the kind of stereotyping that Title VII
historically has considered an issue. However, in many cases, an employee will be
subject to adverse treatment after making a disputed identity claim, and
antidiscrimination scholars and courts should be concerned about employers using racial
data collection efforts to police individuals‘ racial understandings.
[PART III – Draft post conference]
I welcome your suggestions about materials I should read as I think through the
problems and concerns posed by elective race. In the question and answer period after
my talk, I will cover some of the primary autonomy, privacy and dignity claims likely to
be raised by elective race cases, and my preliminary responses to concerns
CONCLUSION
This article has attempted to show how a comprehensive, nuanced understanding
of the ideological propositions that inform elective race will provide essential assistance
to courts and scholars analyzing future cases under Title VII, and indeed may help in
other areas of anti-discrimination law.92
As explained above, persons influenced by
elective race emphasize the dignity and privacy injuries that can arise in this process of
racial self identification, and the state‘s role and obligations in protecting individuals who
subject themselves to this process. In this discussion I have argued that the EEOC‘s
regulations on this issue further suggest that these views are reasonable, but also that the
dignity and privacy interests plaintiffs raise must be weighed against the equally critical
antidiscrimination purposes racial data collection serves for the state. I argue that
elective race understandings needs not cause us to abandon all data collection that calls
on employers to engage in ―involuntary‖ racial assignment and counting of their
employees. Certainly we are right to have lingering concerns about regulations that
require the involuntary racial categorization by employers and other legal actors, but we
must also learn to recognize distinctions between how one is counted for administrative
purposes and the freedom one has to define oneself. We are still in the process of
learning that being involuntarily racially labeled or categorized by a state actor (or state
authorized actor) simply does not and should not be regarded as an act that becomes
constitutive of one‘s own experience of racialization. Indeed these data collection efforts
92 See Tanya Katerí Hernández, ―Multiracial‖ Discourse: Racial Classifications in an Era of Color-Blind
Jurisprudence, 57 Md. L. Rev. 97 (1998) (questioning the implementation of multiracial discourse in the
quest for racial equality as hiding the racial impact of supposedly race-neutral laws).; Justin DeSauteles-
Stein, Race as a Legal Concept, 2 COL.J.RACE & L. 1 (2012)
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40
relate to documentary race and can be kept private. There is no reason to assume that
they will dominate a person‘s experience of social race or prevent the individual from
maintaining his or her own private understanding of racial identity.
Most of the scholarship about elective race thus far has concentrated on its
deleterious effects on the Census. This paper adds to the literature by showing the effects
this framework is having on EEOC enforcement guidelines and Title VII doctrine, but
these are not the only other areas where elective race is raising questions. Similar
questions surface in cases of racially ambiguous persons involved in Batson challenges or
juror disqualification disputes,93
and under Title VI when individuals are asked to self
identify in colleges and other institutions of higher learning.94
This discussion focuses on
the implications of Title VII, but all indications are that elective race will be a significant
force in a variety of regulatory, statutory and doctrinal areas. The sociological data that
that I provide in Part II will be critically important to courts as they intervene in conflicts
about the politics of self definition and the contemporary dynamics of the racialization
process.
Certainly, the elective race framework will be relevant to analyzing cases
involving multiracials;95
however, this article has shown that these elective race
understandings are relevant to a much larger group of cases, including all cases involving
phenotypically ambiguous persons whom attempt exercise agency regarding how they are
represented in the workplace. This group often includes persons of a mono-racial
background including: Native Americans, Middle Eastern, and Latino descent, in
addition to multi-racials. Additionally, it has bearing on the antidiscrimination claims of
those whom identify in ways that do not match contemporary American understandings
regarding the boundaries of racial categories. Elective race promises to assist us in
understanding new kinds of Title VII injuries as well as better sort through the claims of
employers and employees regarding how racialized subjects are seen and treated in the
workplace. By providing a broad conceptual map that organizes the terrain before us, it
is my hope that we will develop more principled understandings of these cases, and in
this way respect the identity claims and experiences of a broader range of workplace
discrimination plaintiffs.
93 Smith v. State, 59 So.3d 1107 (2011) (discussing disqualification of juror based on German sounding
name) 94 Rich, Decline to State; Leong (multiracial classification) 95 See Nancy Leong, Judicial Erasure of Multi-Racials Claims (discussing the erasure of mixed race
discrimination claims);Rives, Multiracial at Work, 58 UCLA at 1304 (urging courts to recognize
multiracials interests as distinct from biracial persons, and advocating that courts give plaintiffs the right to
self-identify by race in employment discrimination suits and accommodate flexibility in identification
choices).