In the era of Tiger Woods’s racial self-identification as “Cablinasian” and Caitlyn Jenner’s transition from Olympian to transgender advocate, it may seem obvious that a growing number of Americans openly embrace fluid social identities, being multiracial, post-racial, transgender, or gender nonconforming, among others. Efforts to use new words and conceptions of race and sex appear on everything from the U.S. Census to Facebook pages to bathroom signs. And yet, despite this social reality, our laws – and in particular, our federal employment discrimination laws – continue to force workers into “pure” identity categories, or face dismissal of an otherwise legitimate lawsuit. In Fluid Identity Discrimination, I argue that it is time to reconsider what is known as the “protected class” paradigm under Title VII of the Civil Rights Act so that our primary employment discrimination law better captures the new reality of social identity.
The last fifty years have seen particularly dramatic changes in our collective understanding of the meaning of race, sex, and identity in general. Many scholars now agree that race is a social construct independent from biological or genetic bases. The long-accepted view that sex is binary has been challenged by an increased awareness of the existence of intersex individuals and the scientific and medical communities’ recognition of numerous characteristics, both biological and social, that can determine a person’s sex.
When faced with multiracial and transgender individuals, courts often seem baffled about how or whether to apply the law’s protections to them.
And the media have noticed. The racial identities of President Obama, Woods, and Rachel Dolezal have been the subject of intense media coverage, as have the gender identities of Olympic runner Caster Semenya, Orange is the New Black actress Laverne Cox, and most, recently, Jenner. With each new story, American society seems to grow increasingly comfortable with the concept of fluid identities – and increasingly frustrated with any attempt to impose pure categories on identity.
Unfortunately, our employment laws and the courts interpreting them have failed to catch up to these changes.
In 1973, the Supreme Court in McDonnell Douglas Corp. v. Green provided a possible formula for establishing an initial case of race discrimination when there was no direct evidence of bias. The very first prong of this formula asks whether the plaintiff belongs to a racial minority as a first step in identifying a biased decision. Unfortunately, despite the Court’s clear statement that this was only one possible approach, among lower courts, this formula has taken on the force of law, particularly that first prong. As a result, nearly every race and sex discrimination case begins with the court considering whether the plaintiff falls neatly into a single race or sex category.
When faced with multiracial and transgender individuals, courts often seem baffled about how or whether to apply the law’s protections to them. Most courts either refuse to extend protections to fluid identity workers, or ignore the complexity of fluid identities and simply assign a category to the plaintiff to make it easier to apply the statute. In race cases, courts often gloss over a mixed race identity as too impractical to consider under Title VII and too difficult to compare to other workers. Similarly, despite opinions to the contrary by several federal agencies, numerous courts still explicitly hold that because transgender workers are neither male nor female, they do not qualify for protection. Transgender workers have won some victories under a stereotyping theory of discrimination in which, for example, the employer’s bias stems from expectations that a transgender woman would dress, sound, or act “like a man.” But this approach, while successful in protecting some transgender workers, forces a transgender woman, for example, to file as a man facing bias because of her feminine appearance. Again, the law ignores the reality of her identity to make it easier for courts.
Fluid Identity Discrimination contends that it is time to stop making it easier for courts and start making it easier and clearer for the growing numbers of Americans with fluid identities and the entities that employ them. It is time for Congress to amend Title VII to recognize that social identity is complex and fluid and that discrimination is not related to the “purity” of the victim.
President Obama and others have endorsed the federal Equality Act, an amendment to Title VII that would prohibit discrimination based on gender identity and sexual orientation, but this does not go far enough. American society has changed its view of social identity, not just race or sex. Any amendment to Title VII should capture this fundamental change rather than merely adding categories of protected groups. Instead, the law should be amended to make it unlawful to discriminate based on the presence or perception of racial, sex, gender, religious, color, and national origin identity characteristics or traits instead of the existing language. Trait-based discrimination would change the initial inquiry from a focus on the victim’s membership in a protected class to a focus on the existence or perception in the eyes of the discriminator of identity traits. This change would continue protections for those with static identities but also would expand and increase protection for fluid identity individuals.
Despite the growth and increased visibility of individuals with fluid identities, legal protections have failed to keep up with these changes. And the current confusion in the courts has a negative impact on employers and employees alike, since a lack of clarity in the courts can lead to more difficult employment decisions, an inability to effectively train management and human resources professionals, and litigation that eats up precious resources. A legal regime that is so drastically out of synch with the realities of modern identity cannot endure. Employment discrimination law should be amended to incorporate the fluid nature of identity.
You can download Fluid Identity Discrimination here.