Editor's Note - Below is Part Two of a three-part series regarding Title VII and how to handle a case involving one of the acts described in Title VII of the Civil Rights Act. I strongly recommend it to you. If you missed the first part, click here. I hope you find this material helpful in your practice. Jim Schwartz
Development of Subtle Racial Discrimination
In the past, discriminatory practices were blatant and often a result of institutional policies.1 Racial discrimination generally was traceable to individuals or groups acting on clear racial animus to exclude minorities.2 This kind of action led to the continuing subordination of minority employees and fit within commonly held conceptions of racial discrimination.3 Thus, they were subject to clear remedies, which often came in the form of rules.4 These rules prohibited employers from taking race into account when making hiring or employment decisions, and commanded that minority employees have access to the same opportunities as other workers.5
As traditional forms of racial discrimination have receded over time, they have been replaced by less obvious forms of discriminatory treatment.6 This type of racially motivated action is often characterized by patterns or practices that are not formalized policies of the employer, but that nonetheless work to the detriment of minority workers.7 The fact that many of those who perpetrate this subtle discrimination are driven by implicit bias makes the exclusionary effects of these practices difficult to trace to intentional acts of individual decision makers.8
Social psychologists have christened this new phenomenon as aversive racism.9 It is characterized by subtle, often unintentional, forms of bias on the part of whites.10 They often believe that they are acting free from prejudice, and may be unaware that their decision making is to the detriment of black workers.11 Aversive racism appears to be prevalent in the modern workplace. Because of its subconscious and implicit nature, it is especially difficult for the existing Title VII structure to handle.12 This type of racism can offer advantages for members of the dominant group, boosting their self-esteem and promoting feelings of authority and superiority.13 In a more tangible sense, aversive racial discrimination offers economic advantages to whites and allows them to maintain dominance in the workplace.14
Aversive racism differs from more overt forms in that it is less openly hostile to members of minority groups.15 People experiencing this form of racial bias tend to have feelings of uneasiness and distrust around blacks, which are much more difficult to detect than the openly racial animus of the past.16 In the employment context, aversive racism acts in subtle ways to influence the behavior of whites in making work assignments or creating teams.17 This often has detrimental outcomes for black employees, who are either completely shut out of assignments, or are rendered ineffective due to the inconsistent behavior and distrust of white supervisors and coworkers.18
This theory of unconscious racism was first explored by Charles Lawrence, who wrote that dominant theories of modern psychology believe that perceptions of race tend to occur in the subconscious of human thought.19 Professor Peggy Davis described the phenomenon as “white microagressions.”20 Whites in a dominant position now tend to act dismissively toward blacks, which is not motivated by active racial animus, but rather unconscious attitudes of white superiority and black inferiority.21 The widespread occurrence of this unconscious prejudice is not surprising when it is considered how recently America adopted principles of racial equality.22 The long history of racial oppression and marginalization of blacks in this country has improved, but its lingering impact is expressed in the deeply held attitudes on race described by Lawrence and Davis.
It is no coincidence that subtle race discrimination has become prevalent as the workplace has undergone major changes in structure. In today’s employment context, hierarchies are often relaxed, and flexibility is prized above all else.23 Workers change jobs often and seek to develop skills and experience that can be marketed to future employers.24 Day-to-day interactions between employees and management are more important than ever because making connections and developing expertise is so critical to workers.25 The presence of racial bias on the part of a decision maker can be especially harmful at this level.26 Under these circumstances, passing over an employee for a particular assignment can be as damaging as denying them a raise or a promotion.27
The organization of many employers is now focused on decisions about how and by whom work is accomplished, rather than who is hired or where they are placed in the company’s hierarchy.28 These decisions are very susceptible to being influenced by subtle racial discrimination. Managers may impose less desirable assignments on racial minorities, or assign them extra work because of an implicit bias.29 Decisions made according to subtle racial bias are also likely to create stratifications in jobs or job functions that tend to devalue minority workers and reinforce the stereotypes that led to the original decision.30 In this sense, the racially discriminatory practices become a self-fulfilling prophecy, whereby whites are validated in subordinating black employees.
Racial bias today operates at multiple stages of the workplace and at all levels of interaction between employees.31 Discrimination that hinders the development of minority workers or deprives them of opportunities that they should have access to often falls outside the scope of traditional Title VII protections, and courts are hesitant to recognize such claims as causing tangible harm.32 The effects of this kind of discrimination are “softer” because their benefits and harms are not always immediately apparent.33 However, the damage is undeniable, as minority employees often find themselves segregated into low-status jobs and assignments, unable to advance in any meaningful way. To deny redress to victims of this type of discrimination is to fail to understand both the current nature of racial bias and the changing structure of the employment arena.
Categories of Subtle Racial Discrimination and Shortcoming of Title VII in Addressing Them
There are numerous categories of minority workers who are subjected to racially discriminatory treatment that negatively impacts their professional development and exacts a steep psychological toll.34 This part examines four different categories of employees who face subtle discrimination based on race. Each category will be described in detail, then specific shortcomings of the current Title VII structure will be applied to the group to demonstrate the obstacles that members of the particular class face in seeking legal protection for the subtle racial discrimination that they experience
Intragroup Discrimination
Intragroup discrimination arises between members of the same racial minority group and is often based on a failure to assimilate to dominant white norms in the workplace.35 This type of discrimination encompasses instances of blacks discriminating against other blacks.36 Assimilation may be defined as the degree to which a person is associated with a privileged group.37 The less a black person conforms to the prevailing racial norms, the greater the risk they will be discriminated against, even by members of their own minority group.38 Although this brand of subtle racial discrimination may be less conspicuous than that perpetrated by whites, it is no less harmful to the equal employment opportunities of its victims.
Many workplaces adhere to white behavioral stereotypes, and under this system, whites are privileged, blacks who “act white” are assimilated, and blacks who “act black” are unassimilated.39 The assimilated blacks have internalized the white norms in an attempt to achieve an elevated status within the workplace.40 They may then act in discriminatory ways against blacks who have not acquiesced to the dominant behavioral norms.41
Two cases demonstrate the difficulties faced by plaintiffs who have been victimized by intragroup discrimination. In Sere v. Board of Trustees of the University of Illinois,42 the plaintiff was a Nigerian man who was fired by his light-skinned black supervisor and replaced with a light-skinned man.43 Though the plaintiff’s Title VII claim was dismissed as untimely, the court did consider his racial discrimination claim under § 1981.44 The court found that although discriminatory behavior may occur between members of the same race, in this case the plaintiff had failed to establish actionable discrimination.45 Most notably, the court failed to provide any doctrinal guidance for future adjudication of these claims.46
In Bryant v. Begin Manage Program,47 the plaintiff, a light-skinned black woman, alleged that her dark-skinned supervisors treated her in a discriminatory way based on her skin color and failure to “act black.”48 The supervisors referred to the plaintiff as a “want to be,” as in wants to be white.49 The court allowed the case to survive summary judgment on the basis of conduct-based racial discrimination, without giving any serious attention to the color of the parties.50
Interestingly, the facts of this case reflect the opposite of what takes place in many intragroup discrimination cases; namely, that the victim was penalized for acting “too white” as opposed to “too black.” Nevertheless, it is important to note that racial norms were implicated, and the plaintiff was victimized by members of her own racial minority for failure to adhere to their conception of how race should be expressed. The fact that the court recognized that discrimination may have occurred is a positive, but it is troubling that the aspect of skin color as a basis for the disparate treatment was ignored.
Many of the proof structures under Title VII, such as the “tangible affect” requirement, pose problems in the modern workplace, especially for victims of intragroup discrimination.51 Much of the subtle race discrimination today is more likely to hinder opportunity and development, which certainly has a deleterious effect on those who are subjected to it.52 However, it is often quite difficult to make a showing of tangible harm that will satisfy the current burden of proof.
For example, performance evaluations are critical to success in the workplace, but many courts will not find a negative evaluation to be an adverse employment action unless it is used in a decision-making context.53 This approach ignores the impact the negative evaluation may have on the minority employee’s morale and their future work opportunities.54 Further, courts already skeptical of claims involving minorities discriminating against one another are unlikely to characterize the harm suffered by targets of intragroup bias as severe or tangible enough to warrant Title VII protection.55
The concept of discrimination within a minority group seems to be difficult for many to grasp. This includes the great majority of courts, who have expressed suspicion toward such claims.56 However, for victims of such discrimination, the phenomenon is all too real, and its existence is impossible to ignore. These employees are subjected to harassment and deprived of opportunity just as victims of the more traditional forms of discrimination are. Until the judiciary acknowledges the validity of these claims, those suffering intragroup discrimination in the workplace are left with little legal recourse.
Intergroup Discrimination
A great number of workplace cultures today have a tendency to intertwine being a good employee with being a good white person.57 This culture not only works to the detriment of black workers, but it also enforces a certain set of expectations on whites and how they should behave toward minorities on the job.58 Creating a system of social relations that favors the dominant white norm reinforces the superiority of whites and the inferiority of blacks, and acts to produce discrimination throughout the employment market.59
In some cases, employers make clear their expectations of race-based intergroup interactions, with explicit warnings to white workers not to associate with blacks.60 There may be signals given, such as accusations of being disloyal,61 calling a white person a “[n***] lover,”62 or social shunning.63
When employers take such actions to encourage whites to discriminate against minorities, or retaliate against them for calling attention to a workplace plagued with racial discrimination, they are creating a hostile work environment for all the workers involved.64 When workers are subjected to threats, work sabotage, or unfair work assignments, it is reasonably clear that they are suffering adverse employment actions.65 The next step of the analysis is whether the harms occurred because of race.66 Many courts have refused to recognize such claims brought by white workers, adhering to the view that members of the dominant group could ever be victimized by racial discrimination.67 This perspective seems to say that whites have no stake in discriminatory behavior directed at other groups, and are no more than third-party bystanders when race discrimination is perpetrated.68
The need for whites to take a stand against racial discrimination and to be legally protected when they do so is illustrated by the case of Childress v. City of Richmond.69 In Childress, six white male police officers found themselves in the midst of a severely hostile work environment, one where their commanding officer showed contempt for any nonwhites on the force.70 This commander referred to a black female officer using extremely racist and derogatory language and invited the other white officers to act in a similar discriminatory fashion.71
The officers refused to engage in this offensive behavior, and joined with the black officers in calling for their superior to be disciplined.72 When they were subjected to harassment, threats of discharge, and adverse transfers, the officers chose to file suit under Title VII for being placed in a hostile working environment in which the officers were divided by race.73 However, a federal court also divided the officers by race, dismissing the white officer’s claims on the ground that they merely faced a workplace biased in their favor.74 The Childress court assumed that unambiguously racist rhetoric could not possibly create a hostile environment for white men because they should feel favored, not threatened, by such an atmosphere.
This case provides a stark example of employees being punished for standing up to serious racial discrimination. The fact that some of the victims were themselves members of the dominant class should not preclude them from protection against retaliation. It is critical that all those who oppose discrimination be offered protection under the law, regardless of their racial identity.
Judicial biases appear to be even more pronounced when it comes to claims of intragroup discrimination, as their relative novelty stretches the knowledge and understanding of many jurists.75 Courts already unlikely to rule in favor of victims of more direct forms of discrimination are certainly not welcoming of these lesser-known incarnations of racial inequality in the workplace. It is imperative that judges be able to set aside their personal biases and consider all the relevant circumstances of a subtle race discrimination case in order to afford the plaintiff, whether black or white, a full and fair hearing.
Endnotes
3. See Gina J. Chirichigno, Crying Wolf? What We Can Learn From “Misconceptions” About Discrimination: A Transformational Approach to Anti-Discrimination Law, 49 HOW. L.J. (2006), at 465.
6. See Ann C. McGinley, Viva La Evolucion!: Recognizing Unconscious Motive in Title VII, 9 CORNELL J. L. & PUB. POL’Y (2000), at 440.
9. See Reginald Oh, Latcrit Introduction Methods, 50 Vill. L. Rev. 905, 910–11 (2005)
13. See John F. Dovidio & Samuel L. Gaertner, Color Blind or Just Plain Blind?: The Pernicious Nature of Contemporary Racism, 12 THE NON-PROFIT QUARTERLY 4 (Winter 2005).
18. See Dovidio & Gardner, supra note 13, at 8.
19. See Terry Smith, Everyday Indignities: Race, Retaliation and the Promise of Title VII, 34 COLUM. HUM. RTS. L. REV. 529, 536 (2003) (hereinafter Smith, Everyday Indignities)
20. See Peggy C. Davis, Law as Microaggression, 98 YALE L.J. 1559, 1576 (1989).
22. See Smith, supra note 32, at 540.
23. See Samuel R. Bagenstos, The Structural Turn and the Limits of Antidiscrimination Law, 94 CAL. L. REV. (2006), at 8.
28. See Tristin K. Green, Race and Sex in Organizing Work: “Diversity,” Discrimination, and Integration, 59 EMORY L.J. 585, 587 (2010)
34. See Terry Smith, Everyday Indignities, supra note 19, at 545.
35. See Enrique Schaerer, Intragroup Discrimination in the Workplace: The Case for “Race Plus,” 45 HARV. C.R.-C.L. L. REV. 57, 58–60 (2010).
39. See Schaerer, supra note 35, at 65.
42. 628 F. Supp. 1543 (N.D. Ill. 1986), aff’d, 852 F.2d 285 (7th Cir. 1988).
44. Id. (Section 1981 states in relevant part that “all persons shall have the same rights as are enjoyed by white citizens.”)
47. 281 F. Supp. 2d 561, 565 (E.D.N.Y. 2003)
51. See Gina J. Chirichigno, Crying Wolf? What We Can Learn From “Misconceptions” About Discrimination: A Transformational Approach to Anti-Discrimination Law, 49 HOW. L.J. (2006), at 584–85.
56. See Gina J. Chirichigno, Crying Wolf? What We Can Learn From “Misconceptions” About Discrimination: A Transformational Approach to Anti-Discrimination Law, 49 HOW. L.J. (2006), at 587.
57. See Noah D. Zatz, Beyond the Zero-Sum Game: Toward Title VII Protection for Intergroup Solidarity, 77 IND. L.J. (2002), at 66.
61. See Skinner v. Total Petroleum, Inc., 859 F.2d 1439, 1441 (10th Cir. 1988).
62. See Moffett v. Gene B. Glick Co., 621 F. Supp. 244, 254 (N.D. Ind. 1985).
63. See Drake v. Minnesota Mining & Manufacturing Co., 134 F.3d 878 (7th Cir. 1998).
64. See Noah D. Zatz, Beyond the Zero-Sum Game: Toward Title VII Protection for Intergroup Solidarity, 77 IND. L.J. 63, 65 (2002), at 134.
69. 907 F. Supp. 934, 938 (E.D. Va. 1995), claims dismissed by 919 F. Supp. 216 (E.D. Va. 1996), vacated and remanded by 120 F.3d 476 (4th Cir. 1997) (panel opinion), panel opinion vacated and judgment below aff’d en banc by 134 F. 3d 1205 (4th Cir. 1998) (per curiam).
