Editor's Note - Below is Part Three 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. If you missed Part Two, click here. I hope you find this material helpful in your practice. Jim Schwartz
Performance-Based Discrimination for Black Women
For black women, race and gender are both points of discrimination. At times, they exist separately, but most often they combine and create a synergistic form of discrimination.1 These characteristics cannot be severed to give precedence to one over the other.2 For black women, race and sex are inextricably linked, and both are predominant in her perception of self.
The Fifth Black Woman discusses a fictional attorney, Mary, who works at a large law firm.3 This attorney, a black woman, chooses to wear her hair in dreadlocks and wear traditional African attire on casual Fridays.4 She has participated in committees at the law firm that promote racial diversity and has been outspoken about increasing the number of black female attorneys at the firm.5 She rarely attends social events sponsored by the firm and does not belong to the local country club frequented by many partners.6
Her characteristics stand in stark contrast to the other black women lawyers at the office.7 These other women wear their hair straightened and dress conservatively.8 They regularly attend firm events and are active members of the country club.9 None of them has ever belonged to a firm committee dealing with issues of race or gender, and none have spoken out about these topics at work.10 These women were all promoted to partner status at the firm, while Mary, who possessed an exemplary work record, was not.11
Identity performance theory posits that a person can experience discrimination based not only on their status as a member of a minority group, but also on how they choose to identify themselves with respect to that group.12 In other words, their status is something that is a constant, but the identity choices can be variable. A black woman will be black whether or not she straightens her hair or wears it natural, whether she wears a business suit or a dashiki. However, this choice of how to style her hair or what type of clothing to wear is an example of how she chooses to express her identity as a black person; it is a reflection of how she perceives herself as both black and a woman.13 In this sense, the choices minority individuals make about how to express their racial identity should be protected as much as the racial status itself.
It seems that Mary was discriminated against because of how she chose to express her racial identity. The other black women were able to overcome their racial status and advance their careers by making choices about identity performance that conformed to the dominant white norm. Mary chose to perform her identity in a different way, one that was likely perceived as “too black” by the partnership committee, and she suffered an adverse employment action as a result. It is critical that such performance discrimination is recognized as a cognizable claim under Title VII.
Courts have required a characteristic to be “immutable,” meaning very difficult or impossible to change, in order to be protected under Title VII.14 This mandate is misplaced because it does not take into account the performance of identity through mediums such as dress or speech. Its actual effect is most often to force black employees, especially women, to conform their behavior and appearance to the dominant white norm.15 Most courts ignore the retributions exacted against black females based on how they wear their hair, the way they speak, or when they actively demand racial diversity at the office.16 This lack of protection forces black women to subvert expression of their true identity and assimilate to the white standard for fear of adverse employment consequences.
The Shorter case17 provides an example of an employee who was discriminated against based on how she expressed her racial identity. In Shorter, a white male supervisor criticized the plaintiff for “talking black,” and accused her of “being on the defensive because she was black”.18 Two days after she was fired, allegedly for incompetence, the supervisor was heard referring to her as “incompetent” and adding a racial epithet.19 In spite of this apparent smoking gun evidence, the trial court granted summary judgment to the employer.20
The Tenth Circuit concluded that this and other racist statements made by the supervisor are not direct evidence that the plaintiff was fired because she was black.21 The court characterized the statements as merely expressions of personal opinion and not directly related to the termination.22 This case presents seemingly direct evidence of racial animus, including offensive comments made in close proximity to the termination of a black employee. Still, this court refused to make the link between the supervisor’s bias and the adverse action taken against the employee. If this type of overt evidence is not sufficient for a court to allow a case to avoid summary judgment, it is likely that victims of more subtle discrimination will meet with little success.
Many courts fail to place racial discrimination in the workplace within the proper historical, social, and economic context.23 Courts will often allow subtle discrimination to occur without judicial intervention because they are ignoring the history of racial segregation in America.24 These judges do not recognize that subtle mechanisms of discrimination continue to operate freely despite a society that purports to have achieved formal racial equality.25 Further, these courts employ an antidiscrimination doctrine that tends to bifurcate identity and expression, thus providing an inadequate approach to equality.26 A court that does not understand that expression of racial identity can be just as critical as the racial identity itself fails to grasp the realities and lived experiences of many black women.
It is far from certain if black women asserting claims based on the intersection of their race and sex will gain consistent protection of the courts.27 As a result of courts’ inability to fully grasp the ways black women are discriminated against based on performance of their identities, there has been only sporadic allowance of such assertions.28 The progress up to this point has been unsatisfactory and has left many black female employees without adequate remedies when they are discriminated against based on the varied ways they choose to perform and express their identities.
Identity Based Discrimination for Black Males
Employment discrimination against black males is not limited to either race or gender discrimination: it is often based on a combination of both.29 In other words, race is not the exclusive factor that impedes the opportunities of black men in the workplace, and neither is gender. This discrimination can occur when they choose to perform this identity, through clothing or grooming choices such as the ones made by Mary in the above section. However, it is often the case that black males face damaging racial discrimination simply based on their status as both black and male, as opposed to any way they may perform this identity.30 This intersection of race and gender meshes with powerful stereotypes to create a strain of discrimination that is both difficult for black men to prove and for courts to analyze in a proper fashion.31
Obviously, black females face discriminatory treatment because of both their race and gender, but it has been posited that black males face unique and particularly pernicious forms of discrimination based on their status.32 The amount of stereotypical bias directed at black males in the workplace appears to have no limits or boundaries.33 Although black females battle stereotypes in the employment context, it is rarely the case that they inspire the feelings of hate and fear that often form the undercurrent of bias against black men.34
The perception of black men as violent and uncontrollable erects unique barriers that black women do not face.35 These stereotypes often prevent black males from gaining entry to jobs in the service sector or working directly with the public.36 It is difficult for them to obtain desirable “starter” jobs or to advance in any meaningful way if they do get hired.37 The negative qualities commonly ascribed to black men assures that they receive less desirable work assignments, lower performance evaluations, closer monitoring, and frequent accusations of sexual harassment.38
The contrast is even greater when made against white men. For white males, privilege is like an “invisible weightless knapsack of special provisions, assurances, tools, maps, guides, and blank checks.”39 Whereas maleness is clearly beneficial for white men, when it is combined with blackness it invokes a whole range of stereotypes that cause it to be a clear negative.40 Although white males leverage their privileged status to attain greater status and success in the workplace, black males are relegated to more menial jobs with less chance for advancement based on their race and gender.41
Black men are commonly stereotyped as unintelligent, violent, dangerous, criminal, aggressive, ignorant, and hypersexual.42 This perception of black males as base and animalistic began in Europe and was transferred to the United States during the slavery period.43 These perceptions are advanced today through the news and other media.44 The racially segregated history of the United States has created implicit divisions based on race that continue to exist today.45
Many whites draw their perceptions of black men from the media, motion pictures, or television.46 These sources most often show black men to be violent and involved in some type of criminal behavior.47 Modern culture reinforces the stereotypes of black males as incompetent and instable, and has left the majority of white Americans either fearing black males, or at the very least, feeling uncomfortable in their presence. These notions have become embedded in the consciousness of contemporary society.48
Whites, along with other minority groups, have been inundated for years with negative images about black males.49 This has led to nearly every significant institution in America, including the educational and criminal justice systems, the political sphere and the popular media, operating to the detriment of black males.50 Adverse treatment in the employment realm is but one symptom of a larger problem that has had a devastating impact on the ability of black men to make any substantive gains socially or economically in this country.51
Black males have documented the ways they have experienced discrimination on the job.52 These workers are often not rewarded for their innovative ideas and contributions, but rather are made to feel uncomfortable about their successes.53 They are perceived as messengers when they enter a room to deliver a presentation, or as defendants when they are in fact attorneys.54 Black male employees have been told that customers or clients did not want to work with a person of “that kind.”55 This type of subtle discrimination occurs on a daily basis and is damaging to not only the pride and dignity of the affected workers, but also in a tangible way to their career prospects going forward.
Black men also face obstacles in the employment context based on their lack of viable professional networks.56 White males have long had control of the workplace and have excluded blacks in both overt and covert ways.57 Although the more blatant forms of discrimination have since receded, whites continue to act as “informal gatekeepers” of meaningful employment opportunities.58 The networks of professional contacts enjoyed by whites often lead to both an initial job and subsequent advancement throughout their careers.59
The changing nature of the workplace, with its decentralization and the more transitory nature of employees, only increases the value of a strong network to allow for mobility and advancement. These networks are rarely available to black males, mainly due to the societal stereotyping that continues to plague them.60 This is yet another obstacle based on subtle racial discrimination that is placed in front of black males seeking substantive employment opportunities in the modern job market.
Griggs v. Duke Power Co.61 is an example of a case that appears on its face to be very favorable to black male victims of racial discrimination. In Griggs, the plaintiffs, black males, brought an action under Title VII, alleging that they were denied employment opportunities under the personnel practices and policies of Duke Power.62 The Court found that employment practices, procedures, or tests neutral on their face that were not intended to discriminate but that nevertheless “freeze” out a protected class of individuals, may violate Title VII.63 Although this ruling is of great value to plaintiffs who are subject to discrimination based on clearly delineated policies or procedures, it does not appear to encompass the many black male employees who are subjected to a much more amorphous form of bias.
Much more often than not, black male employees cannot pinpoint a practice that results in them being excluded; they can only show that they have been denied promotion or some other employment benefit.64 Due to the varied and deeply ingrained biases against black men and the increasingly subtle ways these biases are manifested, it is a substantial burden to require a black male plaintiff to point to a specific policy that explains their treatment.65 Closer analysis of a case such as Griggs reveals that although the precedent may have been a victory in its time, to a large extent modern workplace discrimination against black males has evolved beyond its scope.
Many commentators argue that the reason Title VII plaintiffs have had such difficulty in having their claims of subtle racial discrimination properly adjudicated is that courts are using an outmoded concept of racial discrimination.66 Judges often fail to see the unconscious and institutionalized biases that exist in today’s workplace because they are expecting racially discriminatory actions to have a clear motivation and easily identifiable perpetrators.67 Especially in the instance of black male plaintiffs, many courts are expecting claims to be brought on the basis of race alone, and fail to grasp the negative implications that being male can have when it is combined with being black. This pigeonholing of discrimination claims brought by black males into a narrow legal framework has effectively prevented them from getting adequate relief for the discriminatory practices they have faced.68
Conclusion
In modern times, racial discrimination rarely occurs in a clear, discrete manner. Instead, it is most often characterized by a pattern of subtle bias, which perpetrators may not even realize they are engaged in. Courts seem to have a difficult time recognizing such patterns, but their impact is all too apparent to the countless victims who find themselves dealing with missed opportunities, uncomfortable work situations, and relegation to low-status jobs.
This article has delineated several categories of people who are victimized by subtle racial discrimination. Stubborn adherence to outdated modes of analyzing race discrimination has prevented minority employees from accessing the relief that they deserve under the original intent of Title VII. Many courts would prefer to analyze discrimination claims as if race and sex are separate and discrete classifications, which does not recognize the clear reality that all individuals, including racial minorities, embody several protected categories. This type of discrimination is predominant in the current employment landscape, and it is incumbent upon the courts to take steps to acknowledge and understand how it functions in order to give these workers the protection they are legally entitled to.
Endnotes
1. See Pamela J. Smith, Part II—Romantic Paternalism—The Ties That Bind: Hierarchies of Economic Oppression That Reveal Judicial Disaffinity for Black Women and Men, 3 J. GENDER RACE & JUST. 181, 221 (1999) (hereinafter Smith, Romantic Paternalism).
3. See Devon Carbado & Mitu Gulati, The Fifth Black Woman, 11 J. CONTEMP. LEGAL ISSUES 701, 710–719 (2001).
8. See Carbado & Gulati, supra note 3, at 718.
12. See Devon Carbado & Mitu Gulati, Working Identity, 85 CORNELL L. REV. 1259 (2000)
14. See Mark R. Bandusch, Ten Troubles with Title VII and Trait Discrimination Plus One Simple Solution (A Totality of the Circumstances Framework), 37 CAP. U. L. REV. 1064 (2009).
17. Shorter v. ICG Holdings, Inc., 188 F.3d 1204 (10th Cir. 1999).
23. See Darren L. Hutchinson, Factless Jurisprudence, 34 COLUM. HUM. RTS. L. REV. 615, 616 (2003).
27. See Kathryn Abrams, Title VII and the Complex Female Subject, 92 MICH. L. REV. 2479 (1994).
29. See D. Aaron Lacy, The Most Endangered Title VII Plaintiff?: Exponential Discrimination Against Black Males, 86 NEB. L. REV. 552, 555 (2008)
31. See Floyd D. Weatherspoon, Remedying Employment Discrimination Against African-American Males: Stereotypical Biases Engender a Case of Race Plus Sex Discrimination, 36 WASHBURN L. J. 23, 25 (1996).
35. See Pamela Smith, Romantic Paternalism, supra note 1, at 230.
39. See Peggy McIntosh, White Privilege and Male Privilege: A Personal Account of Coming to See Correspondences Through Work in Women’s Studies, in Leslie Bender & Dan Braveman, POWER, PRIVILEGE AND LAW: A CIVIL RIGHTS READER 22, 23 (1995).
40. See Lacy, supra note 29, at 556.
42. See Terry Smith, Everyday Indignities: Race, Retaliation and the Promise of Title VII, 34 COLUM. HUM. RTS. L. REV. 538 (2003) (hereinafter Smith, Everyday Indignities).
46. See Ronald E. Hall, Clowns, Buffoons, and Gladiators: Media Portrayals of the African-American Man, 1 J. MEN’S STUD. 239, 242 (1993).
49. See Weatherspoon, supra note 31, at 31–33.
52. See Lacy, supra note 29, at 571–72
56. See Lacy, supra note 29, at 572–74.
60. See Terry Smith, Everyday Indignities, supra note 42, at 538.
64. See Weatherspoon, supra note 31, at 48–49.
66. See Reginald Oh, Latcrit Introduction Methods, 50 VILL. L. REV. 909 (2005).
