II. Projected Overview of Workplace Demographic
The combined influence of the current younger generations can dramatically transform the workplace. Millennials have not only been the largest generation in the U.S. labor force since 2018, but it is projected that they could remain that way through the end of 2029. Currently, sixty-six percent of Millennials are employed full-time. Twenty-six percent of them have two or more jobs. When comparing Millennials and Generation Z, those born between 1997 and 2012, there are several shared traits that are worth noting. First, both generations seem to be much more tech-savvy than their predecessors. This will no doubt be true for the upcoming Generation Alpha, many of whom have not yet entered the workforce. Second, both Millennials and Generation Z have been deemed as not being as engaged as older workers. Third, these younger generations have experienced more work stress and mental health concerns. Finally, these younger generations strongly desire to promote diversity and inclusion within the workplace. In a Tallo research poll of Generation Z respondents, half of the survey respondents (sixty-seven) who have ever had a job said they had witnessed discrimination in a workplace setting based on race, ethnicity, gender identity, or sexual orientation. Of that same group, forty-four percent said they have felt discriminated against for the same reasons in a workplace setting. When it comes to gender identity or expression, eighty-eight percent agree that it’s important that recruiters or potential employers ask people about their preferred gender pronouns.
III. Employment Discrimination
While Black’s Law Dictionary defines “discrimination” as “the intellectual faculty of noting differences and similarities,” it also defines it as the “effect of a law or established practice that confers privileges on a certain class or denies privileges to a certain class . . . .” With the exception of content-based and viewpoint discrimination, much of discrimination is oriented upon a particular class of persons, defined by race, gender, sex, national origin, etc. Employment discrimination is no exception, which is defined as “discrimination against an employee, former employee, or job applicant by an employer based on a characteristic or status.”
A plaintiff makes a prima facie case of discrimination by proving that (a) such individual is a member of a protected class; (b) such individual is qualified for the job, promotion, or other benefit in question; (c) an adverse action of employment was taken; and (d) the position remained open or was awarded to someone with similar qualifications. Once the plaintiff establishes these factors, the court then draws an inference of discrimination. The burden of production then shifts to the employer, who must articulate a nondiscriminatory explanation for rejecting the plaintiff’s application. If the employer does not satisfy this minimal burden, the plaintiff automatically prevails. But if the employer satisfies this burden, the plaintiff must prove that the employer’s reason is a pretext for discrimination to win his or her case. The plaintiff may do this in a number of ways, including by simply disproving the employer’s asserted reason for its decision.
A. Sex Discrimination and the Bostock Decision
Sex discrimination involves the disparate treatment or the adverse action of employment based upon one’s sex. Employment laws regarding sex and gender discrimination include Title VII, the Equal Pay Act of 1963, the Lilly Ledbetter Fair Pay Act of 2009, the Pregnancy Discrimination Act, and other state and local discrimination laws. Sex discrimination includes sex-based stereotypes or assumptions about abilities, traits, or the performance of individuals. However, while several states had explicitly adopted sexual orientation and gender identity as protected classes under their discrimination laws, the question arose as to whether these statuses were also protected under Title VII’s prohibition of sex discrimination.
In 2020, the Supreme Court of the United States in Bostock v. Clayton County held that Title VII’s prohibition on “sex discrimination” includes discrimination on the basis of gender identity and sexual orientation. The employees in the cases consolidated by the Court were terminated by their respective employers on the basis of coming out as either gay or transgender. While these cases began the same way as sex discrimination lawsuits brought under Title VII, they initially ended differently.
Each of the employers argued that the term “sex” in 1964 referred only to “status as either male or female [as] determined by reproductive biology” and did not include sexual orientation or gender identity, which were different traits. On the contrary, the employees countered by “submitting that, even in 1964, the term bore a broader scope, capturing more than anatomy and reaching at least some norms concerning gender identity and sexual orientation.”
1. Bostock Majority
The Court adopted the definition of sex submitted by the employers, referring to the ordinary public meaning of the statute’s language at the time of the law’s adoption. Even with that meaning, though, the Court held that discriminating on the basis of sexual orientation or gender identity was necessarily sex discrimination. In doing so, Justice Gorsuch, who wrote for the majority highlighted a straightforward principle:
An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn’t matter if other factors besides the plaintiff’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred. Title VII’s message is “simple but momentous”: An individual employee’s sex is “not relevant to the selection, evaluation, or compensation of employees.”
Although the Court “proceed[ed] on the assumption that ‘sex’ . . . refer[s] only to biological distinctions between male and female,” it determined that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Justice Gorsuch reasoned that “homosexuality and transgender status are inextricably bound up with sex . . . [n]ot because homosexuality or transgender status are related to sex in some vague sense or because discrimination on these bases has some disparate impact on one sex or another, but because to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.” By discriminating on the basis of sexual orientation, an “employer intentionally penalizes men for a trait it would tolerate in women, namely being attracted to men. Likewise, in discriminating on the basis of gender identity, an employer necessarily “discriminates against persons with one sex identified at birth and another today.” Thus, the Court in Bostock established that “if an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met, and liability may attach.”
2. Bostock Dissent
In writing for the dissent, Justices Alito and Thomas criticized the majority opinion by labeling it as an attempt to “update” old statutes so that they better reflect the current values of society, disguised as textualist statutory interpretation. Despite perceived policy grounds in favor of doing so, the dissenting Justices argued that the main question in Bostock should not have been whether discrimination because of sexual orientation or gender identity should be outlawed. Rather, they believed the question should have been whether Congress did that in 1964, to which they argue that it indisputably did not.
First, Justice Alito argued that in 1964, the year in which Title VII was enacted, sex discrimination clearly “meant discrimination because of the genetic and anatomical characteristics that men and women have at the time of birth.” He supplemented this point by highlighting that no single dictionary from that time defined “‘sex’ to mean sexual orientation, gender identity, or ‘transgender status.’” Thus, Justice Alito emphasized that no member of Congress could have interpreted the statutory text to protect gay or transgender employees when Title VII was enacted.
Next, Justice Alito argued that the terms “sex,” “sexual orientation,” and “gender identity” are different concepts, as the majority conceded. And neither “sexual orientation” nor “gender identity” is tied to either of the two biological sexes. “Both men and women may be attracted to members of the opposite sex, members of the same sex, or members of both sexes. And individuals who are born with the genes and organs of either biological sex may identify with a different gender.” In light of these distinctions, Justice Alito asserted that “discrimination because of sexual orientation or gender identity does not in and of itself entail discrimination because of sex.” According to Justice Alito, “if it is impossible to intentionally discriminate against an individual applicant or employee without even knowing whether they are male or female, then it is impossible to argue that the employer intentionally discriminated because of sex.” As Justice Alito explained further:
An employer cannot intentionally discriminate on the basis of a characteristic of which the employer has no knowledge. And if an employer does not violate Title VII by discriminating on the basis of sexual orientation or gender identity without knowing the sex of the affected individuals, there is no reason why the same employer could not lawfully implement the same policy even if it knows the sex of these individuals. If an employer takes an adverse employment action for a perfectly legitimate reason—for example, because an employee stole company property—that action is not converted into sex discrimination simply because the employer knows the employee’s sex.
In response to the majority’s view that sexual orientation and gender identity are “inextricably bound with sex,” Justice Alito emphasized that there are many things that are related to sex and that “Title VII prohibits discrimination because of sex itself, not everything that is related to, based on, or defined with reference to, ‘sex.’”
Finally, Justice Alito turned to the majority’s comparison of discrimination against gays and lesbians to discrimination against a person who is married to or has an intimate relationship with a person of a different race. Justice Alito argued that this comparison “totally ignores the historically rooted reason why discrimination on the basis of an interracial relationship constitutes race discrimination.” He further emphasized that the negative attitudes toward “race-mixing” was already a historical component of race discrimination, because the prohibition of such was both “grounded in bigotry against a particular race and was an integral part of preserving the rigid hierarchical distinction that denominated members of the black race as inferior to whites.”
By contrast, Justice Alito argued that sexual orientation discrimination is different because it “is not historically tied to a project that aims to subjugate either men or women.” To illustrate this point, Justice Alito explained that “[a]n employer who discriminates on this ground might be called ‘homophobic’ or ‘transphobic,’ but not sexist.”
Justice Kavanaugh wrote a separate dissenting opinion in Bostock. Justice Kavanaugh recognized that the policy arguments for amending Title VII would be very weighty. He agreed “that gay and lesbian Americans ‘cannot be treated as social outcasts or as inferior in dignity and worth.’” However, Justice Kavanaugh emphasized, “Under the Constitution’s separation of powers, our role as judges is to interpret and follow the law as written, regardless of whether we like the result.”
Justice Kavanaugh asserted that courts must follow ordinary meaning, not literal meaning, and to adhere to the ordinary meaning of phrases, not just the meaning of the words in a phrase. Like Justice Alito, Justice Kavanaugh disagreed that the ordinary meaning of the phrase “discriminate because of sex” encompassed discrimination due to sexual orientation. Kavanaugh stated that “[a]s to common parlance, few in 1964 (or today) would describe a firing because of sexual orientation as a firing because of sex.” He further noted:
As commonly understood, sexual orientation discrimination is distinct from, and not a form of, sex discrimination. The majority opinion acknowledges the common understanding, noting that the plaintiffs here probably did not tell their friends that they were fired because of their sex. . . . That observation is clearly correct. In common parlance, Bostock and Zarda were fired because they were gay, not because they were men.
Justice Kavanaugh also expressed concern that the majority’s interpretation distorted history, psychology, and sociology. He pointed out that “the women’s rights movement was not (and is not) the gay rights movement, although many people obviously support or participate in both.”
Additionally, Justice Kavanaugh, too, emphasized that “Congress has never defined sex discrimination to encompass sexual orientation discrimination.” He stated that, instead, Congress explicitly refers to sexual orientation discrimination whenever it wants to prohibit sexual orientation discrimination in addition to sex discrimination. Finally, Justice Kavanaugh warned that “reading sex discrimination to encompass sexual orientation discrimination would cast aside as surplusage the numerous references to sexual orientation discrimination sprinkled throughout the U.S. Code in laws enacted over the last 25 years.”
B. Race Discrimination
The United States has laws that prevent employment discrimination on the basis of race. This includes reverse discrimination, the practice of providing unfair treatment to a group of people who have traditionally been privileged in an attempt to be fair to the group of people unfairly treated in the past. Both race and sex discrimination have some causes of action that are not shared. These differences will be analyzed further.
1. Race Discrimination Under Title VII
Title VII of the Civil Rights Act of 1964 also prohibits discrimination against an employee or employment applicant because of race or color in regard to hiring, termination, promotion, compensation, job training, or any other term, condition, or privilege of employment. Title VII additionally prohibits employment decisions based on stereotypes and assumptions about abilities, traits, or the performance of individuals of certain racial groups. Finally, Title VII prohibits both intentional discrimination and neutral job policies that disproportionately exclude minorities and that are not job related.
2. Race Discrimination Under 42 U.S.C. § 1981
Section 1981, a provision of the 1866 Civil Rights Act, is a statute that only applies to intentional racial discrimination. It establishes that certain rights are to be guaranteed to all citizens of the United States, and these rights are to be protected against impairment by nongovernment and state discrimination. More specifically, section 1981(a) guarantees the rights “to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.” “The term ‘make and enforce contracts’ includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” This not only includes employment contracts, but also independent contractor relationships.
Plaintiffs have often asserted simultaneously section 1981 and Title VII claims in employment cases involving racial discrimination. While both statutes are similar in protecting against unjust discrimination on the basis of race, section 1981 differs from Title VII of the 1964 Civil Rights Act in several ways. First, section 1981 applies only to intentional racial discrimination, while Title VII applies to intentional discrimination and disparate impact discrimination on race, color, national origin, sex, or religion. Not only does section 1981 extend to retaliation claims, but it also provides protection against these offenses in actions taken by the federal government, state governments, independent contractors, and private individuals. Second, section 1981 has a longer statute of limitations, and, unlike Title VII, asserting a Section 1981 claim does not require any intervention from any administrative agency, such as the Equal Employment Opportunity Commission (EEOC). Third, while Title VII and other state discrimination laws have a damages cap that is dependent upon the number of employees at the company, section 1981 has no damages cap. This is one of the main reasons that make section 1981 claims coveted. For instance, a Texas jury returned a verdict of $70 million for ten race discrimination and retaliation plaintiffs, who asserted claims pursuant to section 1981.
Finally, the causation element of a section 1981 was heightened in Comcast Corp. v. National Ass’n of African American-Owned Media. In that case, Plaintiff Entertainment Studios Networks (ESN), a media company owned by an African American entrepreneur, accused Defendant Comcast Corporation of refusing to carry its channels because of racial animus. The district court dismissed the case three times, finding that ESN had not plausibly shown that, but for racial animus, Comcast would have contracted with ESN. The Ninth Circuit reversed, holding that a plaintiff need only plead that race was a “motivating factor” in the defendant’s decision.
The Supreme Court ruled in Comcast that a section 1981 plaintiff bears the burden of showing that the plaintiff’s race was a but-for cause of its injury, and that burden “remain[s] constant over the life of the lawsuit,” including during the initial pleading stage. In reversing the Ninth Circuit, the Court reasoned that the Civil Rights Act of 1866, which created section 1981, was intended to vindicate the rights of former slaves, and that the “but-for” causation standard is consistent with that purpose. While the Court recognized that the statute’s text does not expressly discuss causation, it believed it to be suggestive. The Court further explained:
The guarantee that each person is entitled to the “same right . . . as is enjoyed by white citizens” directs our attention to the counterfactual—what would have happened if the plaintiff had been white? This focus fits naturally with the ordinary rule that a plaintiff must prove but-for causation. If the defendant would have responded the same way to the plaintiff even if he had been white, an ordinary speaker of English would say that the plaintiff received the “same” legally protected right as a white person. Conversely, if the defendant would have responded differently but for the plaintiff’s race, it follows that the plaintiff has not received the same right as a white person. Nor does anything in the statute signal that this test should change its stripes (only) in the face of a motion to dismiss.
IV. Issues with the Bostock Rationale Applied to Racial Discrimination
As society continues to view race as analogous to gender, the Bostock decision could have unintended consequences with the application of race discrimination laws, such Title VII and section 1981, in employment disputes with individuals like Rachel Dolezal, who have in the past sued their former employers for racial discrimination and been unsuccessful. Now, under Bostock’s reasoning, a court might hold that it would be impossible to discriminate against a person for being transracial without discriminating against that individual based on race. Doing so raises several concerns, addressed below.
A. Separation of Powers
Both Justices Alito and Kavanaugh emphasized that the Bostock majority’s annexation of sexual orientation and gender identity as sex discrimination did not comply with both the plain language and historical underpinnings of Title VII. Under the separation-of-powers doctrine, the decision to protect sexual orientation under Title VII rests properly with Congress, not the judiciary.
Like with gender identity, neither reverse passing nor transracial identity was considered by Congress when drafting Title VII. These concepts did not exist until around 2017, when Rachel Dolezal, a white woman at birth, publicly identified as a Black female.
B. Classes
The Bostock majority’s comparison of gender identity discrimination and race discrimination seems to imply that race is also inextricably intertwined with other traits or behaviors. While Congress in 1964 did not initially consider gender identity and sexual orientation as subcategories of sex, they did recognize skin color and national origin as protected classes under Title VII, which overlap significantly with race. Similarly to sex, Congress does not define race in either Title VII or section 1981. Title VII does not define color either; however, the courts and the EEOC read color to have its commonly understood meaning pigmentation, complexion, or skin shade or tone. While race and color clearly overlap, they are not synonymous. Color discrimination can occur between persons of different races or ethnicities, or between persons of the same race or ethnicity. Skin color has also been raised in disability discrimination cases. Additionally, national origin has no statutory definition under Title VII. The Supreme Court has held that national origin refers to plaintiffs’ or their ancestors’ place of birth. Similarly, the EEOC considers national origin as covering ethnic groups and places of origin, rather than strictly countries of origin under Title VII. This expands protection for individuals whose ethnic or national identity does not fit neatly into a country of origin.
With that said, it seems clear that while skin color and national origin have overlap with race, neither of them is “inextricably bound” with race. Like Michael Jackson for example, the existence of his vitiligo does not necessarily make him Caucasian.
1. Comparing Race and Gender
As mentioned earlier, a growing debate exists as to whether race is comparable to gender. According to one study, while most individuals who identified as transracial began to discover their transracial identity at an early age, some began to transition during adulthood.
While social transition might be similar for gender and race, medical treatments are viewed differently. The generally accepted standard of care for transgender individuals who seek medical transitions frame surgery and other interventions not as cosmetic, because they are “variously, medically and psychologically necessary, central to personal integrity and mental health, outside history and driven by a universal struggle, and motivated by a kind of suffering beyond the control of the individual.” By contrast, medical care in the race context is viewed as cosmetic surgery, which, in turn, is viewed predominantly a “self-indulgent luxury, instrumentally undertaken, driven by fad and fashion, peripheral to individuals’ well-being, and frivolously self-interested,” at least in the context of transracial identity.
2. Misperceived Race
The intentionality behind reverse passing makes it distinct from “perception discrimination” which occurs when, for instance, a person who self-identifies as Asian is misperceived as Latino and suffers an adverse employment action as a result of this misperception.
In response to the Bostock decision, the EEOC released a fact sheet that (a) briefly explained what the Bostock decision means for LGBTQ+ workers (and all covered workers) and for employers across the country, and (b) highlighted the EEOC’s established legal positions on LGBTQ+–related matters, as had been adopted by vote by the Commission in other matters. The fact sheet suggests ways in which perception discrimination may arise. For instance, the EEOC stated that employers covered by Title VII are not allowed to fire, refuse to hire, or take assignments away from someone (or discriminate in any other way) merely because customers or clients would prefer to work with people who have a different sexual orientation or gender identity, and that employers are also not allowed to segregate employees based on actual or perceived customer preferences. Furthermore, in response to whether an employer is allowed to discriminate against an employee because the employer believes the employee acts or appears in ways that do not conform to stereotypes about the way men or women are expected to behave, the EEOC wrote:
No. Whether or not an employer knows an employee’s sexual orientation or gender identity, employers are not allowed to discriminate against an employee because that employee does not conform to a sex-based stereotype about feminine or masculine behavior. For example, employers are not allowed to discriminate against men whom they perceive to act or appear in stereotypically feminine ways, or against women whom they perceive to act or appear in stereotypically masculine ways.
In analyzing Justice Gorsuch’s rationale, the Bostock decision has the potential to open the doors for perception discrimination disputes involving other classes, such as race, color, and national origin. In her seminal 2013 law review article on perception discrimination, Professor D. Wendy Greene argued that all categorical discrimination plaintiffs—that is, all individuals who have allegedly suffered discriminatory treatment on the basis of their actual or a mistaken identity should be entitled to vindicate their statutory rights to be free from unlawful discrimination. Greene’s article does not take into account the effects of reverse passing. Nor does her analysis predict how the “but-for” causation standard would be applied to reach Bostock’s result for sex discrimination under Title VII and whether that might reach race discrimination under either Title VII or section 1981.
Furthermore, if it is impossible to intentionally discriminate against an individual applicant or employee without even knowing whether they identify as Latino, for example, then it would seem impossible to argue that the employer intentionally discriminated because of race.
C. Promoting Legal Reverse Passing
Adopting transracial identity as part of race discrimination means that a Caucasian male, who wants to identify as an African-American male can sue a Caucasian supervisor for racial discrimination, thus abandoning the view that only intentional discrimination claims based upon an individual’s actual protected status are cognizable under Title VII or section 1981. This is problematic for a few reasons.
1. Similar Experiences from Members of a Particular Community
By adopting transracial identity as a subcomponent of race under the nation’s discrimination laws, this would allow individuals who successfully pass as a different racial or ethnic group to be entitled to the protections offered to that group, even if they do not experience the systemic discrimination faced by members of that community. This is perhaps one of the biggest aspects that make transgender identity distinct from transracial identity. While some critics may view Dylan Mulvaney as engaging in exaggerated expressions of girl behavior, Mulvaney is not a reflection of all individuals who undergo gender transition. Merely wearing a dress does not make someone a woman, just as merely liking Mexican food and culture does not make one Hispanic. But there are experiences that transgender women may share with cisgender women, such as relationship problems, and even anti-feminine discrimination.
2. Distorting Section 1981
Next, adopting transracial identity as a subcomponent of race in employment discrimination laws would allow individuals the ability to manipulate and alter the purpose of section 1981, which was written during a time when African-Americans as a group were being systematically discriminated against by whites. As mentioned earlier, section 1981 is a provision of the Civil Rights Act of 1866 that was enacted by the Thirty-Ninth United States Congress. The act had three primary objectives for the integration of African Americans into the American society following the Civil War: 1) a definition of American citizenship; 2) the rights which come with this citizenship; and 3) the unlawfulness to deprive any person of citizenship rights “on the basis of race, color, or prior condition of slavery or involuntary servitude.” Recognizing transracial discrimination would mean that white people will be able to both culturally reverse pass as nonwhite to gain political or social advantages and legally reverse pass to acquire bigger recovery in the event that (a) they are terminated or denied a promotion at work and (b) they file suit and claim discrimination on the basis of race. Individuals with vitiligo may also utilize section 1981 to overcome a damages cap by using such skin disorders as a means of pursuing racial discrimination claims.
Second, it potentially opens up the floodgates for more employment discrimination lawsuits, since section 1981 has a longer statute of limitations and does not require any administrative exhaustion.
A. Proposed Solutions
To prevent Plaintiffs from using transracial identity as a means of legal reverse passing, there are perhaps two solutions to consider.
1. Retaining an Actuality Approach
Greene argues that undoing an actuality analysis under Title VII would promote equitable recovery for aggrieved Plaintiffs, who have suffered from discrimination based upon mistaken identity. Greene’s proposal fails to consider the significant legal advantages that section 1981 provides, however. Moreover, because Greene’s article does not take into consideration the issue of reverse passing or the Bostock Court’s expansive application of “but-for” causation, her proposal too serves as a “pirate ship” in that it promises fairness and inclusion, but in reality opens up negative social and legal consequences.
2. Multifactor Analysis
In the alternative, courts and employers may adopt more rigorous scrutiny to assess claims of racial discrimination in cases involving potential racial reverse passing. By considering multiple factors beyond self-identification, such as ancestral lineage, family history, medical information, or community recognition, the judiciary can better distinguish between genuine claims, perception discrimination cases, and those influenced by reverse passing.
Conclusion
Since the emergence of Rachel Dolezal, the concepts of racial reverse passing and transracial identity have been continuously criticized, mainly because of the use of a minoritized identity as a form of legal or social gain. But as the concept of identity becomes more fluid, the debate as to whether race is comparable to sex and gender continues to exist. Oli London is one of the first individuals to challenge this comparison by identifying as both a different race and a different gender.
Likewise, the Bostock decision’s impact on sex discrimination and its application to race raises a need for careful consideration of its impact on employment discrimination law as a whole. While the practice presents challenges to identifying discrimination and defining protected classes, a bigger question arises as to whether the law should be adapted by adopting more robust scrutiny and acknowledging the complexities of multiple intersecting identities. Prior to the conception of reverse passing and transracial identity, scholars have advocated for more equitable approaches to Title VII in response to the issues of perception discrimination. Not only are such approaches outdated, but also fail to recognize that discrimination laws protecting racial identity can provide more significant advantages than those prohibiting sex discrimination, such as individual liability, damages awarded, and little administrative intervention. Therefore, striking the right balance between protecting individuals from discrimination and addressing potential abuses will be crucial as the legal landscape continues to evolve in response to the Bostock decision and the issues it raises.
