¨draft- please do not cite, copy or circulate without the author’s ... · ¨draft- please do not...

¨Draft- Please do not cite, copy or circulate without the author’s permission

1

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.


2

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)


3

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.


4

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.


5

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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6

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‖).


7

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)


8

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)


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).

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1919716


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.


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


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-


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)


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.


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).


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


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).

http://www.eeac.org/public/03-133a.pdf

http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0001043&FindType=Y&SerialNum=1965078314

http://hrtrainingcenter.com/readArticle.asp?AID=1000022


18

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)


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.‖)




20

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.


21

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


22

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


23

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.‖


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


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)


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.




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)


28

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


29

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 __.


30

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


31

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)


32

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

http://web2.westlaw.com/result/result.aspx?mt=208&db=ALLFEDS&rlt=CLID_QRYRLT5446292617123&ss=CNT&scxt=WL&fmqv=c&cfid=1&rp=%2fWelcome%2f208%2fdefault.wl&eq=Welcome%2f208&rlti=1&cnt=DOC&query=eeoc+guidelines+voluntary+self+identify+race+visual+assessment+classification&vr=2.0&method=WIN&fn=_top&service=Search&dups=false&n=4&sv=Split&sskey=CLID_SSSA8325292617123&rs=WLW12.01

http://web2.westlaw.com/result/result.aspx?mt=208&db=ALLFEDS&rlt=CLID_QRYRLT5446292617123&ss=CNT&scxt=WL&fmqv=c&cfid=1&rp=%2fWelcome%2f208%2fdefault.wl&eq=Welcome%2f208&rlti=1&cnt=DOC&query=eeoc+guidelines+voluntary+self+identify+race+visual+assessment+classification&vr=2.0&method=WIN&fn=_top&service=Search&dups=false&n=4&sv=Split&sskey=CLID_SSSA8325292617123&rs=WLW12.01


33

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.


34

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.


35

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).


36

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.


37

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)


38

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


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)




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).