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D. Wendy Greene

Abstracted from: D. Wendy Greene, Categorically Black, White, or Wrong: “Misperception Discrimination” and the State of Title VII Protection, 47 University of Michigan Journal of Law Reform 87 - 166 (Fall 2013) (370 Footnotes)


John has a caramel brown complexion, green eyes, and dark, wavy hair. Since he began working for his employer, John’s co-workers have consistently aimed derogatory names and comments at him. Everyday they call him a “wetback” and “an illegal,” and they instruct him “to go back to Mexico.” Instead of John, his co-workers call him “Juan Valdez.” At least once, John also arrived to his work cubicle only to be greeted with pictures of a man named “Juan” with a noose around his neck and an attached note that reads, “Go back where you came from!” John has complained to his supervisor about his co-workers’ comments and the picture depicting his lynching. He has explained, to no avail, that his co-workers are harassing him because they misperceive him to be of Mexican origin. To John’s knowledge, he does not have any Mexican ancestry; he, his parents, and his grandparents have self-identified as Black, non-Hispanic. Even when he reported the offensive conduct to his supervisor, his supervisor responded, “Well, you do look Mexican,” and continued to call him “Juan Valdez” alongside other employees.

John believes that he is the victim of racial harassment and is thinking seriously about suing his employer for racial discrimination. Seemingly, John is experiencing what this Article deems “categorical discrimination”-- invidious, differential treatment on the basis of race or another protected characteristic he should have a colorable claim of discrimination under Title VII of the 1964 Civil Rights Act. However, a disturbing, counterintuitive development is transpiring within the federal judiciary. It is quite plausible that a court would conclude that, based upon his specific allegations of race-based invidious treatment, John cannot seek relief under the federal antidiscrimination laws that prohibit race discrimination in the workplace.

Though it is commonly understood that Title VII makes it unlawful for employers to treat individuals invidiously and differentially on the basis of race, religion, sex, national origin, and color, a number of federal courts have rejected this interpretation of Title VII’s scope in cases of “misperception discrimination.” In cases like John’s, courts have imposed an “actuality requirement” for Title VII protection. According to these courts, only intentional discrimination claims based upon an individual’s actual protected status are cognizable under Title VII. Therefore, John can benefit from Title VII’s protection against intentional race discrimination only if he is in fact of Mexican descent or if he brings forth specific allegations of invidious, differential treatment because of his Black, non-Hispanic ancestry.

This result is illogical and inequitable. John’s case does not present claims of discrimination that are any less injurious or remediable than if he were to maintain a conventionally framed employment discrimination case in which he alleged discriminatory treatment because of his self-identified Black, non-Hispanic racial identity. Accordingly, this Article posits that plaintiffs in misperception discrimination cases, like plaintiffs in conventionally framed cases, are asserting allegations of invidious, differential treatment on the basis of Title VII’s proscribed characteristics. In other words, they have been subjected to “categorical discrimination.” Thus, misperception discrimination plaintiffs are likewise entitled to statutory protection against unlawful discrimination in the workplace.

This Article demonstrates that courts’ adoption of an actuality requirement in Title VII cases is categorically wrong. It represents a counterproductive, contrary, and disconcerting position within antidiscrimination law that, if left unexamined and unchallenged, can easily result in a wholesale lack of relief for victims of discriminatory treatment of the very nature that Congress meant to eliminate from the workplace. Moreover, in light of increased immigration, cultural diversity, interracial marriage, and transracial adoption, as well as the formal recognition of multi-racial identity and more fluid self-characterizations of racial, ethnic, religious, and gender identity, claims stemming from misperceptions about a plaintiff’s protected status may become as commonplace as traditional claims of discrimination based upon an individual’s self-classified identity. Continued application of an actuality requirement in intentional discrimination cases not only fails to respond to these real and ongoing demographic changes in American society but can also engender pervasive discrimination on the basis of race, religion, national origin, color, and sex in contemporary workplaces. Consequently, many individuals will be left without protection against categorical discrimination within Title VII’s meaning and reach.

Additionally, imposition of an actuality requirement in categorical discrimination cases not only inflicts obvious injury on discrimination plaintiffs but also yields unexpected repercussions for antidiscrimination law theory, policy, and praxis, which this Article illuminates and aims to remedy. Overall, this Article seeks to end this narrow interpretation of antidiscrimination law generally and Title VII more specifically, which has fast become the predominant interpretive methodology in misperception discrimination cases and has also been employed in conventionally framed discrimination cases. Part I of this Article briefly outlines Title VII’s protections and prohibitions. Part II details the development of an implicit and express espousal of an actuality requirement in intentional discrimination cases in which plaintiffs contended that their employers’ misperceptions about their race, national origin, and/or religion motivated adverse employment actions, such as harassment or termination.

Part III investigates courts’ reasoning for adopting an actuality requirement and argues that these judicial decisions are based on an unsettling misinterpretation of Title VII. Primarily, these courts have reasoned that, unlike the Americans with Disabilities Act (ADA), which expressly affords protection to individuals discriminated against because of their perceived identity, Title VII protects against discrimination because of an individual’s actual identity. Yet, by adopting an actuality requirement in Title VII cases, federal courts have patently disregarded the indelible nexus between employer perception and the resulting invidious, differential treatment, a relationship that courts recognize in ADA cases. Per these courts, to recognize misperception discrimination in the Title VII context would expand statutory protection to a new class of individuals whom Congress did not intend to protect.

Seemingly, the actuality requirement advanced in misperception discrimination cases also derives from a literal interpretation of the plain language of Title VII’s substantive provision, which prohibits discrimination “because of such individual’s race, sex, national origin, color, and religion.” More precisely, however, Part III continues by positing that the development of an actuality requirement is the product of an excessively rigid application of the protected class approach first adopted by the Supreme Court in McDonnell Douglas v. Green. Courts’ intransigence represents a disturbing interpretative methodology that this Article terms an “anti-anticlassificationist” interpretation of Title VII. This approach rejects one of the conventionally accepted purposes of Title VII: to prohibit all decision making on the basis of Title VII’s proscribed traits, whether benign or invidious, in furtherance of a norm of individual fairness.

Part IV examines the alarming, counterproductive implications of courts’ anti-anticlassificationist interpretation and attendant creation of an actuality mandate in intentional discrimination cases. Part IV.A explores the creation of a minimalist “actuality defense.” Part IV.B discusses the emergence of identity adjudication in all intentional discrimination cases. It then details the reality of racial determination litigation in contemporary race discrimination cases and the continued reification of a discredited view of race as a fixed, biological construct. Thus, Part IV.B exposes the implications of an actuality requirement and posits that the creation of an actuality defense and the inundation of identity adjudication in both conventionally framed and misperception discrimination cases obfuscate the chief issue in such cases: whether the plaintiff suffered invidious, differential treatment on proscribed grounds.

Part V proffers a number of practical and theoretical interventions that practitioners, jurists, and legal scholars have not fully explored, yet which are critical in quelling further impairment of Title VII’s meaning, protection, and efficacy. Specifically, Part V.A unveils the under-examined Fifth Circuit precedent of EEOC v. WC & M Enterprises and EEOC guidance. Both of these precedents recognize misperception discrimination cases, reject an actuality requirement in Title VII intentional discrimination cases, and embrace the fact that subjective perceptions about a discrimination victim’s protected status animate the invidious, differential treatment from which she suffers. Part V.B provides additional underexplored jurisprudential support for the cessation of an actuality requirement in Title VII cases via its examination of Fogleman v. Mercy Hospital. In that case, the Third Circuit expressly legitimized misperception discrimination cases and acknowledged the interconnectedness of employer perceptions and the resulting discrimination in the Title VII context.

In Part V.C, this Article posits that, like the Third Circuit in Fogelman, the Supreme Court in Thompson v. North American Stainless, LP implicitly denounced a showing of actuality as a prerequisite to maintain a Title VII action. Consequently, all categorical discrimination plaintiffs--despite the fact that the alleged discriminatory treatment they experienced may have emanated from their self-ascribed or mistaken identity-- have standing to maintain a cause of action under Title VII. In both instances, plaintiffs assert claims of discrimination clearly “within the zones of interests protected by Title VII” and are “persons aggrieved” by a covered employer’s unlawful employment practices. Thus, satisfying an actuality requirement should not be required for plaintiffs in conventionally framed or misperception discrimination cases to vindicate their statutory rights to be free from racial, religious, color, national origin, and sex discrimination in the workplace.

* * *

This Article unearths an alarming movement within antidiscrimination law, theory, and praxis. Some courts have employed an anti-anticlassificationist interpretation of Title VII in misperception and conventionally framed discrimination cases and, in the process, have imposed upon plaintiffs an unnecessary actuality requirement before they can benefit from Title VII protection. Per some federal courts, plaintiffs in misperception discrimination cases are automatically deemed unprotected because the discriminatory treatment they suffer is not on the basis of their actual protected status. The imposition of an actuality requirement in conventionally framed discrimination cases has afforded employers a minimalist actuality defense to escape Title VII’s requirements and imposed upon plaintiffs an onerous burden to prove their actual identity in order to maintain their case when their identity is challenged. Neither of these developments addresses the central issue in Title VII intentional discrimination cases: whether an individual suffered invidious, differential treatment on the basis of race, color, national origin, religion or sex.

Therefore, courts’ anti-anticlassificationist statutory interpretation is categorically wrong: it defies human categorization, ignores the innate interaction between individual perception and resulting discrimination, and deprives discrimination plaintiffs of the very protection against categorical discrimination that Title VII is meant to provide. Indeed, rather than protecting individuals against invidious, differential treatment engaged in by covered employers, courts’ anti-anticlassificationist interpretation of Title VII fosters irremediable race, color, sex, national origin, and religious discrimination in the workplace. Thus, the continued reification of an actuality requirement in intentional discrimination cases must cease before Title VII’s meaning, purpose, and protection are further impaired. Towards that end, in its presentation of Third Circuit, Fifth Circuit, and Supreme Court jurisprudence, Title VII’s statutory language, and the EEOC’s interpretive guidance, this Article firmly establishes that all individuals who suffer categorical discrimination at the hands of a covered employer on the basis of race, color, sex, national origin, or religion--regardless of whether the discriminatory treatment emanates from their self-ascribed or mistaken identity --are protected under Title VII.


Professor and Director of Faculty Development, Cumberland School of Law at Samford University.