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Excerpted From: Camille Gear Rich, Elective Race: Recognizing Race Discrimination in the Era of Racial Self-identification, 102 Georgetown Law Journal 1501 (June 2014) (191 Footnotes) (Full Document)


CamilleGearRichOur story begins with the curious case of Eric Longmire, a biracial man who seemingly elected to live out his life at work as a white person. Unfortunately, things took a bad turn 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 white and 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 coworkers to coerce Longmire into assisting the employer in an unrelated legal proceeding. The court appeared deeply skeptical when presented with the facts of Longmire's case because the account he provided did not comport with the traditional account of “racial passing.” Longmire admitted that he told his employer of his mixed-race background at the start of his employment; the court questioned, why then 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 the 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 the descriptive and analytic power of post-racialism. The first camp, composed of post-racial scholars, argues that we have transcended race. 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. But post-racialists would argue that, today, this kind of racial deception is wholly unnecessary. Longmire's claim should fail, in their view, because he felt free to disclose his race to his employer and 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 sheds no light on either the validity of the post-racial account or the true state of race relations in Longmire's workplace.

The second camp, composed of traditional race-discrimination scholars, argues that Longmire's tale is not so strange at all. Instead, Longmire's story establishes the falsity of the post-racial account and confirms their claim that race continues to serve as a primary basis for social subordination. Specifically, the traditional account of race discrimination posits that Longmire's employer hired Longmire knowing that he was a minority worker, but decided to undercompensate Longmire because of his race. Additionally, the traditional account of race discrimination counsels that we should take the employer's threat to disclose Longmire's racial secret quite seriously, as the threat reveals that both Longmire and his employer understood that whiteness provided significant social and material benefits in Longmire's workplace. These benefits made Longmire's decision to “pass” as white disappointing, but understandable. Also, traditional race-discrimination scholars less sympathetic to Longmire's account might describe Longmire as a modern morality tale, one that warns multiracials about the dangers of adopting a fluid approach to racial identification. They would argue that Longmire, having made the decision to pass, to strategically disavow his minority status (and the associated burdens) in certain contexts, should not be surprised to find that the race-discrimination protections under antidiscrimination law were not available to him.

Longmire provides rich fodder for participants in the current debate over the validity of the post-racial account; however, the case is offered here in pursuit of a different, far richer opportunity. 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 traditional account of race discrimination. Specifically, 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 dignity concerns of individuals as they attempt to control the terms on which their bodies are assigned racial meaning. The era of elective race will require judges and scholars to develop a nuanced understanding of the autonomy 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 their focus because, during this era, many workplace discrimination conflicts will not involve anti-minority bias as it has been traditionally understood. The traditional account of race discrimination suggests that discrimination is primarily motivated by status contests between clearly defined and independent racial groups. In contrast, the new elective-race cases will more often involve individuals that occupy the margins of racial categories, and their claims will concern attempts to control the deployment of race definitions and the terms on which their bodies are assigned racial meaning.

The unique value the elective-race framework provides becomes apparent when one uses it to interpret the Longmire case because it produces novel insights and demonstrates the limitations of other models. Indeed, careful review shows that Longmire's allegations are based on two rights claims unique to the elective-race framework. Specifically, his claims stem from his desire for recognition of his right to racial autonomy--the right to control the terms on which his body is assigned a racial identity. Alternatively, his claims might be described as allegations concerning his “racial privacy interests.” His pay discrimination claim, his claims of extortion, and his alleged constitutional privacy claim all converge on a single theme: the employer's unauthorized disclosure and use of Longmire's racial information. In supplying this reading, the elective-race framework provides a strong rejoinder to the post-racial account because it debunks the claim that race is a conceptual relic, unnecessary for understanding contemporary realities. Instead, the elective-race framework recognizes the centrality of race: both Longmire and his employer were keenly sensitive to Longmire's autonomy interest and privacy interest in controlling his employer's use of facts about his race. Additionally, both understood the power the employer enjoyed because of its access to Longmire's racial information.

The readings produced under an elective-race framework also challenge traditional race-discrimination scholars. The elective-race framework rejects claims about the obdurate, all-encompassing nature of white privilege and the need for racial passing. Instead, the framework allows for a more nuanced account that explains why Longmire informed his employer of his mixed background at the start of his employment, and later, other coworkers as well. The elective-race framework suggests that, rather than attempting to pass as white, Longmire was exercising his privacy right and his autonomy right to orchestrate limited and controlled disclosure regarding the facts of his racial identity. Longmire's conduct suggests that he felt he should be able to control who was aware of the facts about his race, and further, that he had an autonomy interest in controlling how those facts were utilized by others. Consequently, Longmire's right to relief under employment discrimination law must turn on whether we are willing to recognize his privacy and autonomy interests in shaping his experience of racialization.

This Article posits that we are in a key moment of discursive and ideological transition, an era in which the model of elective race is ascending, poised to become one of the dominant frameworks for understanding race in the United States. Because we are in a period of transition, many Americans still are wedded to fairly traditional attitudes about race. For these Americans, race is still an objective, easily ascertainable fact determined by the process of involuntary racial ascription--how one's physical traits are racially categorized by third parties. The elective-race framework will challenge these Americans to recognize other ways in which people experience race, including acts of voluntary affiliation as well as selective and conditional affiliations. Importantly, even if one concludes that most Americans still hold traditional, ascriptive-based understandings of race, there is evidence that elective race is steadily gaining influence in certain quarters, shaping government institutions' formal procedures as well as certain Americans' racial understandings.

To improve the clarity and precision of discussions about elective race, this Article outlines the key premises and norms associated with this ideological framework. My primary goal is to help courts and scholars understand the basic tenets and tensions that are likely to be present in plaintiffs' elective-race claims. Although some scholars have trivialized racial self-identification interests or represented them as a threat to antidiscrimination law, my project is to show that racial self-identification decisions matter in concrete ways because they can trigger serious race-based social sanctions that are a core antidiscrimination law concern. Indeed, as we will see, voluntary racial-affiliation decisions can and do trigger race-based resentment, rejection, and social sanction when they do not match certain expected or established American understandings about the boundaries of racial categories. Moreover, I predict that, though the number of cases that sound in the nature of elective race may be small at present, we should expect to see more cases of this kind given both the increased focus Americans place on the interest in racial self-identification and the shift toward institutional protocols that are intended to accommodate this interest. The elective-race cases will challenge courts, forcing them to decide whether Title VII of the Civil Rights Act of 1964 (Title VII) should recognize the autonomy claims of individuals who are injured in the workplace by the social and formal processes of involuntary racialization. Courts will be asked to rule on cases that suggest that an employee's dignity interests are unjustly frustrated when others fail to respect the employee's right to racial self-definition.

Part I of the Article examines the different ways the concept of elective race is understood by laypersons and institutions. I show that neither lay understandings nor institutional understandings of elective race are fully developed, but both rest on dignity, privacy, and autonomy norms that emphasize the importance of racial self-identification. Additionally, I show that each of the two approaches to elective race has something to teach the other in order to fully accommodate the individual autonomy and social justice needs at the heart of contemporary conflicts about race. Part II explores the elective-race framework's descriptive potential. Section A explores the way the construct allows us to see relationships between otherwise seemingly unrelated areas of employment-discrimination scholarship. Section B explores the framework's ability to render visible certain overlooked constituencies in need of antidiscrimination protections and better explains their interests and motivations.

Part III explores the elective-race cases, namely cases that turn on the dignity, autonomy, and privacy norms at the heart of the elective-race framework. I show that courts are dismissive and often hostile to plaintiffs' claims based on elective race despite evidence that state and federal administrative agencies are increasingly starting to recognize the importance of the right to racial self-definition. I explain that some courts appear committed to racial-identification norms that posit that an individual's race is her “social race”--the race she is involuntarily assigned by third parties based on her perceived appearance or social practices. However, this focus on the plaintiff's social race proves profoundly naïve and underinclusive in the era of elective race. In order to fully protect plaintiffs from race-based social sanction, courts will have to adopt a more comprehensive model that accounts for the multiple ways in which people are racialized, including self-identification. Additionally, courts must account for the multiple motivations discriminators have for imposing sanctions, some of which differ from classic racial animus. Racial hostility can be triggered when a person “elects” her race, demanding social or institutional recognition of membership in a given racial category for which her employer or coworkers believe she has no valid claim of belonging. Part III offers courts a series of principles, presumptions, and bright-line rules that can be used to more fairly adjudicate elective-race cases.

Part IV surfaces the background normative principles that must be considered if we are to give elective-race plaintiffs comprehensive protections. Although many intuitively recognize that elective-race claims are consistent with Title VII's goals, a deeper analysis of the values and norms that inform elective-race plaintiffs' claims must be developed if we are to offer these plaintiffs a consistent, principled set of protections. To this end, Part IV examines the dignity, autonomy, and privacy norms that inform elective-race plaintiffs' claims and examines their connections to, and differences from, the traditional Civil Rights Era account of discrimination that informs Title VII. Drawing from the work of antidiscrimination scholars working on the politics of self-identification in other areas of antidiscrimination law, Part IV explores critiques and concerns about the rise of elective race and their implications for Title VII cases. Part IV ultimately shows that many elective-race claims should be accommodated under Title VII, but they must be cabined in ways that acknowledge the continuing significance of social race and the need for government institutions and employers to privilege social race when collecting data and investigating patterns of discrimination. Part IV, however, also posits that Title VII should not singularly focus on discrimination triggered by social race. Rather, Title VII can and should protect employees from sanctions based on their self-identification decisions and hostile uses of employees' private racial data.

[. . .]

This Article introduces the ideological framework I call “elective race” as a way of documenting the growing influence of models of race that privilege the right of racial self-definition, as opposed to privileging involuntary racialization triggered by physical traits and social ascription. Persons who have adopted elective race as their dominant frame for understanding discrimination are primed to take offense at hostile acts triggered by voluntary acts of racial identification. These voluntary racial-identification acts can be casual verbal declarations in a social context or more formal responses given in the context of administrative data collection. As this discussion has shown, the biggest contrast between elective race and other models of racial identity is that this framework assumes that racial identity will be fluid for many social actors. Consequently, individuals may make shifts in racial-identity claims as a result of discontinuities between physical appearance and self-concept or in response to particular structural concerns and social discrimination. In this way, the model of elective race treats racial identification as being more akin to the choices individuals make with regard to sexual orientation, which is more widely recognized to be an identification pattern that varies for an individual depending on context, life period, and even life chances. Alternatively, it might be compared to the choices individuals make with regard to religious identification, which similarly may vary based on life circumstances, the manner in which a question is asked, one's current social practices, or class position.

The description of elective race provided here will provide essential assistance to courts and scholars analyzing future elective-race cases under Title VII and other areas of antidiscrimination law. 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 obligation to protect individuals who subject themselves to this process. The EEOC's regulations on this issue suggest that these elective-race understandings are reasonable but defeasible. This Article further explores this proposition, demonstrating that the dignity, autonomy, and privacy interests elective-race plaintiffs raise must be weighed against the equally critical antidiscrimination purposes racial-data collection serves for the state.

My ambitions in this piece are multiple. One goal is to show how the elective-race framework can enrich antidiscrimination discussions. Indeed, the elective-race framework is a powerful descriptive tool allowing us to better understand the experiences and concerns of racially liminal, multiracial, and phenotypically ambiguous persons, and resolve those concerns on a fair and principled basis. It will also allow us to better describe the injuries these individuals suffer as they negotiate administrative inquiries and race-related data-collection efforts in the workplace. Additionally, the framework will help elective-race plaintiffs render visible the core antidiscrimination interests at stake in some of the seemingly minor antidiscrimination claims alleging injury from what employers would describe as technical mistakes or misclassifications with regard to racial identity. The Article shows that, at present, many courts and scholars are skeptical of plaintiffs' claims that sound in elective race, without fully understanding the basis for the plaintiffs' claims of injury or considering whether their claims are linked to important values and norms at the heart of American antidiscrimination law. By offering a comprehensive description of elective race, this Article attempts to provide courts and scholars with a better basis for understanding the justice and fairness claims raised by plaintiffs in elective-race cases.

The Article also provides independent value to employment-discrimination scholars. My goal is to help scholars move past the impasse on post-racialism and the traditional account of discrimination to recognize contemporary race dynamics that simply are not well-represented in the literature. Additionally, the framework is offered to help antidiscrimination scholars recognize connections and contextualize scholarship that otherwise does not appear to share a common theme. Scholarship on multiracialism, performativity, and whiteness studies have common points of interest, particularly as more white multiracials bring antidiscrimination claims. Finally, my hope is to begin a broader philosophical discussion about what it means, as a normative matter, to recognize autonomy and privacy interests related to race. By doing so, we can ensure that the elective-race framework brings analytic clarity to our discussions as we examine the injuries alleged by persons who, for various reasons, hold views about race discordant with traditional American racial-categorization norms, and therefore have difficulty navigating American racial-data-collection regimes.

Courts and practitioners should also find value in the Article because it provides a series of concrete tools to assist in adjudicating cases. Although the core principles associated with elective race are articulated in fairly broad and abstract terms, the discussion instrumentalizes many of the elective-race principles. Additionally, the discussion covers the necessary understandings, presumptions, and bright-line rules that courts and practitioners need to make sense of more thorny elective-race disputes. Finally, the Article also speaks to policymakers. I show that the growing influence of elective race does not necessarily require that we abandon all data-collection efforts that require employers to identify and count employees based on perceived social race, even if this counting offends the sensibilities of their workers. Rather, the era of elective race instead requires that the government offer cogent and persuasive reasons why social race matters, and why racial-data-collection efforts based on social race are essential to the public good. Certainly, policymakers are right to have lingering concerns about regulations that require employers to involuntarily racially classify employees, but we must also recognize that racial assignment for administrative purposes has little effect on the freedom one exercises to define oneself. Being involuntarily racially labeled or categorized by an employer or a state official simply is not, and should not be regarded as, an act that becomes constitutive of one's own experience of racialization. Indeed, most of the employer-determined documentary-race decisions that are made will 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.

In summary, by providing a broad conceptual map that organizes the terrain before us, it is my hope that we will develop more principled understandings of the elective-race cases, and in this way respect the identity claims and experiences of a broader range of workplace discrimination plaintiffs. One thing is clear: we can no longer afford to treat the individual's interest in racial self-identification as a mere annoyance or unnecessary complication in data-collection efforts. Rather, these self-identification decisions can trigger racial skirmishes in the workplace over the boundaries of racial categories that should be a core Title VII concern. We also should not presume that a new focus on voluntary racial identity will necessarily detract from efforts to assist persons subject to racialization based on their physical features. Rather, our goal must be to actively engage with the growing discourse on elective race and ensure that it develops in a manner that continues to recognize the importance of racially-associated physical characteristics and the established sedimented patterns of social subordination in minority communities. Only in this way can we ensure that all constituencies that experience race discrimination in the workplace are adequately served.

Associate Professor of Law, University of Southern California, Gould School of Law. Georgetown Law Journal

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