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CATEGORICALLY BLACK, WHITE, OR WRONG: "MISPERCEPTION DISCRIMINATION" AND THE STATE OF TITLE VII PROTECTION

D. Wendy Greene

U. Mich. J.L. Reform, Vol.47 pp.87-1051, 2013 [Peer Reviewed Journal]

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  • Title:
    CATEGORICALLY BLACK, WHITE, OR WRONG: "MISPERCEPTION DISCRIMINATION" AND THE STATE OF TITLE VII PROTECTION
  • Author: D. Wendy Greene
  • Subjects: Characteristic; Discrimination; Differential; Experiencing; Grandparents; Consistently; Introduction; Categorical; Misperceive; Harassment; Education Law; Family Law; Healthcare Law; Immigration Law; Labor & Employment Law
  • Is Part Of: U. Mich. J.L. Reform, Vol.47 pp.87-1051, 2013
  • Description: ... Afshar, like the vast majority of intentional discrimination plaintiffs, relied upon circumstantial evidence to prove his claims of discrimination and satisfied the McDonnell Douglas analytical framework in doing so. ... In other words, since Burrage was not actually Mexican as his co-workers and supervisors allegedly perceived him to be, he could not satisfy a prima face case of race discrimination. ... Nothing Borrowed: Courts' Refusal to Apply the ADA's Perception Theory to the Title VII Context Uniformly, without exploring Title VII's purpose or meaning or even referencing the EEOC's express guidance on misperception discrimination, a band of federal district courts and one federal appellate court have concluded that cases involving invidious, differential treatment motivated by an employer's misperceptions about an employee's race, religion, or national origin (and by extension, color or sex) are beyond Title VII's scope. ... Conversely, to the extent that courts misconstrue claims of misperception discrimination as radically different from conventionally framed claims of discrimination, courts' anti-anticlassificationist interpretation could also be the manifestation of what Professor Jed Rubenfeld describes as an "anti-antidiscrimination agenda," whereby courts cite to textual grounds to quash a plaintiff's theory of discrimination "perceived to take antidiscrimination ideology too far" by "extending antidiscrimination ideas to unusual contexts." ... The confluence of these outcomes - no protection against discrimination and no protection against retaliation suffered for those opposing misperception discrimination - will engender unbridled invidious, differential treatment in the workplace motivated by misperceptions about employees' protected status and activity, as such categorical discrimination can ensue without legal consequence. ... In the following sections, in lieu of arguing for the transplantation of the ADA's "regarded as" language to Title VII, this Article presents Title VII jurisprudential support and EEOC directives to show that all individuals alleging categorical discrimination on the basis of Title VII's proscribed characteristics are already entitled to statutory protection and have standing to maintain a claim of discrimination, regardless of whether their identity was correctly perceived. ... In 2002, the EEOC reinforced its earlier guidance by enumerating that unlawful national origin discrimination under Title VII embodies: employment discrimination against an individual based on the employer's belief that he is a member of a particular national origin group, for example, discrimination against someone perceived as being Arab based on his speech, mannerisms, and appearance, regardless of how he identifies himself or whether he is, in fact, of Arab ethnicity. ... 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.
  • Language: English
  • Identifier: ISSN: 0363-602X
  • Source: Academic Law Reviews (LexisNexis┬«)

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