Angela Onwuachi-Willig and Mario L. Barnes, By Any Other Name?: On Being "Regarded as" Black, and Why Title VII Should Apply Even If Lakisha and Jamal Are White, 2005 Wis. L. Rev. 1283 (2005), https://digitalcommons.law.uw.edu/faculty-articles/554
Wisconsin Law Review
Applying theories concerning the social construction of race, this Article borrows from the definition of disability under the Americans with Disabilities Act of 1990 (ADA) and the courts' analyses of disability discrimination cases under the "regarded as" disabled provision of the ADA, which allows a plaintiff to bring a claim against an employer who regards the plaintiff as having an impairment that substantially limits a major life activity. Using the "regarded as" provision as a model, this Article proposes a new method for recognizing discrimination claims based on the use of proxies for race-even when those proxies have been used in a way that mistakenly identifies someone as belonging to a certain race. In other words, we recognize that it is not physical race but the presumptions of "disability," or rather the constructed social meanings of race, that trigger both conscious and unconscious forms of discrimination. This Article argues that to redress discrimination in the workplace, courts must recognize employment discrimination claims where one is, for example, "regarded as" black, with all of the socially ascribed negative stereotypes of the group.
Part I of this Article examines and exposes the ways in which race is socially constructed and analyzes several studies, including that of Bertrand and Mullainathan, to demonstrate how the construction of race by cultural and social factors can have damaging effects on the job market and in general society for those perceived as belonging to certain racial groups. Part II analyzes the current framework for evaluating individual disparate treatment cases based on race, describes how federal courts have mostly failed to recognize the way in which characteristics such as race are socially constructed and carry socially significant racial meanings, and details such courts' general treatment of proxy discrimination claims brought under various antidiscrimination statutes. Part III of the Article argues that current case law ignores the fact that this form of decision-making based on proxies for race is a form of racial stereotyping and is actually disparate treatment based on race. It then borrows from a framework used in proving disability discrimination under the ADA to recommend a novel approach for courts to use in evaluating cases where a proxy for race was used to discriminate against a person-that is, where a plaintiff is "regarded as" belonging to a certain racial group, with all of the attendant socially ascribed negative stereotypes of the group. Finally, this Article concludes by explaining the importance of maintaining the effectiveness of Title VII by judicially interpreting such legislation in a manner that comports with the realities of racism and race discrimination.