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Employment Discrimination
Section 1 . 3

By Any Other Name? On Being "Regarded As" Black, and Why Title VII Should Apply Even If Lakisha and Jamal are White

Angela Onwuachi Willig & Mario Barnes, 2005 Wis. L. Rev. (2005).

Erin Buzuvis

It is readily accepted among race scholars, including sociologists, that race, although considered primarily in terms of physical features, carries different meanings based upon societal understandings of particular groups. In other words, discrimination against racial minorities, Blacks in particular, is not merely the result of an aversion to dark skin in itself, but to what that dark skin signifies. For many employers, dark skin has signified laziness, unproductivity, and other stereotypes that have wrongfully been associated with all black workers.

To this end, numerous scholars have challenged and criticized the idea of race as a mere biological fact, demonstrating the ways in which race is formed and transformed under a constantly shifting society. For example, Professors Michael Omi and Howard Winant have theorized about how race is formed in society through a sociohistorical process that may transform, create, or eliminate racial categories. Likewise, Professor Ian Haney López has explained the ways in which race, although often signaled by phenotype, is a social construct.Indeed, in addition to physical features, race can and has been defined by a variety of identifying factors, such as class, geography, and politics.

Because race is not purely physical but also socially constructed, racial discrimination often takes the form of unfavorable treatment based upon socially constructed ideas about characteristics that are viewed as being linked to a particular racial group.As Professor Juan Perea once explained, “Identifying traits need not . . . be physical. In our culture, foreign-sounding names, like corresponding accents or languages, often elicit prejudice.”

Indeed, several recent studies have demonstrated the ways in which race is socially constructed around characteristics that have come to signal or gain meaning as a defining feature of a racial group and, as a result, have created a basis on which employers and others may discriminate against an individual due to race-based associations or prejudices toward such characteristics. In the same way that people “often link color with undesirable personal qualities such as laziness, incompetence, and hostility,” they also often link factors, such as name or voice, with color and race and any attendant negative stereotypes. In other words, characteristics such as a person's name or voice can, in some instances, “carry enough ethnic meaning to . . . burden [his or her] daily existence with stereotypes imposed by others.

[I]ndividuals are not only discriminated against on the job market because of animus toward their racial group as defined by phenotype, but also because they are perceived, whether consciously or unconsciously, as belonging to a particular racial group and as having the negative qualities linked to stereotypes of that group. For instance, an individual, whether or not he or she actually is black, may be discriminated against because he or she is perceived to be or “regarded as” black (that is, what it socially means to be black) based upon a proxy for blackness....

Given the trend in Title VII case law, a black plaintiff with an African American-sounding name who sent a résumé to a prospective employer could not state a claim for race discrimination even if she could show that an applicant with a similar résumé but a white-sounding name received a callback and she did not. The black plaintiff's claim would likely fail in federal courts on the ground that the two factors, name and race, while highly correlated, are not equivalent. Likewise, if a white plaintiff filed a claim asserting that she was not given a callback because “she sounded too black,” her claim would likely fail even if the employer admitted that the sound of the applicant's voice was the reason for the decision. The reasoning would be that discriminating against someone because they “sound black” is not discrimination on the basis of an impermissible trait and therefore is not covered by Title VII.

Such rulings by federal courts, however, would be misguided because they would essentially eviscerate one of the purposes of Title VII--to combat decisions based upon negative stereotypes associated with particular racial groups.They would fail to acknowledge the fact that discrimination based upon race actually encompasses discrimination based upon social meanings of race--that is, what it means to be perceived as black, whether one is or is not actually black. Moreover, these holdings by courts would actually fly in the face of the Supreme Court's actual words in Hazen Paper [a case about the Americans with Disabilities Act], where the Court specifically noted that it did not intend to “preclude the possibility that an employer who targets employees with a particular [feature] on the assumption that these employees are likely to [belong to a certain group] thereby engages in . . . discrimination.” As the Supreme Court explained in Hazen Paper, an employer may have discriminated against an individual where the employer has “suppose[d] a correlation between two factors and act[ed] accordingly.”

If nothing else, Hazen Paper and the purposes of Title VII indicate that claims brought by an individual who has experienced discrimination because he or she was “regarded as” belonging to a certain race should fall under the protection of Title VII.

It is readily accepted among race scholars, including sociologists, that race, although considered primarily in terms of physical features, carries different meanings based upon societal understandings of particular groups. In other words, discrimination against racial minorities, Blacks in particular, is not merely the result of an aversion to dark skin in itself, but to what that dark skin signifies.46 For many employers, dark skin has signified laziness, unproductivity, and other stereotypes that have wrongfully been associated with all black workers.47

*1296 To this end, numerous scholars have challenged and criticized the idea of race as a mere biological fact, demonstrating the ways in which race is formed and transformed under a constantly shifting society. For example, Professors Michael Omi and Howard Winant have theorized about how race is formed in society through a sociohistorical process that may transform, create, or eliminate racial categories.48 Likewise, Professor Ian Haney López has explained the ways in which race, although often signaled by phenotype, is a social construct.49 Indeed, in addition to physical features, race can and has been defined by a variety of identifying factors, such as class, geography, and politics.50

Because race is not purely physical but also socially constructed, racial discrimination often takes the form of unfavorable treatment based upon socially constructed ideas about characteristics that are viewed as being linked to a particular racial group.51 As Professor Juan Perea once explained, “Identifying traits need not . . . be physical. In our culture, foreign-sounding names, like corresponding accents or languages, often elicit prejudice.”52

Indeed, several recent studies have demonstrated the ways in which race is socially constructed around characteristics that have come to signal or gain meaning as a defining feature of a racial group and, as a result, have created a basis on which employers and others may discriminate against an individual due to race-based associations or prejudices toward such characteristics.53 In the same way that people “often link color with undesirable personal qualities such as laziness, incompetence, and hostility,”54 they also often link factors, such as *1297 name or voice, with color and race and any attendant negative stereotypes. In other words, characteristics such as a person's name or voice can, in some instances, “carry enough ethnic meaning to . . . burden [his or her] daily existence with stereotypes imposed by othersIt is readily accepted among race scholars, including sociologists, that race, although considered primarily in terms of physical features, carries different meanings based upon societal understandings of particular groups. In other words, discrimination against racial minorities, Blacks in particular, is not merely the result of an aversion to dark skin in itself, but to what that dark skin signifies.46 For many employers, dark skin has signified laziness, unproductivity, and other stereotypes that have wrongfully been associated with all black workers.47

*1296 To this end, numerous scholars have challenged and criticized the idea of race as a mere biological fact, demonstrating the ways in which race is formed and transformed under a constantly shifting society. For example, Professors Michael Omi and Howard Winant have theorized about how race is formed in society through a sociohistorical process that may transform, create, or eliminate racial categories.48 Likewise, Professor Ian Haney López has explained the ways in which race, although often signaled by phenotype, is a social construct.49 Indeed, in addition to physical features, race can and has been defined by a variety of identifying factors, such as class, geography, and politics.50

Because race is not purely physical but also socially constructed, racial discrimination often takes the form of unfavorable treatment based upon socially constructed ideas about characteristics that are viewed as being linked to a particular racial group.51 As Professor Juan Perea once explained, “Identifying traits need not . . . be physical. In our culture, foreign-sounding names, like corresponding accents or languages, often elicit prejudice.”52

Indeed, several recent studies have demonstrated the ways in which race is socially constructed around characteristics that have come to signal or gain meaning as a defining feature of a racial group and, as a result, have created a basis on which employers and others may discriminate against an individual due to race-based associations or prejudices toward such characteristics.53 In the same way that people “often link color with undesirable personal qualities such as laziness, incompetence, and hostility,”54 they also often link factors, such as *1297 name or voice, with color and race and any attendant negative stereotypes. In other words, characteristics such as a person's name or voice can, in some instances, “carry enough ethnic meaning to . . . burden [his or her] daily existence with stereotypes imposed by othersIt is readily accepted among race scholars, including sociologists, that race, although considered primarily in terms of physical features, carries different meanings based upon societal understandings of particular groups. In other words, discrimination against racial minorities, Blacks in particular, is not merely the result of an aversion to dark skin in itself, but to what that dark skin signifies.46 For many employers, dark skin has signified laziness, unproductivity, and other stereotypes that have wrongfully been associated with all black workers.47

*1296 To this end, numerous scholars have challenged and criticized the idea of race as a mere biological fact, demonstrating the ways in which race is formed and transformed under a constantly shifting society. For example, Professors Michael Omi and Howard Winant have theorized about how race is formed in society through a sociohistorical process that may transform, create, or eliminate racial categories.48 Likewise, Professor Ian Haney López has explained the ways in which race, although often signaled by phenotype, is a social construct.49 Indeed, in addition to physical features, race can and has been defined by a variety of identifying factors, such as class, geography, and politics.50

Because race is not purely physical but also socially constructed, racial discrimination often takes the form of unfavorable treatment based upon socially constructed ideas about characteristics that are viewed as being linked to a particular racial group.51 As Professor Juan Perea once explained, “Identifying traits need not . . . be physical. In our culture, foreign-sounding names, like corresponding accents or languages, often elicit prejudice.”52

Indeed, several recent studies have demonstrated the ways in which race is socially constructed around characteristics that have come to signal or gain meaning as a defining feature of a racial group and, as a result, have created a basis on which employers and others may discriminate against an individual due to race-based associations or prejudices toward such characteristics.53 In the same way that people “often link color with undesirable personal qualities such as laziness, incompetence, and hostility,”54 they also often link factors, such as *1297 name or voice, with color and race and any attendant negative stereotypes. In other words, characteristics such as a person's name or voice can, in some instances, “carry enough ethnic meaning to . . . burden [his or her] daily existence with stereotypes imposed by othersA. Race as a Social Construct
It is readily accepted among race scholars, including sociologists, that race, although considered primarily in terms of physical features, carries different meanings based upon societal understandings of particular groups. In other words, discrimination against racial minorities, Blacks in particular, is not merely the result of an aversion to dark skin in itself, but to what that dark skin signifies.46 For many employers, dark skin has signified laziness, unproductivity, and other stereotypes that have wrongfully been associated with all black workers.47
*1296 To this end, numerous scholars have challenged and criticized the idea of race as a mere biological fact, demonstrating the ways in which race is formed and transformed under a constantly shifting society. For example, Professors Michael Omi and Howard Winant have theorized about how race is formed in society through a sociohistorical process that may transform, create, or eliminate racial categories.48 Likewise, Professor Ian Haney López has explained the ways in which race, although often signaled by phenotype, is a social construct.49 Indeed, in addition to physical features, race can and has been defined by a variety of identifying factors, such as class, geography, and politics.50
Because race is not purely physical but also socially constructed, racial discrimination often takes the form of unfavorable treatment based upon socially constructed ideas about characteristics that are viewed as being linked to a particular racial group.51 As Professor Juan Perea once explained, “Identifying traits need not . . . be physical. In our culture, foreign-sounding names, like corresponding accents or languages, often elicit prejudice.”52
Indeed, several recent studies have demonstrated the ways in which race is socially constructed around characteristics that have come to signal or gain meaning as a defining feature of a racial group and, as a result, have created a basis on which employers and others may discriminate against an individual due to race-based associations or prejudices toward such characteristics.53 In the same way that people “often link color with undesirable personal qualities such as laziness, incompetence, and hostility,”54 they also often link factors, such as *1297 name or voice, with color and race and any attendant negative stereotypes. In other words, characteristics such as a person's name or voice can, in some instances, “carry enough ethnic meaning to . . . burden [his or her] daily existence with stereotypes imposed by others.”55
The next section of this Article, Part I.B, will discuss several features that are often used as proxies for determining an individual's race, in particular a person's name and voice or accent.56 Part I.B.1 focuses on the use of names as proxies for race in social and legal situations, and Part I.B.2 concentrates on the use of voice, or the sound of a voice specifically, as a proxy for race, ethnicity, and national origin under similar circumstances.
B. The Operation of Proxies for Race
1. name
In the post-Civil Rights Era, where employers are readily aware that outward racial prejudices are not a legally acceptable basis for making employment decisions, employers can and do use proxies for race, both consciously and unconsciously, as a means of excluding *1298 certain workers from jobs.57 For example, as stated in the Introduction of this Article, two scholars, Bertrand and Mullainathan, conducted a study on employment discrimination in hiring that demonstrated the ways in which job applicants face discrimination entirely based on social signals of race due to their names,58 in particular whether their names sounded like African American or white names.59 In fact, in these experimental cases, the Boston- and Chicago-area employers that were sent the identical fictitious résumés of applicants with both African American and white-sounding names never saw faces for the matching fictitious applicants, nor did they have any means for determining the race of an applicant other than the applicant's names themselves.60 Yet, those with African American-sounding names stood at a significant disadvantage in the callback process, with applicants with white-sounding names receiving fifty percent more callbacks.61 In essence, an applicant with a white-sounding name and no markers that identified him or her as black could expect one callback for every ten job advertisements while an African American “would need to apply to *1299 15 different ads to achieve the same result.”62 As Bertrand and Mullainathan asserted, “a white name yield[ed] as many more callbacks as an additional eight years of experience” would have yielded for an African American.63
Additionally, Bertrand and Mullainathan found that the gap between black and white job applicants widened with résumé quality.64 Although higher quality résumés65 generally resulted in higher callback rates, the benefit of having a higher quality résumé for a perceived African American applicant was statistically insignificant but was statistically significant for those perceived to be white applicants.66 The callback rate for white applicants with a higher quality résumé was eleven percent compared to 8.8 percent for those with lower quality résumés, with a statistically significant difference of 2.51 percentage points or thirty percent.67 However, black applicants with higher quality résumés received callbacks 6.99 percent of the time, compared to 6.41 percent of the time for those with lower quality résumés, resulting in just a .58 percent difference in percentage points, or nine percent.68
*1300 After the results of Bertrand and Mullainathan's study were revealed, numerous reporters interviewed human resources employees to verify the results, finding that in many instances such employees were encouraged, if not ordered, to eliminate applications or résumés with African American-sounding names.69 Indeed, some job applicants, who are readily aware of hiring biases based on ethnic-sounding names, have purposefully used names other than their own on their résumés to apply for jobs.70 These job applicants might include a Latino Guillermo who becomes William or a black Tyree who simply becomes Ty. In fact, numerous actors and actresses of color have changed their names to white-sounding names in order to avoid prejudices in the film and television industries. For example, Martin Sheen, star of the hit television series The West Wing, changed his name from Ramon Estevez, later explaining his decision by proclaiming “I know what it means to have an Hispanic name.”71
Moreover, discrimination based on the perceived ethnicity or race of an applicant due to name is not limited to people of color. Just as a *1301 black Nyasha may be excluded on the basis of discrimination caused by racial stereotyping due to her ethnic-sounding name, a white applicant named Nyasha, who did not in some way identify herself as white on her résumé, could suffer similar discrimination simply because of her name, which may have incorrectly signaled to hiring decision-makers that she was black or even the “wrong kind” of White.72
One could argue, however, that employers who make decisions based upon the sound of a name alone are not acting solely on the basis of race, but instead may also be drawing inferences about a number of the applicant's traits. For instance, employers who make a decision based on an applicant's name could be making a decision based upon social class. This would certainly seem plausible given the results of another recent study that claims to measure the effect of having black racially-identifiable names on teacher expectations and test performance within elementary education.73 In this study, Professor David Figlio asserts that teachers and school administrators expect less from children with “names that are associated more with low socio-economic status, names that are disproportionately given to black children.”74 He then theorizes that this disparate treatment may partially explain the testing gap between Blacks and Whites because “names concentrated in the black community are related to diminished student test performance in mathematics and reading.”75 He further claimed that, even among names with a high blackness index, the names with the greatest correlation to lower socioeconomic status experienced the largest test gap, even among children who came from the same family.76
*1302 While the importance of class as a discriminatory tool should not be minimized, substituting class analysis for discussions of race is dangerous, especially where poor white workers are not generally subject to the assumptions related to racial stereotypes that affect poor Blacks.77 An argument that decision-makers within labor markets can decouple race and class status also neglects socially constructed meanings of race and how that construction can employ class as a tool to infer which “kinds” of Blacks are acceptable in the workplace. More importantly, as Bertrand and Mullainathan demonstrated in their study, within the labor market context, it was race (even in its strictly physical sense), and not class, that was predominantly at work in the decision of the employers in the study.78 Even when Bertrand and Mullainathan signaled factors such as class to employers with addresses in predominantly white and more educated neighborhoods, applicants with African American-sounding names yielded no greater returns.79 Although applicants who lived in more educated and higher income neighborhoods had a higher probability of receiving a callback, there was no evidence that African Americans benefited any more than Whites from living in such neighborhoods.80 Indeed, as Bertrand and Mullainathan indicated, “if ghettos and bad neighborhoods are particularly stigmatizing for African Americans, one might have expected African Americans to be helped more by having a ‘good’ address.”81 In sum, it was the names of the perceived African American applicants and the ways in which such names signaled negative social background and characteristics, such as laziness and incompetence, that resulted in the racial discrimination, and not any other external factors.82
*1303 For courts to allow discrimination that is based on names that correlate with blackness, but which does not directly involve an explicit race-based decision, misses the reality of living as a “raced” person in the United States.83 It also treats the use of proxies, more generally, as typically not cognizable within antidiscrimination law. This seems bizarre given that courts routinely traffic in the most prevalent proxy for race: color.84 At bottom, studies, such as the one conducted by Bertrand and Mullainathan, remind us that not all disfavored citizens and workers are created (un)equal. Society operates on the *1304 understanding that there are bad and good (or not quite as bad) Blacks85 or rather that there are bad Blacks and Blacks who have achieved the status of “honorary Whites.”86
Names then become difference-markers or tools to distinguish between the acceptable and unacceptable Blacks. The tool could be a proxy for race and socioeconomic status, social compatibility, or political agenda. Race, however, is always present in the consideration. What one's name tells the world about how one performs his or her race controls the ultimate decision.87 That decision has implications for both the culture of the work environment and the behavior of minority workers.
By distinguishing between name-based discrimination and race discrimination, courts send a signal to employers as to what values and forms of regulation are acceptable within the workplace. At some point, we must ask how the use of proxies as a basis for discrimination harms the workplace. In the résumé context, giving import to names as a proxy for identity invites dubious racial consideration into the work environment by remapping racial constructions onto items that might *1305 otherwise be substantially race-neutral.88 Additionally, Professor Tristin Green has recently surmised that business practices, such as appearance codes, result in a discriminatory work environment where minorities are punished for failing to “fit in.”89 She further theorizes that courts avoid recognizing the discrimination aspects of the cases by seeing them through the prism of “business prerogative” rather than antidiscrimination.90 Strangely, similar to the justification for appearance codes, businesses could claim that they avoid ethnic names for business reasons, regardless of an individual's race, because, for example, their customers or partners do not relate to Lakishas or Jamals.91 Our question then is: should employers be permitted to use this type of justification when such policies endorse the rejection of persons who are presumed tainted by stereotypical notions of what race means? We believe Title VII requires the answer to be no. Even where there are legitimate business reasons, using race in this way results in at least a mixed-motive discrimination claim.92 Until some proper business purpose is advanced, however, such discrimination violates Title VII because it results in disparate treatment of those perceived as racial minorities.93
*1306 Beyond the work environment, there are also consequences to individual personal choices and behaviors stemming from such practices. The concept that there are preferred behaviors and statuses even among generally disfavored groups reinforces the notion of race as a social construction. It also results in a group of individuals who cover by intentionally acting in a way that avoids identifiers of the unacceptable performance of blackness.94 According to some scholars, this type of behavior should be expected.

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