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Homework answers / question archive / Completed Assignment Instructions: For your Unit 5 Complete assignment, write a narrative essay (minimum 1700 words) in which you address and discuss the questions and statements listed below with Introduction, Content encompassing the questions below, Unit concepts, Summary, and References

Completed Assignment Instructions: For your Unit 5 Complete assignment, write a narrative essay (minimum 1700 words) in which you address and discuss the questions and statements listed below with Introduction, Content encompassing the questions below, Unit concepts, Summary, and References

Writing

Completed Assignment Instructions:

For your Unit 5 Complete assignment, write a narrative essay (minimum 1700 words) in which you address and discuss the questions and statements listed below with Introduction, Content encompassing the questions below, Unit concepts, Summary, and References. This is not a Q&A assignment. Use at least four scholarly sources and remember to demonstrate a thorough understanding of the READ and ATTEND sections in your essay. Cite your sources in APA format.

References with the articles attached:

Nance, C. E. (2005). Colorable Claims: The Continuing Significance of Color Under Title VII Forty Years After Its Passage. Berkeley Journal of Employment & Labor Law, 26(2), 435–474.

NARINE, M. L. (2015). Fifty Years After the Passage of Title Vii: Is It Time for the Government to Use the Bully Pulpit to Enact a Status-Blind Harassment Statute? St. John’s Law Review, 89(2/3), 621–655.

Robinson, R. K., & Allen, B. M. (1993). Sexual harassment in the workplace: A review of the legal rights and responsibilities of... Public Personnel Management, 22(1), 123. https://doi-org.bethelu.idm.oclc.org/10.1177/009102609302200109

Bryson, A., Cappellari, L., & Lucifora, C. (2010). Why So Unhappy? The Effects of Unionization on Job Satisfaction. Oxford Bulletin of Economics & Statistics, 72(3), 357–380. https://doi-org.bethelu.idm.oclc.org/10.1111/j.1468-0084.2010.00587.x

Hatchell, H., & Aveling, N. (2008). Those Same Old Prejudices? Gendered Experiences in the Science Workplace. Journal of Workplace Rights, 13(4), 355–375. https://doi-org.bethelu.idm.oclc.org/10.2190/WR.13.4.b

Textbook(s) - Mello, J. A. (2015). Strategic human resource management (4th Ed.). Cengage.

Complete Assignment Questions:

  • Why does illegal discrimination persist over 55 years after the passage of Title VII of the 1964 Civil Rights Act?
  • What Constitutes Sexual Harassment? What rights and responsibilities does an alleged recipient of Sexual Harassment have?
  • With unions declining in the U.S. why should your present or a previous employer be concerned about unionization?
  • What have been your experiences or observations where you work or have worked when a perceived or real discrimination issue arose and how was it handled by the Human Resources Department?

Colorable Claims: The Continuing Significance of Color Under Title VII Forty Years After Its Passage Cynthia E. Nancef I. II. III. INTRODUCTION 435 A BRIEF HISTORY OF COLORISM IN THE UNITED STATES 440 RESEARCH ON THE IMPACT OF COLORISM ON RACIAL MINORITIES 442 A. African Americans and Colorism B. Latinos and Colorism C. Asians and Colorism IV. COLORISM—"MADE IN THE U.S.A."? V. COLORISM IN THE COURTS A. B. VI. 445 449 453 458 462 Cases Brought By the EEOC Cases Brought By Individuals 1. Cases Brought by Light Skinned Plaintiffs 2. Cases Brought by Dark-SkinnedPlaintiffs 3. Cases that Conflate Color with Race and/or National Origin CONCLUSION 462 464 465 467 471 473 I. INTRODUCTION We believe that all men are created equal—yet many are denied equal treatment. We believe that all men have certain inalienable rights. We believe that all men are entitled to the blessing of liberty—^yet millions are deprived of those blessings, not because of their own failures, but because of the color of their skins.' The fortieth anniversary ofthe Civil Rights Act of 1964 is a milestone marking the passage of legislation that literally changed the complexion of t Associate Professor, University of Arkansas, Fayetteville Law School. 1. President Lyndon B. Johnson, Radio and Television Remarks Upon Signing the Civil Rights Act of 1964 (July 2, 1964), available at http://www.lbjlib.utexas.edu/johnson/archives.hom/ speeches.hom/640702.asp. 436 BERKELEY JOURNAL OF EMPLOYMENT & LABOR LA W Vol. 26:2 the workforce.^ Title VII of the Act prohibits discrimination in employment on the basis of sex, race, national origin, religion, and color.^ Although the meanings of the terms "color" and "race"" may appear to be obvious, they are neither defmed by the statute nor discussed in the legislative history of the act.^ Congress's failure to defme these terms leaves the courts with 2. "Title VII has indeed accomplished a sea change in the face of employment in America, and it's easy to take that for granted." William Robinson, Remarks at the "Celebrating the 40th Anniversary of Title Vll" panel discussion hosted by the U.S. Equal Employment Opportunity Commission (June 22, 2004), available at http://www.eeoc.gov/abouteeoc/40th/panel/40thpanels/panell/transcHpt.html; Ronald Turner, Thirty Years of Title VII's Regulatory Regime, Rights, Theories and Realities, 46 ALA. L. REV. 375, 386 (1995). "[T]itle Vll had an immediate and a demonstrable impact on employment discrimination at the time of and in the years following the enactment of the statute " Id. at 386. 3. The Act applies to private employers, state and local governments, and education institutions that employ fifteen or more individuals. It also covers private and public employment agencies, labor organizations, and joint labor management committees controlling apprenticeship and training. 42 U.S.C. 2003e-2 (2004). See also EEOC, Employers and Other Entities Covered by EEO Laws, http://www.eeoc.gov/abouteeo/overview_coverage.html (last visited Dec. 20, 2004). 4. Race, in the physical sense, has been called a "morphology-based ascription" that includes such features as skin color, hair texture, and nose or eye shape. See Camille G. Rich, Performing Racial and Ethnic Identity: Discrimination by Proxy and the Future of Title VII, 79 N.Y.U. L. REV. 1134, 1146 (2004). However, many scholars recognize that race is in fact a social construct. Ariela J. Gross, Litigating Whiteness: Trials of Racial Determination in the Nineteenth Century South, 108 YALE L.J. 109, 114 (1998); Barbara Fields, Slavery, Race, and Ideology in the United States of America, NEW LEFT REV., May/June (1990) at 95, 117; Ian F. Haney Lopez, The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 HARV. C.R.-C.L. L. REV. 1 (1994). The Supreme Court in Saint Francis College v. Al-Khazraji, a case involving a § 1981 claim by an Iraqi plaintiff, acknowledged that "clear-cut racial categories do not exist" and that "some, but not all, scientists . . . conclude that racial classifications are for the most part sociopolitical, rather than biological, in nature." Saint Francis College v. Al-Khazraji, 41 U.S. 604, 610 n.4 (1987). 5. Tauyna Lovell Banks, Colorism: A Darker Shade of Pale, 47 UCLA L. REV 1705, 1732 (2000). The EEOC, the agency charged with administering Title VII, has not defined the term color in its interpretive guidelines or regulations. The agency's approach to race is found on the employer's reporting form, known as the EEO-1. The instructions to this form explain race as follows: Race/ethnic designations as used by the Equal Employment Opportunity Commission do not denote scientiftc definitions of anthropological origins. For the purposes of this report, an employee may be included in the group to which he or she appears to belong, identifies with, or is regarded in the community as belonging. However, no person should be counted in more than one race/ethnic group. The race/ethnic categories for this survey are: White (Not of Hispanic origin) - All persons having origins in any of the original peoples of Europe, North Africa, or the Middle East. Black (Not of Hispanic origin) - All persons having origins in any of the Black racial groups of Africa. Hispanic - All persons of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish culture or origin, regardless of race. Asian or Pacific Islander - All persons having origins in any of the original peoples of the Far East, Southeast Asia, the Indian Subcontinent, or the Pacific Islands. This area includes, for example, China, India, Japan, Korea, the Philippine Islands, and Samoa. American Indian or Alaskan Native - All persons having origins in any of the original peoples of North America, and who maintain cultural identification through tribal affiliation or community recognition. 2005 THE CONTINUING SIGNIFICANCE OF COLOR UNDER TITLE VII 437 more discretion to define the boundaries of color and race.* Thus, the courts have the flexibility to recognize that discrimination based on skin color, which is often tied to perceptions of race, is a distinct harm that includes both interracial and intraracial discrimination.' For purposes of this discussion, colorism describes the tendency to perceive or behave negatively towards members of a racial category based on the lightness or darkness of their skin tone.* The majority of colorism cases involve a plaintiff who was treated less favorably due to his or her darker skin color.' Although color is an independent basis for a discrimination claim, few plaintiffs have based their discrimination claim on color, resulting in relatively fewer reported cases based on color than on race discrimination.'° Moreover, many of the cases alleging color discrimination also allege race discrimination, blurring the basis of the plaintiffs' discrimination claims." Furthermore, even the Equal Employment Opportunity Commission, the agency charged with the enforcement of Title VII, tends to be fuzzy on the distinction between the two classifications.'^ As Professor U.S. Equal Employment Opportunity Comm'n, Standard Form 100, Rev. 3 - 97, Employer Information Report EEO-1 Instruction Booklet, at 5, available at http://www.eeoc.gov/eeolsurvey/elinstruct.pdf. For a criticism of the EEOC's defmition of race, see Note, Who's Black, Who's White, and Who Cares: Reconceptualizing the United State's Defmition of Race and Racial Classifications, 48 VAND. L. REV, 513,536-42(1995). 6. See, e.g., Felix v. Marquez, No, 78-2314, 1981 WL 275 (D,D.C, Mar. 26, 1981) ("[T]he legislative history of these acts is silent on the meaning of the term "color," and no defmitive interpretation has been provided by the courts , . ."); Banks, supra note 5, at 1732 ("The legislative record's silence on the meaning of the term 'color' leaves courts free to determine on their own whether color is synonymous with 'race' as traditionally understood, or whether color constitutes an independent category,"), 7. Trina Jones, Shades of Brown, The Law of Skin Color, 49 DUKE L.J. 1487, 1498 (2000), 8. Keith Maddox & Stephanie Gray, Cognitive Representations of Black Americans: Reexploring the Role of Skin Tone, 28 PERSONALITY & SOC. PSYCHOL, BULL. 250 (2002); Jones, at 1488 (defining colorism as "the prejudicial treatment of individuals falling within the same racial group on the basis of skin color"). 9. For this reason, some scholars have adopted the term "colorism" to refer to discrimination against dark-skinned, but not light-skinned blacks. See Banks, supra note 5, at 1709; Leonard M. Baynes, If It's Not Just Black and White Anymore, Why Does Darkness Cast A Longer Discriminatory Shadow than Lightness? An Investigation and Analysis of the Color Hierarchy, 75 DENVER U, L. REV. 131 (1997); Ronald E. Hall, Skin Color Bias: A New Perspective on an Old Social Problem, 132 J. SoC. PSYCH. 238(1998), 10, See Mary-Kathryn Zachary, Labor Law for Supervisors: Color Discrimination Under Title VII, 64 SUPERVISION 23 (2003) ("For many years after the statute's passage, courts were confronted with cases involving claims of race, religion, sex or national origin discrimination. Color discrimination cases were virtually nonexistent."). 11, See. e.g., Bryant v. Bell Atlantic Maryland, Inc., 288 F.3d. 124 (4th Cir. 2002); Davis v. Durham Mental Health Developmental, 320 F. Supp.2d 378 (M.D.N.C, 2004); Davis v, Quebecor World, No. 01 C 8014, 2002 WL 27660 (N.D, 111. Jan, 10, 2002). 12, For example, in discussing the settlement of a race discrimination case, EEOC Regional Manager Richard Quick said "[p]eople should not be deterred from getting or keeping a job because of the color of their skin." Press Release, EEOC, Supercuts to Pay $3.5 Million for Race Bias and Train Hundreds of Managers (Aug. 13, 2003), available at http://www.eeoc.gov/press/8-13-03. On the agency's homepage where there is a listing of "Discrimination by Type: Facts and Guidance," color is not listed. 438 BERKELEY JOURNAL OF EMPLOYMENT & LABOR LA W Vol. 26:2 Trina Jones observes, people are not accustomed to thinking about race and skin color as separate concepts: People often confuse skin color and race because skin color is used to assign people to racial categories. Indeed, color is commonly used to describe the difference between racial categories (i.e.. Black is used to describe African-Americans and White is used to describe Caucasians). In addition, people are misled because of the positive correlation between the values associated with being a member of the White race and the values attributed to a lighter skin tone.'^ The notion that race and color are identical is widespread, despite existing research that demonstrates that an individual's perception of others is influenced by skin color.'" For example, an old Christian Sunday school hymn invokes the language of skin color in the lyrics, "Red and yellow, black and white, they are precious in his sight.'"^ Even racial minority groups have adopted the language "people of color" to describe themselves.'* Although much of the discourse on color focuses on the difference between races, skin color variations exist within racial groups as well as between them." The prevalence of colorism and its effects are well docu- EEOC website, www.eeoc.gov (last visited Dec. 24, 2004). Instead, if one clicks on the listing for "race," a page opens entitled, "Race/Color Discrimination." EEOC, Race/Color Discrimination, http://www.eeoc.gov/types/race.html (last visited Dec. 24, 2004). The site explains the prohibited discrimination as follows: "Race-Related Characteristics and Conditions: Discrimination on the basis of an immutable characteristic associated with race, such as skin color, hair texture, or certain facial features violates Title VII, even though not all members of the race share the same characteristic." See id. The site makes no further distinction between or explanation of race and color. 13. Jones, supra note 7, at 1487, 1497-98 (2000). 14. See, e.g., Jennifer Hochschild, From Nominal to Ordinal, Reconceiving Racial and Ethnic Hierarchy in the United States (Jan. 31, 2004) (unpublished manuscript, on file with author). "A smaller but persuasive line of research in psychology shows that skin color affects individuals' stereotypes of and treatment of others, both within racial or ethnic groups and across them. A huge set of writings in history, popular culture, the law, and literature, as well as an equal number of memoirs and essays, show the impact of skin color on laws, legal decisions, self-definitions, emotions, and interpersonal interactions." Id. at 65; see Baynes, supra note 9, at 157 ("Society puts people in different color categories in order to place individuals into different racial and ethnic groups. . . . [T]his information is then processed to make judgments about individuals."). 15. Herbert C. Woolston (lyrics) & George F. Root (music), Jesus Loves the Little Children. 16. In fact, this paper was selected as one of a panel on the fortieth Anniversary of Title VII to be presented at the 2"'' National People of Color Scholarship Conference in Washington, D.C. See also Steve Russell, Apples Are the Color of Blood, 28 CRIT. SOC. 65 (2002) ("Color is such a defining characteristic of America's racial disharmony that minorities often huddle together under the sobriquet 'people of color.'"). 17. See, e.g., Francis Assisi, Color Complex in the South Asian Diaspora, lND0LlNK.COM, June 22, 2004, http://www.modelminority.com/article821.html; Kari Browne, An Unhealthy Idea of Beauty, Ms., Fall 2004, at 60; Ernest Harburg et al.. Skin Color, Ethnicity, and Blood Pressure II: Detroit Whites, 68 AM. J. PuB. HEALTH 1184 (1978); Maddox & Gray, supra note 8 at 250; Clara E. Rodriguez, The Rainbow People, in PUERTO RiCANS BORN IN THE U.S.A. (1989); Alejandro Segura-Mora, What Color is Beautiful, NEA TODAY, Oct. 1999, at 7. 2005 THE CONTINUING SIGNIFICANCE OF COLOR UNDER TITLE VII 439 mented.'* "Color judgments appear with such regularity as to escape notice. Color permeates popular conceptions and preconceptions . . ."" Current social science research, the increase in Title VII color discrimination cases, the rise of "appearance" cases, and the growing dialogue on multiracial identification all lend credence to the notion that colorism is alive and well in the United States.^" One of the most thorough discussions of colorism, its historical development, and its impact on employment can be found in the article entitled Shades of Brown, the Law of Skin Color.^^ In that article. Professor Trina Jones traces the development of colorism from before the Civil War to the present and argues that the legal system must acknowledge and understand colorism in order to ensure equality in employment.^^ In an equally important and seminal article, Colorism: A Darker Shade of Pale, Professor Taunya Lovell Banks conducts a thorough examination of employment discrimination cases based on color and argues that although the courts are willing to recognize colorism in cases involving white and Latino plaintiffs, they are reluctant to do so in cases involving black plaintiffs.-^^ This Article, written on the fortieth anniversary of Title VII, builds on the work of these two scholars and provides additional support for the argument that color discrimination litigation will play an increasingly important role in the development of Title VII jurisprudence. The structure of the Article is as follows. Part II briefly describes the historical underpinnings of skin color discrimination in the United States. Part III presents recent social science research indicating the persistence of colorism as well as its lasting effects. This research demonstrates the need to be vigilant about colorism in the workplace and highlight the pemiciousness of the problem even as we celebrate the fortieth anniversary of Title VII. Part IV discusses whether colorism arising from other cultural biases which are not linked to the racial subjugation in United States history also should be cognizable under Title VII.^" Part V reviews recent color discrimination cases and their 18. See, e.g., infra notes 32 & 67. 19. Vicki L. Ruiz, Cotor Coded, NAT'L FORUM, Spring 2000, at 16. 20. See, e.g., Tanya K. Hernandez, "Muttiracial" Discourse: Raciat Ctassifications in and Era of Color-Blind Jurisprudence, 57 MD. L. REV. 97 (1998); Tanya K Hernandez, Mulliraciat Matrix: The Rote of Race Ideology in the Antidiscrimination Laws, A Untied States-Latin America Comparison, 87 CORNELL L. REV. 1093 (2002); Comment, Check One Box: Reconsidering Directive No. t5 and the Classification of Mixed Race People, 84 CAL. L. REV. 1233 (1996); Multiracialism: A Bibliographic Essay and Critique in Memory of Trina Grillo, 81 MINN L. REV. 1521 (1997); John a. powell. The Colorblind Muttiracial Dilemma: Racial Categories Reconsidered, 31 U.S.F .L. REV. 789 (1997). 21. See Jones, 5upra note 7. 22. W. at 1500-31. 23. Banks, supra note 5, at 1727. 24. Id. at 1732 n.l22 ("The court stated that colorism claims may be based on 'indigenous discriminatory practices around the world having nothing to do with the American experience.' This raises 440 BERKELEY JOURNAL OF EMPLOYMENT & LABOR LA W Vol. 26:2 holdings and notes their increased prominence in light ofthe EEOC's decision to make cases involving color discrimination one ofthe agency's priorities.^' II. A BRIEF HISTORY OF COLORISM IN THE UNITED STATES Focusing for the moment on Americans who happen to be black, we know and must recognize certain incontrovertible historical and contemporary facts, including the actuality and impact of 250 years of slavery; eighty years of legally enforced subordination of blacks; past and present social norms and realities that have kept and continue to keep many blacks "in the lowest status, least remunerative jobs, and (that have) denied them the chance to move up the occupational ladder"; and current views of African Americans held by many whites,-^* Much has been written on the history of skin color discrimination in the United States and its significance in the construction of social roles.^' I shall not retread that ground in this Article, but instead provide a brief explanation of the historical context of colorism to point out the continued need for the inclusion of color as a protected status under Title VII. As a result of the legacies of slavery and miscegenation, a need arose to determine whether mixed race children were Black or White. This distinction was important because many ofthe privileges of society were based upon race. In this situation, skin color played an important role in deter- an interesting point, whether diserimination based on foreign colorism practices, like those at issue in Aii, is actionable under Title VII. However this question is beyond the scope of this article."). 25. Another important development that may boost the number of color discrimination claims is the increasing number of individuals who identify themselves as multiracial. See Jones, supra note 7, at 1544-46; Banks, supra note 5, at 1741-43. 26. Turner, supra note 2, at 376 (quoting T. Alexander Aleinikoff, A Case for RaceConsciousness, 91 COLUM. L. REV. 1060, 1073 (1991)). 27. See Deidre Coleman, Janet Shaw and the Complexions of Empire, 36 EIGHTEENTH-CENTURY STUD. 169 (2003); Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV. 1709, 1710 (1993); Vema M. Keith & Cedric Herring, Skin Tone and Stratification in the Black Community, 97 AM. J. Soc. 760,761 (1991); Edward H. Ransford, Skin Color. Life Chances, and Anti-White Attitudes, 18 SOC. PROBS. 164 (1970); KATHY RUSSELL ET AL.. THE COLOR COMPLEX: THE POLITICS OF SKIN COLOR AMONG AFRICAN AMERICANS (1992); Ronald Turner, The Color Complex, 46 LAB. L. J. 679 (1995); R. Washington, Brown Racism and the Formation of a World System of Racial Stratification, 4 INTL. J. POL. & CULTURE 209 (1996). While the legacy of slavery imbued issues of color into the consciousness of a young nation, the significance of eolor predates the colonization ofthe America. See, e.g., Thomas Hahn, The Difference the Middle Ages Makes: Color and Race Before the Modern World, 31 J. MEDIEVAL & EARLY MOD. STUD. 1 (2001). "I wish, then, to argue that represented color difference is never innocent, neutral, or without cross-cultural evaluative meaning. While skin pigment (and physiognomony) in the ancient world did not at all signify racial difference in the same way as nineteenth century American, or within eighteenth-century European-African relations, it nonetheless signaled conscious and conventional distinctions based upon appearance, territorial and geopolitical diversity and power relations." Id. at 6. 2005 THE CONTINUING SIGNIFICANCE OF COLOR UNDER TITLE VII 441 mining race:^* "A fair complexion conferred a decided advantage in the late nineteenth and early twentieth centuries."^' This advantage is reflected by the fact that "the scholarly and popular literature regarding the 'mulatto,' from the end of the Reconstruction era to the first World War, reflected and fostered color bias . . . ."^° This light/dark distinction continues to influence not only the way that whites view Blacks, but also the way that Blacks have viewed each other:^' a study from the early sixties, for example, found social stratification among Blacks based on skin color. These studies revealed that upper-status members of Black communities tended to be lighter than lower-status members.^^ [B]lacks with darker skin have, historically, suffered rejection and discrimination from lighter or fairer blacks as well as from whites; darker skin blacks tend to be poorer less well educated and to occupy a lower social status in black communities than do their brothers and sisters of fairer skin. Indeed . . . 'the black life experience' is tempered with these sociopsychological realities.^'' But while colorism in the United States arose from a predominantly Black-White paradigm, the view of darker as negative is not limited to Blacks: In the United States, a color hierarchy exists between and among people of color, which spans different racial and ethnic groups. The premise is very simple and very clear: Lighter is better and darker is worse. Even if we all 28. Jones, supra note 7, at 1501-02; see also Baynes, supra note 9, at 142 ("'[H]istorical evidence indicates that (W)hites placed greater economic value on slaves of mixed parentage and used skin tone or degree of visible white ancestry' as a means to determine the kind of treatment the slave would receive.") (citation omitted); H.A. Tyroler & Sherman A. James, Blood Pressure and Skin Color, 68 AM. J. PUB. HEALTH 1170 (1978). "Perhaps as an inevitable product of socialization into a Western system of values, the enslaved descendants of n"" and 18"" century Africans also adopted skin color as an index of innate ability and social worth." Id. at 1170 29. Howard Bodenhom, The Mulatto Advantage: The Biological Consequences of Complexion in Rural Antebellum Virginia, 33 J. INTERDISCIPLINARY HIST. 21 (2002); as Professor Banks writes, "Colorphobia within the Black Community increased with the advent of Jim Crow laws near the end of the nineteenth century. The Black community internalized this colorophobia in ways that subordinated some group members to others." Banks, supra note 5, at 1715. 30. Banks, supra note 5, at 1714 (citation omitted). 31. See, e.g.. Tufts University Links Racial Bias, Prejudice to Skin Tone, BLACK ISSUES HIGHER ED., May 23, 2002, at 16 (quoting the Tufts researchers, "Our research shows that both Blacks and Whites associate intelligence, motivation and attraction to light-skinned Blacks, and being poor or unattractive to dark-skinned Blacks"). The researchers found that there are "cultural stereotypes based on the skin tone of Blacks. To put it simply, there are degrees of Blackness that have social meaning." Id. 32. Howard E. Freeman et al.. Color Gradation and Attitudes Among Middle-Income Negroes, 31 AM. SOC. REV. 365,366 (1966) (citing ST. CLAIR DRAKE & HORACE R. CLAYTON, BLACK METROPOLIS 495-506 (2d ed. 1962), GILBERT F . EDWARDS, THE NEGRO PROFESSIONAL CLASS 18, 104-108, 199 (1959), GuNNAR MYRDAL, AN AMERICAN DILEMMA: THE NEGRO PROBLEM AND MODERN DEMOCRACY 695-700 (1959), and W. WARNER, COLOR AND HUMAN NATURE: NEGRO PERSONALITY DEVELOPMENT IN A NORTHERN CITY (1940)). 33. Tyroler & James, supra note 28, at 1170. 442 BERKELEY JOURNAL OF EMPLOYMENT & LABOR LA W Vol. 26:2 agree that race itself no longer matters, color will still be a problem because darkness casts a longer discriminatory shadow than lightness.-'" Latinos^^ in the United States, whose physical appearance varies widely, from a more Anglo appearance to those with indigenous features and others who appear Black,^^ have also experienced the effects of both intra and interracial colorism." Colonization played a major role in the development of colorism in these cultures. The colonizers "established societies based on dominant-subordinate relationships, with skin color as the predominant marker of status. Because of the prestige and power of conquest, whiteness was given a higher status than nonwhiteness by both the colonizers and the colonized."^* In addition, unlike the Black experience, color "is also a cue in nativist rhetoric surrounding immigration."^' For example dark-complexioned Mexican Americans with more indigenous features "are more likely to be treated as minorities in everyday life than other Mexican Americans. They are more likely to be stopped, questioned, or worse by immigration authorities in border communities.""" III. RESEARCH ON THE IMPACT OF COLORISM ON RACIAL MINORITIES Social scientists have conducted numerous studies on the impact of skin color, both within and between races. The impact of colorism has been found to be significant:"' 34. Baynes, supra note 9, at 133. 35. I recognize that the term Latino can be misleading as a classification in that it applies to a heterogenous, not homogenous group composed of persons of Mexican, Cuban, Puerto Rican, CentralAmerican and other Latin-American ancestry. See Kevin R. Johnson, "Melting Pot" or Ring of Fire?: Assimilation and the Mexican American Experience, 10 LA RA2A L.J. 173, 204 (1998). However, each of these groups share the common history of colonialism and the intemalization of colorism. See, e.g., Edward Murguia & Edward E. Telles, Phenotype and Schooling Among Mexican Americans 69 Soc ED. 276, 277(1996). 36. Johnson, 5Mpra note 35, at 205. 37. See, e.g., id. at 206. Discrimination based on color varies widely within the Latino community however, beeause of the diversity of skin tones. Id. at 205. See also Marta Cruz-Janzen, Latinegras: Desired iVomen—Undesirable Mothers, Daughters, Sisters, and Wives, FRONTIERS, Sept. 2001, at 168, 171 ("The more Latinos become immersed in the racial ideology of the United States, the sharper and more unyielding the blaek/white dichotomy becomes and the more powerftil is their need and desire to free themselves of any and all vestiges of African ancestry."). 38. Murguia & Telles, supra note 35 at 277; Cruz-Janzen, supra note 37 at 174 ("I have eome to realize that Latino racism, throughout Latin America, Spain, and the United States, begins with the negation of the black presence in history. Whites in Latin America, reflected in census counts and historical accounts have systematically minimized or completely obliterated the presence and contribution of blacks. The darker the Latino, the greater the oppression of his or her existence and linkages to other Latinos."). 39. Ruiz, supra note 19, at 16. 40. Johnson, supra note 35, at 206. 41. See Maddox & Gray, supra note 8. The authors provide a summary of the social science research on colorism. Id. at 251-2. 5ee also Carlos H. Arce et al., Phenotype and Life Chances Among 2005 THE CONTINUING SIGNIFICANCE OF COLOR UNDER TITLE VII 443 [S]kin color has been used as a basis (however unreliable and irrational) for assigning racial group membership and with it ascriptions of "high" or "low" social status to individuals. Through such indirect processes, skin color becomes a primary determinant of whether an individual's chances for full human development are to be circumscribed or maximized.''^ Intraracial colorism is thought to derive from the internalization of the views of the dominant culture."*^ While much of this research has focused on the Black community, a significant body of work that demonstrates the "dark is bad concept" has been applied across different racial groups.'*" There have been a number of studies on the impacts of colorism, both intraracial and interracial, among various racial groups. The results of these studies are important in that they tend to support Title VII's prohibition against color discrimination. The research demonstrates not only a social effect of colorism, but an economic impact as well. Early studies demonstrated, for example, that Blacks with lighter skin obtained higher socioeconomic status, that more light-skinned than darkskinned black held high status managerial jobs,"' and that dark-skinned Blacks earned seventy cents for every dollar earned by a light-skinned Black."* Interestingly, these data have remained stable over time."^ The studies also provide evidence that darker skin color is linked to higher blood pressure in Blacks."* Chicanos, 9 HiSP. J. BEHAV. SCI. 19 (1987); ALLISON DAVIS ET AL., DEEP SOUTH (1941); Keith & Herring, supra note 27; Edward Murguia & Edward E. Telles, Phenotype Discrimination and Income Differences Among Mexican Americans, 71 Soc. SCI. Q. 682 (1990). 42. Tyroler & James, supra note 28, at 1170. 43. See Segura-Mora, supra note 17, at 7 ("White privilege is a value deeply ingrained in our social fabric. 'Oh look at him, how pretty and blond looking he is,' is a common expression if the baby has European features and coloring. And if the babies came out dark, like Ernesto? The comments are often, 'Hay, pobrecito, sali tan prietito'—which translated means, 'Poor baby, he came out so dark.'"). 44. Baynes, supra note 9, at 149 ("Belief in Black inferiority is ingrained in both the White and mulatto Latino society. And this belief in inferiority has contributed to Blacks and native peoples being at the lowest caste in many Latin American countries."); Wagatsuma & Kleinke, Ratings of Facial Beauty by Asian-American and Caucasian Females, 109 J. SOC. PSYCH. 299 (1979). 45. Itabari Njeri, Colorism in American Society, Are Light-Skinned Blacks Better Of/?, L.A. TIMES, Apr. 24, 1988, at 1. 46. Michael Hughes & Bradley Hertel, The Significance of Color Remains: A Study of Life Chances, Mate Selection, and Ethnic Consciousness Among Black Americans, 68 SOC. FORCES 1105 (1990). 47. M at 1113. The authors looked at 30 years from 1950 until 1980. See infra text accompanying notes 70-73. 48. See Ernest Harburg et al.. Skin Color, Ethnicity, and Blood Pressure I: Detroit Blacks, 68 AM. J. PUB. HEALTH 1177, 1179 (1978) ("A modest but positive correlation appears for all blood pressure readings, with darker skin correlating to higher blood pressure. For both sexes, high stress, or working class residents had significantly darker skin than their low stress, middle class counterparts."). Harburg also found that, "Darker skin color for blacks, and in this sample, especially for black males, was related to higher blood pressure in a linear manner. This direct relationship was shown to be independent of stressor areas, education, income, and other factors." Id. at 1181. Harburg speculates that lower socioeconomic status and residential segregation might be the cause of the higher blood pressure his study 444 BERKELEY JOURNAL OF EMPLOYMENT & LABOR LA W VoL 26:2 Data on Latinos, skin color and employment reveals a similar trend: "Mexican Americans with a more European... appearance have more enhanced life chances as measured by higher socioeconomic status than Mexican Americans with indigenous Native American features.'"" Although one might assume that on the fortieth anniversary of Title VII colorism is no longer an issue, the results of the studies presented below support the contention that even now, color influences the way in which individuals are perceived. The persistence of the "dark as less" view, along with evidence of lingering resentments against lighter skinned individuals,^" demonstrates the continued need for awareness of colorism and the ongoing importance of Title VII's prohibitions on color discrimination.^' detected. See also Edwin Boyle Jr., Biological Patterns in Hypertension By Race, Sex, Body Weight, and Skin Color,2\3 J. AM. MED. ASS'N 1177 (1978). 49. Baynes, supra note 9 (quoting Keith & Herring, supra note 27, at 760). 50. Though in the majority of instances, color discrimination operates against those who are darker skinned, this is not always the case. For example, light skinned Mexican Americans may be called gabacho, meaning "Anglo" and challenged by other Mexican Americans as being too white. Johnson, supra note 35, at 206. See also Aaron Celious & Daphna Oyserman, Race from the Inside: An Emerging Heterogeneous Race Model, 57 J. SOC. ISSUES 149 (2001), "In short, the skin tone bias among African Americans both exalts light skin tone and denigrates it. Light skin may act as a kind of currency in one situation, facilitating entry, and as a barrier and source of exclusion in another." Id at 160. In fact, within the black community children often receive mixed messages about skin tone. For instance, a Black child may hear statements like "You don't need anymore sun," suggesting that s/he is "too dark." Yet s/he may hear the same person say, "The darker the berry the sweeter the juice," suggesting the richness of dark skin. In / Know Why the Caged Bird Sings, Maya Angelou wrote "1 was described by playmates as being shit color, he was lauded for his velvet-black skin." The high value placed on dark skin in Angelou's text is contrasted with the attitude of April Sinclair's character Jean in Coffee Will Make You Black, who says, "My skin was the color of Cracker Jacks. But most Negroes didn't get excited over folks who were darker than a paper bag." These competing messages about beauty as it relates to skin tone are widely acknowledged among many African Americans. The result is a heightened level of consciousness about one's skin tone, the skin tone of others, and how it is valued differently dependent on the setting. Id. at 159-60 (internal citations omitted). 51. Colorism may be an issue for some whites. See, e.g., Celious & Oyserman, supra note 50, at 158 ("Skin-tone based advantage is often assumed to be a historic legacy. It is assumed that having lighter skin affords advantages in the workplace for all Americans, whether of African, European, or other background. . . ." (citing Daniel Bell, Ethnicity and Social Change, in ETHNICITY 138 (John Hutchinson & Anthony D. Smith eds., 1996))). For studies of colorism as it affects whites, see DAVID R. RoEDiGER, THE WAGES OF WHITENESS: RACE AND THE MAKING OF THE AMERICAN WORKING CLASS (1991) (describing how the white community defines itself and other groups); John Sanford, Scholar Offers Provocative Hypothesis About Skin Color, Identity, STANFORD REP., May 14, 2003 ("[E]ven European Americans are affected by color gradations—or were in earlier generations. 'Throughout the 20* century, members of the old immigrant groups—light-skinned northern Europeans, with the usual exception of the Irish—have had higher standing in the eyes of fellow white Americans than have members of the new immigrant groups—darker-skinned eastern and southern Europeans," quoting Jennifer Hochschild's speech on "The Politics and Morality of a Skin Tone Ordering," delivered at Stanford University on May 6, 2003), available at http://news-service.stanford.edu/news/2003/ mayI4/ordering-514.html; "Intricately linked to ideas about class, race and sex, acquired skin tones have always formed an integral component of the fashion system. Before the birth of the leisure class, sun darkened skin marked you as the sort of unfortunate soul who toiled in the fields. But by the mid-1920's all that started to change. With the sporting life and Jazz Age in flill bloom, tans became chic—a trend 2005 THE CONTINUING SIGNIFICANCE OF COLOR UNDER TITLE VII A. 445 African Americans and Colorism "When people see me, they invariably look past the person and see my color."52 To prevail in a Title VII disparate treatment claim, a plaintiff alleging color discrimination must show that she was subjected to an adverse employment action based on her color." As might be imagined, there will rarely be a "smoking gun" situation in color discrimination cases,^" making it difficult for a plaintiff to prove the employer's bias, or intent. Social science research might be used to substantiate the existence of color discrimination and to bolster the claim of the employee who is trying to raise an inference of discrimination as it could provide evidence of the continued prevalence of colorist attitudes. The studies presented immediately below provide data on blacks, skin color, stereotyping and the socioeconomic impact of colorism. The first study from Tufts University looks at the attitudes of both whites and black towards skin color variations among blacks by having the participants assign traits to blacks of varying skin tones. The second study examines the socioeconomic impact of skin color. Thefinalstudy presented below looks at how skin color impact voters' choices. In the Tufts University 2002 study of both intraracial and interracial colorism, researchers asked participants to watch a simulated interaction among six men discussing what activity they would perform on a particular day." Statements were randomly attributed to each of the six speakers.^* facilitated by the image of a cinnamon toned Coco Chanel cruising to Cannes on the Duke of Westminster's yacht." Ginia Bellafante, The Way We Live Now: 8-12-01; Tan is the New Black, N.Y. TIMES, Aug. 12, 2001, § 6 (Magazine), at 13. The ambiguity about the preference of light or dark skin is similar to that in the black community as discussed above. 52. Yolanda Adams, Don't Want to be Black Anymore (Dark-Skinned African American Feels More Comfortable with Caucasians), ESSENCE, Aug. 1999, at 54. 53. "[O]vert or animus-based discrimination, occurs when a 'harm is inflicted or a benefit withheld either because of the perpetrator's racial [color] bias against the victim or because of that perpetrator's obliging the race [color] prejudice of others." Tumer, supra note 2, at 413 n.l75 (quoting GERTRUDE EZORSKY, RACISM & JUSTICE: THE CASE FOR AFFIRMATIVE ACTION 9 (1991)). See Larry Alexander, What Makes Wrongful Discrimination Wrong? Biases, Preference, Stereotypes, and Proxies, 141 U . P A . L.REV. 149(1992). 54. For a criticism of this approach to proof of discrimination (which is apropos in light of the study described below), see Tumer, supra note 2, at 384. [To] the extent that the courts construct a discrimination paradigm based solely or primarily on discriminatory intent or motive, the reach of Title VII will be limited to the rare number of obvious "smoking gun" cases involving unsophisticated employers. Such a paradigm of discrimination takes what can be a very complex matter and whittles it down to a claim requiring proof that the employer's conduct was of the "I did not hire you because you are black (or a woman or Latino or Asian)," which fails to address and provide a remedy for other more subtle fomis of discrimination and the associated biases, stereotypes, and proxies which exist in the "real world." Id. 55. Maddox & Gray, supra note 8, at 253. 446 BERKELEY JOURNAL OF EMPLOYMENT cfe LABOR LA W Vol. 26:2 One group of participants watched a discussion among six Black men and the other group observed a discussion among three white and three Black men." The skin color of the men in the Black group was digitally manipulated. Later, the participants were asked to match the speaker to the statement. The results of the study showed that all participants in the study used race and skin color to organize the discussion. The results supported the hypothesis that "perceivers do notice skin tone and can use it as an organizing cue, suggesting that skin tone is a basis of categorization among both Black and White perceivers."^^ Noting that skin tone perception is a precursor to skin tone-based stereotypes, the researchers then tested previous findings that dark-skinned Blacks were more closely aligned with negative cultural stereotypes.^' The researchers had participants complete questionnaires that purported to "examine both their knowledge and cultural beliefs about various racial and ethnic groups."^" Each page of the questionnaire listed a specific social group, followed by directions to list positive, negative, and neutral traits associated with each group.*' What the researchers found confirmed earlier studies. Although the finding that "White participants associated a greater number of positive compared to negative traits to light-skinned male targets" was not statistically significant,*^ the finding that these same individuals assigned more negative attributes to dark-skinned men was statistically significant." The data also showed that both racial groups were aware of cultural distinctions between light and dark-skinned Blacks.*^ According to the researchers. 56. W. at 253. 57. Id 58. Id at 254. 59. Previous studies had found tliat "compared to those with darker skin tone, lighter-skinned btacks have been more elosely associated with attractiveness, personal charm, intelligence, social mobility, and emotional stability." Id. at 255 (citing Claud Anderson & Rue Cromwell, "Black is Beautiful" and the Color Preferences of Afro-American Youth, 46 J. NEGRO EDUC. 76 (1977), J. Bayton & T. Muldrow. Interacting Variables in the Perception of Racial Personality Traits, 3 J. EXPERIMENTAL RES. PERSONALITY 39 (1968), and E. Marks, Skin Cotor Judgments of Negro College Students, 38 J. ABNORMAL & Soc. PSYCH. 370 (1943)). 60. W. at 255. 61. Id. 62. Id. at 256. 63. Id. 64. Id. at 257. More specifically the researchers found that: Both Black and White participants were significantly more likely to use the traits criminal and tough/aggressive and less likely to use the trait wealthy to describe dark-skinned men as compared to light-skinned men. Although only statistically reliable for one group of participants, the traits poor, ostentatious, unattractive, and uneducated tended to be more closely associated with dark men, whereas the traits educated and intelligent tended to be more closely associated with light men. There was even more agreement in participants' discussion of women. Both Black and White participants were more likely to use the traits attractive and intelligent, and 2005 THE CONTINUING SIGNIFICANCE OF COLOR UNDER TITLE VII 447 "this procedure tapped into common aspects of a predominantly negative cultural stereotype of Blacks that appears to be closely associated to Blacks with dark skin. Participants described dark skinned Blacks using more negative and stereotypic traits, whereas light-skinned Blacks were described with more positive and counterstereotypic traits."^^ The study also found that in looking at individual trait assignments, "in each case where a reliable difference was found, it was always in the direction describing dark-skinned Blacks as more closely aligned with the traditionally negative stereotype of Blacks."^* While the Tufts University study reveals underlying attitudes towards skin color, another examines the socioeconomic impact of colorism.*^ The results of this second study support the idea that not only does American society hold negative perceptions based on skin color, but these stereotypes lead to reduced opportunities for those perceived as dark. Hill tested two competing theories used to explain socioeconomic differences between dark and light-skinned Blacks. The first theory, social origin, posits that "color stratification stems from historical advantages passed down from privileged white and mixed-race ancestors to their descendants."^* The second theory, colorism, is based on "social stigmatization of dark skin and physical traits associated with African Ancestry."*' To test the two theories, the researcher used longitudinal data from the census to examine the socioeconomic attainment of Black men classified as Black or mulatto.™ The results of the study confirmed previous findings that document the skin color advantage for light-skinned Blacks. "[M]en identified as mulatto enjoyed a modestly higher socioeconomic attainment compared with men identified as Black,"" which lent support to the colorism theory. The data, however, did not strongly support the social origin less likely to use the traits lazy, poor and unattraetive in their descriptions of light-versus darkskinned women. Although only statistically reliable for one group of participants, participants also tended to be more likely to use the traits tough/aggressive, uneducated, and unintelligent and tended to be less likely to use the traits motivated and self-assured in their ascriptions to dark-skinned women as compared to light-skinned women. Id 65. Id. at 257-58. 66. W. at 258. 67. Mark E. Hill, Color Differences in the Socioeconomic Status of African American Men: Results ofa Longitudinal Study, 78 SOC. FORCES 1437 (2000). 68. Id. at 1444. 69. Id. at 1443-44. Colorism as used in legal literature generally encompasses both the current negative perceptions of observers as well as the historical advantage gained based on such perceptions as applied to one's ancestors. See Baynes, supra note 9, at 141-43; Jones supra note 7; Banks supra note 5, at 1713. 70. Hill, supra note 67, at 1437. 71. Id at 1454. 448 BERKELEY JOURNAL OF EMPLOYMENT & LABOR LA W Vol. 26:2 theory.''^ According to Hill, "These results give prima facie support to the importance of color bias as an explanation of color-based stratification among African-Americans and are consistent with the assertion that African Americans who approximate European standards of physical attractiveness are viewed as more competent than their darker peers."" This finding provides support for the idea that perceptions of competency play a direct role in determining which of two candidates most deserves a promotion or raise. In a third study, Terkildsen examined colorism in the political process by determining the effect of Black skin color on voters.'''' The study found that the "darker-skinned Black candidate was evaluated much more harshly than his lighter-skinned peer. Racially intolerant whites were particularly brutal in their evaluations of the darker-skinned candidate."" The author concludes, regrettably, if voters continue to base their evaluations on candidate race and subtle skin color differences, two infamously unreliable criteria for determining individual qualities and job suitability, the elective fiiture of African Americans is pessimistic. Such fmdings seem to indicate that no amount of structural reforms can compensate for the deeply held racial beliefs and physically supported misconceptions white voters hold about black politicians.^^ Though Terkildsen's study looks the effects of color on political attitudes, the results of this study are relevant to the employment setting where individuals are also judged based on appearances." Additionally there is a great deal of social distance between a potential candidate and a voter, yet the effects of colorism were significant. Given that, it is reasonable to as- 72. "[M]ulatto subjects enjoyed modestly advantageous backgrounds compared with their black counterparts. . . . [T]hese advantages apparently translated into a small color gap in school attendance favoring mulattos. Nevertheless the lack of exceptional origin differences between these black and mulatto men casts some doubt on the common assumption that lighter African Americans have greatly benefited from substantial social and material privileges that can be traced to the antebellum period " Id. at 1452. 73. Id. at 1454. See also Hughes & Hertel, supra note 46. "Skin color of [Black Americans] is related to their own socioeconomic status and that of their spouses, such that light skin is associated with higher socioeconomic status; these effects of skin color are not due to the fact that persons with light skin color come from higher socioeconomic backgrounds. . . . The effects of skin color on socioeconomic achievement variables (comparing those with light skin to those with dark skin) are nearly as strong as the effects of race (comparing whites to blacks) on those same variables. Id. at 1114. 74. Nayda Terkildsen, When White Voters Evaluate Black Candidates: The Processing Implications of Candidate Skin Color, Prejudice and Self-Monitoring, 37 AM. J. POL. SCI. 1032 (1993). 75. Id at 1048. 76. W. at 1050-51. 77. See. e.g., Eng Seng Loh, The Economic Effects of Physical Appearance, 74 SOC. SCI. Q. 420 (1993); Robert Barro, So You Want to Hire the Beautiful. Well, Why Not?, Bus. WEEK, March 16,1998, at 18 ; Micheal L. Shannon & Patrick C. Stark, The Influence of Physical Appearance on Personnel Selection, Z\ Soc. BEHAV. & PERSONALITY 613 (2003). 2005 THE CONTINUING SIGNIFICANCE OF COLOR UNDER TITLE VII 449 sume that any color biases of an interviewer would be magnified in a workplace setting, when choosing a potential coworker. Finally it is not likely that the attitudes exhibited by the respondents in the study are compartmentalized and unlikely to be replicated in a workplace setting. B. Latinos and Colorism Colonialism led to stratified race relations in Mexico and other former Spanish territories. In the case of Mexico, the militarily superior Spanish conquered numerous Indian nations and constructed a society of Spanish elite and Indian slaves. With the miscegenation of these two groups and the creation of a large population of mestizos (persons of mixed race) a racial hierarchy, based largely on skin color, evolved. Light skinned and European persons tended to be at the top of the social hierarchy, and the darkest most Indian-looking persons tended to be at the bottom.'* Altbougb colorism in the Latino community does not receive as much attention and study as the issues of colorism faced by the Black community,''^ its effects are nonetheless present:^" "[p]henotype differences have influenced life chances for Chicanos in past generations, as demonstrated by fathers' and mothers' schooling and occupational prestige."*' Previous studies have also found that regardless of education, income, and language 78. Murguia & Telles, supra note 35, at 278. But see KATHY RUSSELL ET AL.. THE COLOR COMPLEX: THE POLITICS OF SKIN COLOR AMONG AFRICAN AMERICANS 66-68, 107-09 (1992) (noting that before white contact Central American Aztec women would use an ointment of yellow earth on their faces during courtship because being golden was more attractive than being brown). 79. See Rachel Moran, What if Latinos Realty Mattered in the Public Policy Debate, 85 CAL. L. REV. 1315 (1997); Juan F. Perea, The Black/White Paradigm of Race: The "Normal Science" ofAmercan Racial Thought, 85 CAL. L. REV. 1213 (1997). 80. One writer describes the experience of his wife, a fair-skinned Mexican whose college acquaintance told her that she did not "look" Mexican, a seemingly innocuous comment likely meant as a compliment that has stayed with her over the years. Now, what did this person mean, that Virginia was lightskinned and that Mexicans were supposed to be dark? That she was attractive and that Mexicans were not? Or, maybe that Mexicans looked different from the norm and she looked "normal"? None of the possible interpretations rescue the comment from being offensive. Johnson, supra note 35, at 197; see also Telles & Murguia, supra note 35; Edward E. Telles, The Continuing Significance of Phenotype Among Mexican Americans, 73 Soc. SCI. Q. 120 (1992); Hunter etal.. The Significance of Skin Color Among African Americans and Mexican Americans, PERSPECTIVES, Winter 2001, at 173; Larry Rohter, Multiraciat Brazit Ptanning Quotas for Btacks, N.Y. TIMES, Oct. 2, 2001, at A3. Brazilian society, with the largest black population outside of Africa, has over 300 terms to designate skin color. Black Brazilians have long complained about being kept at the bottom of the ladder and the govemment has adopted a quota system in order to remedy the problem. Id. But see Alok K. Bohara & Alberto Davila, A Reassessment of the Phenotype Discrimination and Income Differences Among Mexican Americans, 73 Soc. Sci Q. 114 (1992) (fmding no color impact on the economic status of darker-skinned Mexicans). 81. Christina Gomez, The Continuat Significance of Cotor: An Exptoratory Study of Latinos in the Northeast, 22 HiSP. J. BEHAV. Sci. 94 (2000). 450 BERKELEY JOURNAL OF EMPLOYMENT & LABOR LA W Vol, 26:2 proficiency, U.S. bom and raised Chicano men with darker and more Indian phenotypes suffered more depression.*^ The Latino population in the United States is diverse, composed of people of varying national origins,*^ and the research reflects this fact. In the first study described below, the author set out to examine the effects of skin color on subgroups such as Dominicans and Puerto Ricans.*'' The authors of the second study set out below describe their findings on the labor market impact of skin color on Mexican, Puerto Rican and Cuban workers. In the third study, the authors attempt to measure the existence of both intra and interracial colorism among Hispanics and Chileans. Because the three studies focus on the colorism as experienced by different subgroups within the Latino community, they provide some notion of the prevalence of skin color bias. To date, most ofthe research on colorism in the Latino community has focused on Mexican and Chicano men in the Southwest.*^ However, one recent study focused on a less-studied group, Caribbean Latinos.*^ This multiracial group of Spanish, Indian, and African origin displays a "complex array of phenotypes." More specifically, the study considered such questions as whether lighter-skinned Latinos benefited from their appearance and whether a dark-skinned Latino with African features is disadvantaged relative to a dark person of Mexican heritage with indigenous Indian features. The study also examined the impact of skin color on Latinas.*^ The data tended to show that "dark skin continues to have a negative impact on earnings controlling for other human capital variables,"** Gomez found that lighter skinned Latinos had more education, had a greater level of home ownership and were more likely to be married.*' One interesting finding of this study is that there was no skin color effect on economic factors for the Latinas in the study.'" While this may seem like good news, the bad news is that the Latina workforce in this study was concentrated in lowpaying, low-skill jobs, so that the lack of a skin color effect was most likely attributable to the fact that they were concentrated in second-tier jobs." 82, Id. (citing Edward Codina & Frank F, Montalvo, Chicano Phenotype and Depression, 16 Hisp. J. BEHAV, SCI, 296 (1994)), See also RON HALL, THE PSYCHOGENESIS OF COLOR BASED RACISM: IMPLICATIONS OF PROJECTION FOR DARK-SKINNED PUERTORRIQUENOS (1997), available at http://www,jsri,msu,edu/RandS/research/irr/n-21 ,pdf, 83, Gomez, supra note 81, at 94, 84, Id. at 95, 85, Id. ("The darker- skinned Latinos had lower socioeconomic status, received lower earnings and had less schooling than their lighter-skinned, European-looking counterparts."). 86, Gomez, supra note 81, at 95, 87, Id. at 96, 88, Id. at 99. 89, Id. at 98, 90, Id 91, W a t 99, 2005 THE CONTINUING SIGNIFICANCE OF COLOR UNDER TITLE VII 451 They tended to be employed as factory workers, office cleaners and other low skilled jobs. Therefore, Gomez suggest that "the effect of skin color might be muted due indirectly to the narrower variability in their salaries as a direct result of their concentrations in secondary tier, low wage jobs.'"^ The impact of skin color on the occupational status of Puerto Rican, Mexican, and Cuban Americans workers within the Latino community was the focus of a second study.'^ The authors hypothesized that darker-skinned Puerto Ricans, Cuban Americans, and Mexican Americans would face greater labor market discrimination and thus have lower occupational prestige scores than their lighter-skinned cohorts.'" What the authors found was that "in all cases, very light Latinos have a higher occupational prestige than very dark Latinos."'' The research confirmed earlier studies finding that for light-skinned Mexicans and Cubans skin color produced a statistically significant result in terms of occupational prestige scores.'* The darker Latinas in these groups fared even more poorly than the men." Mexican women had occupational rankings nearly one and a half units below that of Mexican males, and Cuban women had a ranking two and a half units less than Cuban men.'* The authors conclude that despite efforts to rid the workplace of discrimination, many darker-skinned Latinos continue to experience more discrimination in the labor market than their lighter-skinned counterparts. More specifically, the data showed that Mexican and Cuban individuals who look more European have higher occupational prestige scores than Mexican and Cuban individuals who have less indigenous or African appearances." A third study, released in 2002, focused on intraracial colorism among American Hispanics and Chileans.'"" The researchers in this study examined both implicit and explicit attitudes of American Hispanics and Chileans towards darker skin color."" They also examined both groups' attitudes 92. Id 93. Rodolfo Espino & Michael M. Franz, Latino Phenotypic Discrimination Revisited: The Impact of Skin Color on Occupational Status, 83 SoC. SCIQ. 612 (2002). 94. Id. at 614. The authors used the Huaser & Warren composite Occupational Prestige Ratings, an index which tends to rely less on earnings to measure occupational prestige. The index ranks all occupations on a scale of 1 to 100. Id. at 615. 95. Wat 617. 96. Id. However the same did not hold true for Puerto Ricans, a result the authors could not explain. 97. W. at 618. 98. Id. The authors offered no explanation for this fmding, but it may reflect Gomez's fmdings above that these women were lower skilled and tended occupy low age service sector jobs. 99. W. at 621. 100. Eric Uhlmann et al.. Subgroup Prejudice Based on Skin Color Among Hispanics in the United States and Latin America, 20 SOC. COGNITION 198 (2002). 101. Id. The authors do not define who is encompassed by the term Hispanic as used in their study except for the skin color distinctions they test. 452 BERKELEY JOURNAL OF EMPLOYMENT & LABOR LAW Vol. 26:2 towards whites. What they found was that both the Hispanic Americans and the Chileans had an implicit preference for lighter-complexioned individuals.'"^ As they expected, however, this attitude was substantially larger in magnitude among the Chileans.'"^ On the measures of explicit attitude, only the Chileans expressed a preference for lighter-skinned individuals. As far as the groups' attitudes towards whites, Chileans tended to favor whites over Hispanics, but American Hispanics did not favor either group.'"^ While it is not possible to draw a definite conclusion on the basis of this study, what it suggests for employment discrimination purposes is that recent immigrants of some cultures may be more likely to harbor negative intraracial stereotypes than people of color currently living in the United States. The study's authors suggest that this difference may be due to the fact that in the United States, "'race is seen as an important issue: antiracist social movements publicly challenge the legitimacy of racially biased laws, policies and ideology, and groups encourage their members to celebrate their ingroup identity. In Latin America despite the prevalence of a skin color based hierarchy, there are fewer antiracism movements.'""' Issues of discrimination are often viewed through the lens of this country's history. This research suggests in the context of employment decisions, issues of color are not be confined solely to non-immigrant decision makers in the workplace. These studies described above provide evidence of the current effects of past discrimination as demonstrated by the economic impact of colorism on Latinos as well as Blacks. Both groups confi-ont the reality of interracial colorism through its impact on earnings, occupational status, and income, yet both also continue to battle the demon within, which is increasingly important in the workplace as America "browns."'"* While race discrimination has been an influential factor in the earnings and occupational gap, the 102. W. at 218. 103. Id. The authors expected this distinction because previous studies have shown that greater value is placed on light skin color in Latin America than among Hispanic Americans. Id. at 200 (citing SUZANNE OBOLER, ETHNIC LABELS, LATINO LIVES: IDENTITY AND THE POLITICS OF REPRESENTATION IN THE UNITED STATES (1998); PETER WADE, RACE AND ETHNICITY IN LATIN AMERICA (1997)). 104. Uhlmann, supra note 100, at 219. 105. Id at 220; See also Tanya K. Hernandez, An Exploration of the Efficacy of Class-Based Approaches to RacialJustice: The Cuban Context, 33 U.C. DAVIS L. REV. 1135 (2000). Cuba, with a long history of racial subordination that continues to exercise its influence today, disdains race-conscious measures because they are viewed as promoting racial divisions. Id. at 1136. 106. Benjamin E. Griffith, Multi-Racial Self-Classification and Census 2000: Effect on Voting Rights Litigation and Allocation of Federal Funds (Nov. 10, 1998) (paper presented at IMLA 63"" Annual Conference) ("In 2050 the population in the United States is projected to be approximately 53% white, 25% Hispanic, 14% Black, 8% Asian Pacific American, and 1% American Indian and Alaska Native."), available at http://www.vralitigator.com/public-files/files/Multiracial%20SelfClassification.html; see Banks supra note 5, at 1734 ("I expect fiiture colorism cases claims that challenge employment practices favoring light-over dark-skinned members of the same race."). 2005 THE CONTINUING SIGNIFICANCE OF COLOR UNDER TITLE VII 453 effects of color, which are measurable, have typically been overlooked. In light of the evolving demographics of the workplace, it is important to acknowledge the persistence of both interracial and intraracial colorism. C. Asians and Colorism In contrast to media perceptions that Asian and Pacific Islanders have integrated successfully into American society, studies portraying the current social reality experienced by various Asian and Pacific Islander groups portray a different story.'"' One of the problems with current writing is that it tends to ignore the diversity of ethnicities and experiences among Asian people. While some groups may obtain an advantage based on skin color, other groups with darker skin do not.'"* For example, only 12.4 percent of Samoans, 13.3 percent of Vietnamese, 13.5 percent of Guamanians, and 16.6 percent of Hawaiians held managerial and specialty occupations, compared with 28.5 percent Japanese and 32.5 percent of Chinese."" Whether this disparity is attributable to colorism is a topic in need of research, but it highlights the socioeconomic differences within the Asian community and at least suggests that perhaps color has an impact on economic opportunity within this community as well. The lack of research on the topic of Asian Americans and colorism initially suggested that perhaps it was not an issue in Asian communities."" However, the few existing studies suggest that skin color affects this community's perceptions as well and that its effect cannot be overlooked.'" 107. Ketayun H. Gould, Asian and Pacific Islanders: Myth and Reality, 33 SOC. WORK, 142 (1988). 108. See Baynes, supra note 9, at 134. Asian-Americans are viewed as model minority because those from Northeast Asia are lighter in complexion than African Americans. Id. at 133. However, the advantage would not necessarily be conferred upon Cambodian, Laotian, or Malaysians, who tend to be darker-skinned. Just as is tme with blacks and Latinos, Asian skin tones range from very fair to dark. 109. Gould, supra note 107, at 143. One study of poverty rates among Asian head of household revealed that Southeast Asians, Hawaiians, and other Asians had the highest poverty rates. See Kathleen M. Mclnnis, The Economic Well Being of Asian/Pacific Islander Female-Headed Households, in SOCIAL WORK PRACTICE WITH ASIAN AMERICANS (Sharlene Furoto et al. eds., 1992). 110. Roksana B. Rahman, Color As Status: The Role of Skin Color Among Hindu Indian Women 23 (May 1, 2002) (unpublished qualifying paper for Rutgers University, Sociology Department), available at http://sociology.rutgers.edu/colloquium/PDF/rahman.pdf ("Literature on skin color and Indian (and other South Asian) women living in the U.S. is virtually non-existent . . ."); see also Vanessa E. Jones, The Color Complex: A Formerly Taboo Topic Among Asian-Americans and Latinos Comes Out Into the Open as Skin Tone Consciousness Sparks a Backlash, THE BOSTON GLOBE, Aug. 19, 2004, at D-4. The reason for the lack of research on this topic is unclear. Perhaps it is because such topics have been traditionally taboo: "This is dirty-laundry territory. Ethnic groups don't want this aspect of their culture publicized." Id. 111. Jones, supra note 110, at D-4. "The fair-is-best mentality prevails, however. Skin-whitening creams do big business in Hong Kong, the Philippines, Japan, and Malaysia. The stars of telenovelas, the Spanish-language soaps that air on Telemundo and Univision, are generally blond and pale. Flick on the TV and you may catch L'Oreal's ad for its True Brown hair color featuring Aishwarya Rai. With 454 BERKELEY JOURNAL OF EMPLOYMENT & LABOR LA W Vol. 26:2 The diversity that the term Asian American encompasses"^ makes it important to acknowledge that different ethnicities within the classification may have very different experiences with skin color discrimination."^ However, the few existing studies do shed light on the phenomenon of colorism as experienced by Asians and can to some degree inform this discussion. Whether colorism is the result of colonization of Asian countries, or whether it existed before contact with whites is a subject of discussion. "*• Regardless of its origin, the sting of colorism is felt in the Asian community."^ Professor Raj, who addresses this issue in her classes, attributes colorism to internal racism. She described her experiences growing up "in the South Asian community of Jackson, Miss., [where] beauty also equaled pale.""** According to Raj, "You hear this a lot. 'She's so beautiful, she's so fair.'""' Raj's sister conveys the same values to her children by cautioning them to stay out ofthe sun.'118" her striking blue-gray eyes and milky skin, the Bollywood actress could easily pass for white. Despite the pervasiveness ofthe message, the preference for light complexions among Asian-American and Latino communities is so minimally explored you most often read about it in scholarly articles or books " W. atD-1. 112. The federal census, for example lists "Asian Indian, Chinese, Filipino, Japanese, Korean, Vietnamese, and other" under the designation "Asian". The category Pacific Islander is similarly broad and includes Native Hawaiian, Guamanian, Chamorro, Samoan and other. See TERRANCE REEVES & CLAUDETTE BENNET, U.S. CENSUS BUREAU, THE ASIAN AND PACIFIC ISLANDER POPULATION IN THE UNITED STATES: MARCH 2002 (2003), http://www.census.gov/prod/2003pubs/p20-540.pdf 113. See Gould, supra note 107, at 143 (describing the socioeconomic differences among Asian Americans: "[M]ajor differences exist among Asian and Pacific Islanders on socioeconomic indicators. For example, the groups with the highest percentage of families living below the poverty level were the Vietnamese (35.1 percent) followed by the All Other Asian and Pacific Islander group (32.2 percent) and by Samoans (27.5 percent)."). Ronald E. Hall, SKJN COLOR AS A POST-COLONIAL ISSUE AMONG ASIAN-AMERICANS 1 (2003) ("Local schools of thought dominated by the Black/White dichotomy have failed to take notice ofthe growing Asian presence in American life. The study of Asian-Americans in the post-colonial era can be neither understood nor assessed without a universal frame of reference. This study gives insight into the implications of skin color for Asian-Americans, characterizing the taboo concept of hierarchy as manifested on the basis of skin color."). 114. See, e.g., JOHN HOPE FRANKLIN & ALFRED A. MOSS JR., FROM SLAVERY TO FREEDOM 27-56 (1994); "Indian folk songs praised the beautiful woman who has 'the color of butter' (Indian butter is white, not yellow). Pre-colonial Indonesian women used plant-based skin treatments to make their complexion pale." Color Q World, Pre-European-Contact Colorism and Post-colonial Racism in Asia and North Africa, http://www.colorq.org/Articles/2002/colorism.htm (last visited Dec. 29, 2004) ("Ihara Saikaku, a 17th century Japanese writer, contrasted the beauty ofthe black-haired, pale-skinned urban youth to the unattractiveness of orange-haired, sun-tanned rural boys. Peasant boys who worked outdoors had their black hair bleached orange by sun and sweat. Thus, for the pre-modem Japanese, pale hair and dark skin came to be signifiers of an under-privileged lifestyle, just as black hair and pale skin symbolized urban sophistication and privilege."). 115. See, e.g., Adam Easton, Women Have Deadly Desire for Paler Skin in the Philippines, 352 LANCET 555, 555 (1998) ("Thousands of Filipino women are exposing themselves to the dangers of severe skin disorders and possibly even cancer through their desire to have paler skin."). 116. Jones, supra note 110, at D-1. 117. W. atD-2. 118. Id. 2005 THE CONTINUING SIGNIFICANCE OF COLOR UNDER TITLE VII 455 Three recent studies shed light on the nature of colorism as it currently exists in the Asian community. One study examined the role skin color plays in marriage choice among Hindu Indian women living in New Jersey.'" The second, of a similar nature, considered the impact of color on spouse selection in the South Asian Muslim community.'^" The third study compared two groups of students, Asian-Canadian and EuropeanCanadian,'^' to determine the skin color preferences of both groups.'^^ As a preface to her study focusing on Hindu women, Rahman explains that "the existence of hierarchical skin tone beliefs" is documented among South Asians: '"Indian folk literature, folk songs, and traditional wedding songs place a high value on fair skin color. The ideal bride almost always has a light complexion. ""^^ "The wide popularity of hair and complexion lighteners among South Asians (living in and outside of Asia) predominantly women, attests to the high value placed on skin tone.'"^" Rahman's study describes the status of skin color for women in the marriage market'^' and strives to explain the role that caste,'^* color, and socioeconomic status play in marriage.'^^ 119. Rahman, supra note 110, at 2. 120. See Assisi, supra note 17 (describing Zareena Grewal's study). 121. One writer suggests, however, that the experiences of minority groups in Canada may be different from those living in the United States: "In contrast to the American experience in which minority groups are expected to assimilate into majority society, Canadian society has adopted a model of multiculturalism and greater integration of diverse ethnic groups. In American society, where majorityminority distinction is made clear, the promotion of ethnic identity through various civil rights movements helped to bolster the self esteem of visible minorities . . ." See Sarita Sahay, Self-Esteem and Ethnic Identity Among South Asian-Canadian and European-Canadian Female University Students: Implications for Education, in MULTICULTURAL EDUCATION: THE STATE OF THE ART, STUDIES OF CANADIAN HERITAGE 66 (Keith McLeod ed., 1995), available at http://www.caslt.org/pdf/ self_esteem2.pdf 122. Sarita Sahay & Niva Pirhan, Skin-Color Preferences and Body Satisfaction Among South Asian-Canadian and European-Canadian Female University Students, 137 J. SOC. PSYCH. 161 (1997). 123. Rahman, supra note 110, at 23 (quoting "Radha," a participant in the study). Names of the respondents are in quotes because the women are referred to by aliases. 124. M a t l . 125. The author looked at fifteen newspaper matrimonial advertisements and found that for Indians, family background, region or origin, and skin color were the most important features in selecting a bride. A sample ad she included in her paper seeks a "fair to wheatish" complexioned woman. Id. at 17. She describes the origins of colorism and the impact of the caste system on perceptions of skin color. Under the caste system, white is associated with the Brahmins and black with the Shudras. She suggests that "the hierarchy of skin color is thought to be a result of caste division. Id. at 7. Beside conveying status, attractiveness and marriageability, the caste system tends to sexualize the women in the Shudra caste. "[L]ower caste darker-skinned female bodies are more sexualized than upper caste fairer skinned bodies. For example, there is a wide measure of tolerance of extra-marital relations between men of superior and women of inferior vama or color..." Id. at 12. 126. One problem with her study in its examination of castes was that none of the respondents identified themselves as Shudras, most likely due to the Shudras' lack of resources and capacity to be able to migrate to the United States. Id. at 20. 127. W. a t l 8 . 456 BERKELEY JOURNAL OF EMPLOYMENT & LABOR LA W Vol. 26:2 Rahman found that for Hindu women, skin color is an important consideration in marriage and that light skin is equated with beauty:'^^ "[a] darker girl is often a liability to her family. It is difficult to arrange a marriage for her. Even a dark Brahmin girl has a low value on the marriage market. Many brides' families are forced to provide a dowry for features that do not match the ideal bride.'"^' This issue of skin color is much more significant for the bride than the groom.'^^ As one participant in the study explained, "The groom should be able to support the daughter financially. In our system nobody really cares about how dark the male is as long as the bride is light skinned.'"^' Most of the women in the study who identified themselves as light-skinned were married to upwardly mobile men. The second study examines many of the same issues in the South Asian Muslim immigrant community in Michigan.'^^ Similar to the respondents in the New Jersey study, the immigrants in the Michigan study also greatly valued white skin.'" The author comments in her study that "particular physical qualities are always fetishized in constructions of beauty. However, in these communities, the stigma attached to dark color intersects with broader racial discourse in the United States. That's why a lightskinned a mother of three sons in their twenties, explicitly refers to dark coloring as a physical abnormality and deficiency."'-'" Such attitudes refiect both intra and interracial colorism. One participant in this study thought that things were "much worse here than in India and Pakistan because over there if you are ugly... if you have any kind of deficiency then at least you can make it up with money. 'Ok, my daughter's not beautiful, but I can give you a house.' But here no one needs money."'^^ The third study, which focused on both inter and intraracial colorism. Sahay interviewed South Asian-Canadian and European-Canadian female college students.'-'^ Sahay hypothesized that South Asian female students 128. Id at 23-24. The author notes that "in addition to whiteness or lightness being equated with beauty . . . a woman's self coneept develops in part from observing and internalizing what others think ofher." Id. at 24. As a result of this colorism, "a dark-skinned woman is constantly reminded that she is ugly and that she must be well versed in domestic activities in order to attract a decent suitor. . ." This influence may cause her to internalize her "ugliness" as a "moral or psychological attitude." Id. at 25. 129. Id. at 23 (quoting "Kiran"). One participant in the study, described as being dark as bittersweet chocolate, expressed her resentment of being stereotyped on the basis of her skin color. As a child, she was constantly reminded ofher skin color and its implications for her marriage potential. She "did not understand why her skin color should indicate her ability or lack of ability to be a good wife or dictate whom she could or could not marry." Id. at 24. 130. W. at23. 131. Id. The study also found that while caste was important, skin color within caste was just as critical. Id. at 25. 132. See Assisi, supra note 17 (describing Zareena Grewal's study). 133. Id 134. Id. 135. Id 136. Sahay & Pirhan, supra note 122, at 162. 2005 THE CONTINUING SIGNIFICANCE OF COLOR UNDER TITLE VII 457 would have a greater desire to be light than would the European students, and that the darker their skin tone, the less body satisfaction the participants would have.'" What Sahay found was that while the South Asian women wished themselves to be significantly lighter than they perceived themselves to be, it was the medium-dark women for whom this desire was the strongest."* However, they did not desire to be so light as to be white.'^' Interestingly, the European-Canadian wished to be darker, but not so dark as to lose their whiteness.'"" In fact, the European-Canadians desire to be dark was statistically as strong as the Asian-Canadian desire to be light."" The findings as to the European-Canadian women are consistent with the following observation concerning American women: "White women... could confidently declare that lily white complexion was 'passe'—that skin tone was a matter of fashion, that a dark complexion was one choice among many—as long as the boundary between black and white was secure.'"''^ In terms of body image, it was the medium-skinned women who had the lowest body image.'"^ Sahay speculated that their desire for lightness and lower body image derived from the fact that they were close to the ideal, yet unable to attain it, and that unlike the darkest South Asian women, they were "not dark enough to retreat from White standards of beauty and thus [were] unable to appreciate their own beauty.'""'' Although there is very little data directly showing the socioeconomic impact of colorism on members of the Asian community,'"' it is clear that there are cultural biases that perpetuate the "light is right" mindset. Such attitudes clearly can give rise to both intra and interracial colorism. These studies do not prove a direct connection between colorism and socioeconomic status (except for darker women in the marriage arena), however they reveal the persistent nature of colorism and given its impact on other communities of color, suggest the need for further research focused upon its labor market impact. I do not argue that these studies presented in this section of the paper are definitive or sufficiently broad enough to be conclusive. I offer them as confirmation of the continued existence of colorism and the barriers it poses especially for the darkest members of the Asian, Latino, and Black communities. Furthermore, I do not mean to imply that every member of each 137. 138. 139. 140. 141. 142. 143. 144. 145. Id at 163. Id at 164. Id. Id. Id at 166. Bellafante, supra note 51. Sahay & Pirhan, supra note 122, at 167. Id at 168. Unfortunately, the census data is not broken into subgroups of the Asian population. See, e.g., REEVES & BENNETT, supra note 112. 458 BERKELEY JOURNAL OF EMPLOYMENT & LABOR LA W Vol. 26:2 group discussed is a victim of colorism; I merely aim to point out that colorism is a reality in all of our communities. As one writer notes, "It is important not to overlook the role played by color in current power relationships. That's one way to combat racism from without, and within.'"''* What if the color bias is based not on the history of the United States, but has its origins in the cultural assumptions and biases of other countries and brought to this country by immigrants as described in some of the studies in this Part? Should that "imported" colorism be the basis of a Title VII claim? IV. COLORISM—"MADE IN THE U.S.A."? The international nature of skin color-based bias is well documented."" It is clear that colorism is not unique to America. Given that fact and the fact that the United States is a nation of immigrants, what should the result be when "imported" bigotry inserts itself into the workplace? To put it another way, what should be the result if the colorism alleged by a plaintiff stems not from the legacy of slavery and colorism in the United States, but is based on prejudices unique to the history and social constructs of another country? Such was the case in Ali v. National Bank ofPakistan.^'^^ In Ali, a light-skinned Pakistani plaintiff from Punjab province alleged that he was discriminated against by darker-skinned supervisory employees from Sind province."" More specifically, he alleged that was demoted, denied tuition reimbursement, made to run personal errands, and ultimately terminated on the basis of his skin color. The court recognized that "the literal language of the statute which prohibits discrimination on the basis of 'color' would seem to apply to Ali's claim," but stated that "the testimony regarding skin color variations among the peoples of Pakistan does not suf146. Assisi, supra note 17. 147. See Banks, supra note 5, at 1746 n.l52 (extensive listing of international studies); Kari Browne, supra note 17 (Egypt); Christopher A. Charles, Skin Bleaching, Self Hate, and Black Identity in Jamaica, 33 J. BLACK STUD. 711 (2003); Easton, supra note 115 (Philippines); Ronald E. Hall, A Descriptive Analysis of Skin Color Bias in Puerto Rico: Ecological Applications to Practice, 4 J. Soc. & Soc. WELFARE 171 (2000); Tanya K. Hernandez, supra note 105; Darcus Howe, The Hierarchy of Skin Colour Presumes that Caribbean Folk Are at the Bottom of the Pile, NEW STATESMAN, Aug. 16, 2004, at 10 (England); Marta Cruz-Janzen, supra note 37; Theola Labbe, Iraq in Black, THE CRISIS, Mar.-Apr. 2004, at 20; Lewis Machipisa, Rights-Zimbabwe: The Last Minority Group to Find a Voice, GLOBAL INFORMATION NETWORK, Nov. 25, 2002, at 1, available at http://ipsnews.net/ intema.asp?idnews=14122; Felix Neto & Lizalia Paiva, Color and Racial Attitudes in White, Black and Biracial Children, 26 SOC. BEHAV. & PERSONALITY 233 (1998) (Portugal); Garry Pierre-Pierre, A Vivid Look at Race in Brazil, EMERGE (July, 1999) at 78; Larry Rohter, supra note 80. 148. 508 F. Supp. 611 (S.D.N.Y. 1981). 149. Id. at 612. Ali is unusual in that it deals with a light-skinned plaintiff alleging darker-skinned coworkers discriminated against him. However, as noted at the outset of this Article, colorism is defined as discrimination on the basis of skin color. 2005 THE CONTINUING SIGNIFICANCE OF COLOR UNDER TITLE VII 459 flee to merit the division of Pakistanis into distinct 'protected classes' according to color. "'^" The latter language apparently referred to Ali's allegation that the bank had "a policy of discrimination . . . against light-skinned Pakistan citizens from the Punjab province in favor of darker-skinned Pakistan citizens from the province of Sind . . . ."'^' However, the court needlessly complicated the color issue by noting that it did not have the, knowledge of Pakistani culture to determine whether color was a reflection of origin: "[c]olor alone does not suffice to establish provincial origin of a Pakistan citizen.'"" The court failed to recognize that the essential issue in the case was whether Aii suffered adverse employment consequences because of his color, regardless of whether his color was specific to a certain region of the country. The court also found that there was "[n]o statistical evidence presented with respect to the number and color of the employees of the Bank over any stated period of time.'"" But AH brought his claim under the theory of disparate treatment,'^'' not disparate impact,'^^ so the court's reference to statistical evidence seems odd given that the gist of Ali's claim is that he was treated differently based on his color. The unusual nature of the court's comment becomes clearer if one imagines that AH had brought his claim based on race discrimination rather than color. AH was not required to present data that other employees were also mistreated to make out his disparate treatment claim although statistical evidence can be used in a disparate treatment claim as circumstantial evidence of discrimination. The focus of the remainder of this Part of the Article is this language used by the court to describe the interaction between color and other protected categories: 150. W. at 613. 151. W. at 611. 152. W. at 612. 153. Id 154. As established by the Supreme Court in McDonnett Dougtas a complainant in a disparate treatment trial under Title VII of the Civil Rights Act of 1964 must establish a prima facie case of racial discrimination by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants with the complainant's qualifications. McDonnell Douglas Corp. v. Green, 411 U.S, 792, 802 (1973). 155. Disparate impact claims are based on facially neutral policies that have a disproportionate effect on a protected class. "To succeed on a disparate impact claim, a plaintiff must make out a prima facie case by showing that the plaintiff is a member of a protected class and that a challenged employment practice had a significant disparate impact on that class." District Council 37 AFSCME v. New York City Dep't Parks and Recreation, 113 F,3d 347, 351-52 (2d Cir. 1997), Typically, a plaintiff proves impact with statistics. "The evidence in . . . 'disparate impact' cases usually focuses on statistical disparities, rather than specific incidents, and on competing explanations for those disparities." Watson V. Fort Worth Bank & Trust, 487 U.S, 977, 987 (1997). 460 BERKELEY JOURNAL OF EMPLOYMENT & LABOR LA W Vol. 26:2 It would be presumptuous of this court to seek to explain the derivation of the inference of discrimination recognized by the Supreme Court in McDonnell Douglas. Suffice it to note that the presumption of a protected class status on the basis of color is bound up with an entire national racial history. It may well be that there are indigenous discriminatory practices around the world having nothing to do with the American experience. However, there is no basis on this record for the recognition of skin color as a presumptive discriminatory criterion (rooted, one would suppose, in the intermingling of distinctive national or racial groups) in employment in Pakistan, or among Pakistanis in New York, under the McDonnell Douglas guidelines.'^^ The AU court struggled with the question posed at the beginning of this Part: Can color discrimination claims be based on biases brought to the employment setting from other countries and contexts? For a number of reasons, I argue that colorism brought to this country by immigrants should not be distinguished from the historical colorism of the United States. Title VII's protections against color discrimination prohibit an employer from making detrimental employment decisions based on the immutable characteristics of color, regardless of the specific life experiences that shaped the employer's prejudices.'" This Article presents a number of reasons the courts should recognize claims arising from "imported" colorism. 156. Ati, 508 F. Supp. at 613. There is never a need for the court to recognize color as a presumptive discriminatory criterion in a disparate treatment case, whatever the cultural background of the plaintiff and defendant. The McDonnett Dougtas test does not create presumptions, cultural or otherwise, 157. I recognize that there are those, including my friend, civil rights scholar David Chappell, author oiA Stone of Hope, who argue that the prohibitions of Title VII are based upon the lS"" Amendment and should be interpreted in light of the "badges and incidents of slavery" the reconstruction amendments were meant to eliminate. Interview with David Chappell, Professor, University of Arkansas, in Fayetteville, Ark. (Jan. 4, 2005). There are a few reasons to disagree with this view however. First, the cat is out of the bag, so to speak. In Saint Francis College v. Al-Khazraji, 481 U.S. 604 (1987), a case brought under §1981, the Supreme Court's interpretation of race was much broader than the racial history of this country would suggest. In that case, the court found that a claim could be brought between people of the same race, white, who were of different ethnicities. The statute, the court reasoned, was designed to protect "identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics." The plaintiff in Saint Francis was a man of Iraqi descent surely not a plaintiff within the contemplation of the drafters of the reconstruction amendments. And while St. Francis was brought under §1981, and not Title VII, this expansive view of the protected classes is not limited to §1981. See, e.g., Kara L. Gross, Toward Gender Equatity and Understanding: Recognizing that SameSex Harassment is Sex Discrimination, 62 BROOKLYN L. REV. 1165 (1996). Congress' use of the unmodified term 'race,' instead of the specific term 'African-American race,' enables Title Vll to prohibit discrimination against any race, regardless of the race of the employer or employee. Therefore, while Title VII's prohibition against racial discrimination was originally intended to protect only African-Americans—a historically disadvantaged group—the statute has been recognized to protect all races, including whites—a historically empowered group. Indeed, the unmodified term race allows a majority race to bring suit against a minority' race for alleged discriminatory practices. Id. at 1172 (citations omitted). 2005 THE CONTINUING SIGNIFICANCE OF COLOR UNDER TITLE VII 461 First, regardless ofthe source ofthe defendant employer's beliefs, the impact on the plaintiff is the same. He has impermissibly been denied a job or benefit of employment on the basis of an imtnutable physical characteristic. As the studies discussed in Part IV make clear, there is a real economic cost to those who are discriminated against on the basis of their skin color. The fact that an employer comes from Brazil and harbors colorist views based on the sociopolitical dynamics of Brazilian society, for example, is as irrelevant as the fact that a white American employer dislikes Blacks because he was once robbed by a Black person. The issue is not the reason behind the animus; it is the animus itself that is prohibited. Second, denying claims based on "imported" colorism, would produce an anomalous result. The employer who discriminates based on color but provides no reason for harboring the colorist views, or who clearly has been influenced by the cultural influences of this country may be found liable for color discrimination. But, the employer whose foreign background makes it clear that the discrimination comes from cultural values brought to the workplace from elsewhere would not. The dicta of AU suggests that because the latter employer's views are not "bound up with [the] entire national racial history" of the United States, the claim would not be cognizable. However, Title VII, in its plain language, seeks to prohibit discrimination on the basis of color. To make such a determination. Title VII does not require an examination of the interaction of color and national origin. Taking the "national racial history" language of the AU court to an extreme, color claims by light-skinned persons or white persons should not be allowed because historically they have benefited from their skin color. Because skin color is not relevant to an employee's ability to perform a job. As a union side labor lawyer, I take a broader and more inclusive view of the statute. Ultimately all deserve to be treated fairly. Whether that "waters down" the impact ofthe statute remains to be seen. Statutes are not static, nor drafted to anticipate every possible fact scenario. Assume, arguendo, that Title VII's prohibition on color discrimination was initially intended only to apply to blacks. Adopting such a limited view of Title VII's coverage is not a helpful framework for addressing current issues such as those faced by South Asians and others in the wake of September 11, 2003 who find themselves discriminated against on the basis of their appearance. Finally, Professor Chappell argues that there is political fallout from an expansive reading of the statute, which ultimately dilutes its support amongst whites, because some will view an expansive reading ofthe statute as having gone too far. He suggests there is a willingness to acknowledge the continuing legacy of slavery and racism in the country, but allowing a Pakistani to bring a color claim for example, is not within the intended purview of the statute. He argues that there is too much frivolous litigation which has gone far beyond the wrongs the statute was designed to correct. My view of this, and perhaps it is idealistic is that the political support for this approach to the statute is broader when it is perceived as being applicable to all who face discrimination in the workplace. Interviews with David Chappell, Professor, University of Arkansas, January 4, 2005 and with John Walker, noted Civil Rights Attorney, in Little Rock Arkansas, at Philander Smith College, symposium on The Civil Rights Act: Celebrating the 40"' Anniversary of Title VII (September 13, 2005). 462 BERKELEY JOURNAL OF EMPLOYMENT & LABOR LA W Vol. 26:2 discrimination on that basis is, and should be unlawful regardless of the race of the employee. Third, it is possible to separate personal or regional animosity from colorism. The Ali court implies that the antagonism between the parties may be rooted in "the intermingling of distinctive national or racial groups." To get to the heart of the matter, the question ultimately is whether the decision maker would have come to the same conclusion had the plaintiff been of a different color. The court also seems concemed about the fact that it was unfamiliar with the racial climate of the regions of Pakistan, but this knowledge is not essential to the resolution of the matter.''* However, keep in mind that the plaintiffs burden is not to prove the existence of a specific societally based color bias, but rather that the employer made an employment decision based on color bias. Another reason not to distinguish claims is that the underlying harm is the same regardless of its origin, as are the policy reasons for prohibiting the discrimination. The color provisions of Title VII recognize a history of racism and the continuing effects of that history. But if equal employment opportunity is the guiding principle ofthe Title VII, then employment decisions based on any impermissible immutable characteristic that results in illegal discrimination should be prohibited. To effectuate the purposes of Title VII, courts should not be reluctant to recognize color claims regardless of the underlying societal basis for the discrimination. Workplace decisions based on skin color is unlawful discrimination no matter what its origin. V. COLORISM IN THE COURTS A. Cases Brought By the EEOC Many employees are not aware that color discrimination is covered by Title VII or, for that matter, what color discrimination is or is not. But that is changing. As a result of 9/11, there is a greater awareness of color discrimination. I also believe as a result of political events (such as the conflict in Iraq) this awareness will continue.'^' Workplace discrimination suits based on skin color are increasing as workforce diversity increases and as employees become aware that skin color is a protected status. In the late 198O's and 199O's, the EEOC re- 158. In a situation where the plaintiff wished to show that such colorist thinking was pervasive in a particular culture, it would be possible to present expert testimony to that extent, which could provide context for the claim. This evidence might be helpful given the courts' reluctance to find intrarace color discrimination. See Banks, supra note 5. 159. Patrick Mirza, A Bias That's Skin Deep, HR MAG., Dec. 2003, at 62 (quoting S. Robert Royal, Regional Attorney for the Atlanta Office ofthe EEOC). 2005 THE CONTINUING SIGNIFICANCE OF COLOR UNDER TITLE VII 463 ceived fewer than 500 complaints a year alleging skin color discrimination.'*" The agency has taken 19 color discrimination cases to court since 1985.'^' That is changing: "While color discrimination claims account for only about 3 percent of all charges filed with the Equal Employment Opportunity Commission (EEOC), the number has trended upward in the past 15 years, especially since 1994. The EEOC received 1,382 color charges in 2002, almost half of them in the Northeast.'"^^ There has been an increased awareness of color discrimination as reflected by recent press coverage.'*^ Perhaps the case that has received the most press was brought by the Atlanta office of the EEOC on behalf of a dark-skinned plaintiff against an Atlanta Applebee's restaurant.'" The restaurant settled the claim for $40,000 while denying any wrongdoing.'*' The plaintiff was a dark-skinned Black employee who alleged that his lighterskinned manager fired him.'** The plaintiff, Dwight Burch, was hired on as a waiter at the restaurant.'*' Not long thereafter, a new general manager was hired and soon began to make derogatory remarks about the waiter.'*^ After the waiter called the headquarters of Applebee's, the harassment escalated into written reprimands, ending in termination.'*' In addition to monetary damages for the plaintiff, the EEOC and Applebee's signed a consent decree requiring training and reporting by the chain.''" Commenting on the emotions he felt after the settlement, the plaintiff in the case said, "I liked my job and got along well with everyone. No one should have to put up with mean and humiliating comments about the color of their skin on the job.... It makes no difference that these comments are made by someone of your own race. Actually that makes it worse."'" 160. Marjorie Valbrun, EEOC Sees Rise in Intrarace Comptaints of Cotor Bias, WALL ST. J., Aug. 7,2003, at BI. 161. Id. 162. Mirza, supra note 159, at 63. 163. See Dana Hedgpeth, Setttement Reached in Cotor-Bias Suit, WASH. POST, Aug. 8, 2003...

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