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74 Geo. Wash. L. Rev. 365 (2005-2006)
Trait Discrimination as Race Discrimination: An Argument about Assimilation

handle is hein.journals/gwlr74 and id is 377 raw text is: Trait Discrimination as Race
Discrimination: An Argument
About Assimilation
Kimberly A. Yuracko*
Introduction
Title VII of the Civil Rights Act of 19641 was passed at a time when
discrimination based on race was often open and categorical. Blacks were
often excluded from jobs or relegated to those with low pay and low prestige
because of their race per se.2 Title VII has been extremely effective at end-
ing such blatant forms of status discrimination.3 Discrimination today often
* Professor of Law, Northwestern University School of Law. I am grateful for comments
and suggestions on earlier drafts from Larry Alexander, Ron Allen, Al Alschuler, Michael
Barsa, David Cruz, David Dana, Mitu Gulati, Mark Kelman, Andy Koppelman, Cristina Rodri-
guez, and Max Schanzenbach. I also benefited greatly from comments at faculty workshops at
Northwestern University School of Law, Washington University School of Law, and Brooklyn
Law School. I am grateful to the Northwestern University School of Law Summer Faculty Re-
search Program for its generous support. Finally, I would like to thank my library liaison, Marcia
Lehr, and my research assistants Mike Durnwald, Sarah Thomas, and Danielle Mathey for their
excellent assistance.
I Civil Rights Act of 1964, 42 U.S.C. § 2000e (2000).
2 See, e.g., Albemarle Paper Co. v. Moody, 422 U.S. 405, 409 (1975) (employer operated a
racially segregated plant reserving high pay and high skill jobs for whites); Griggs v. Duke Power
Co., 401 U.S. 424, 426-28 (1971) (employer refused to hire blacks to any but its lowest paying
jobs).
3 This is not to suggest that status-based race discrimination no longer exists, only that it
rarely takes such open and explicit forms. For examples of the persistence of status discrimina-
tion, see Devah Pager, The Mark of a Criminal Record, 108 AM. J. Soc. 937, 957-58 (2003)
(describing an audit study involving black and white testers looking for entry-level jobs, some of
whom were identified as having a criminal record and some of whom were not; finding that
whites with criminal records received more favorable treatment than blacks without criminal
records); MARGERY AUSTIN TURNER ET AL., OPPORTUNITIES DENIED, OPPORTUNITIES DIMIN-
ISHED: RACIAL DISCRIMINATION 1N HIRING 61-62 (1991) (finding that between black and white
testers matched for traits and qualifications responding to newspaper job advertisements the
white testers advanced further in the hiring process and received job offers at a significantly
higher rate than the black testers); Angela Onwuachi-Willig, When Different Means the Same:
Applying a Different Standard of Proof to White Plaintiffs Under the McDonnell Douglas Prima
Facie Case Test, 50 CASE W. RES. L. REV. 53, 76 (1999) (describing a Fair Employment Council
of Greater Washington audit study finding black testers posing as job applicants were treated
significantly worse than white testers 24% of the time and Latinos were treated worse than
whites 22% of the time). Sometimes it is not clear whether discrimination is status-based or
trait-based. Compare Marianne Bertrand & Sendhil Mullainathan, Are Emily and Greg More
Employable than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination, 94
AM. ECON. REV. 991, 992, 1006-09 (2004) (finding that resumes sent in response to newspaper
help-wanted ads generated 50% more callbacks for interviews when they had a white name on
them than when they had an African American name on them and concluding that the differen-
tial was the product of race discrimination), with Roland G. Fryer, Jr. & Steven D. Levitt, The
Causes and Consequences of Distinctively Black Names 26-30 (Nat'l Bureau of Econ. Research,
Working Paper No. 9938, 2003) (arguing that employers give fewer interviews to applicants with
April 2006 Vol. 74 No. 3

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