79 N.Y.U. L. Rev. 1134 (2004)
Performing Racial and Ethnic Identity: Discrimination by Proxy and the Future of Title VII

handle is hein.journals/nylr79 and id is 1148 raw text is: ARTICLES
PERFORMING RACIAL AND ETHNIC
IDENTITY: DISCRIMINATION BY PROXY
AND THE FUTURE OF TITLE VII
CAMILLE GEAR RICH*
Courts interpreting Title VII have long treated race and ethnicity as biological, mor-
phological concepts and discrimination as a reaction to a set of biologically fixed
traits. Meanwhile, they have rejected claims concerning discrimination based on
voluntarily chosen physical traits or performed behaviors and that communicate
racial or ethnic identity. Yet race and ethnicity are effectively produced-that is,
they do not exist until one is socially acknowledged as possessing socially coded
racial or ethnic markers, whether they are fixed physical features, voluntary appear-
ance choices, or behaviors. This Article argues that it is error to distinguish
between Title VII cases concerning morphological as opposed to voluntary racially
or ethnically marked features, as the discriminator's motives and the effects of her
behavior are the same. Moreover, the morphological model of race/ethnicity is fun-
damentally contradicted by contemporary biological and sociological studies on
race, discrimination studies, and identity performance theories, which indicate that
individuals actively work to perform racial and ethnic status regardless of, and
sometimes in spite of their morphological traits. Drawing on these studies, this
Article shows that courts must hear discrimination claims based on voluntary fea-
tures if they are to provide a more credible analysis of modern forms of
discrimination.
INTRODUCTION     .................................................. 1136
I. ONE OF THESE THINGS IS NOT LIKE THE OTHER:
LEARNING TO RECOGNIZE RACIAL AND ETHNIC
D IFFERENCE   .............................................   1145
A. Morphology-Based Ascription ...................... 1145
1. A Primer on Morphology-Based Racial and
Ethnic  Ascription  ...............................   1145
2. Understanding the Politics of Morphology-Based
A scription  ......................................   1149
B. Race/Ethnicity Performance-Based Ascription ....... 1158
* Copyright © 2004 by Camille Gear Rich. Many thanks to the numerous people who
provided useful critique and support during the writing of this Article. My sincerest thanks
to Dean Anthony Kronman of the Yale Law School for his invaluable advice and friend-
ship, and to the Yale Law School for its financial support during the germinal phase of this
Article. Also thanks to Professors Vicki Shultz, Reva Siegel, and Jack Balkin for their
inspiration and guidance, and special thanks to my husband Stephen M. Rich for the loving
debates that no doubt enriched my efforts. This Article is dedicated to the memory of
Hayley S. Thomas.
1134

Imaged with Permission of N.Y.U. Law Review

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