Intra-Group Preferencing: Proving Skin Color and Identity Performance Discrimination


[Senator Reid] was wowed by Obama’s oratorical gifts and believed that the country was ready to embrace a black presidential candidate, especially one such as Obama-a “light-skinned” African American “with no Negro dialect, unless he wanted to have one,” as he later put it privately.


The above statement, which journalists Mark Halperin and John Heilemann attribute to Senator Harry Reid, offers anecdotal proof thatAmericans make consequential distinctions among same-race individuals.cLegal scholars have been studying this phenomenon, known as intra-group preferencing, for years. Indeed, in 2000, I contributed to the scholarly literature by publishing an article that directly examines one of the issues raised by Reid’s observation. Shades of Brown: The Law of Skin Color analyzes the ways in which people, of all races, make distinctions within racial categories on the basis of skin color.

This issue arises often in the employment setting. For example, an employer may prefer one African-American employee over another because of the employees’ respective skin tones (assume that one employee is milk chocolate brown and the other is dark chocolate brown). My purpose in Shades of Brown was to demonstrate the sophisticated and nuanced nature of modern discrimination and to argue for legal recognition of skin color discrimination, which is also referred to as colorism. In recent years, the literature on colorism has grown, with scholars across disciplines tackling this phenomenon from both domestic and international perspectives.

Over the past decade, scholars have also paid increasing attention to intra-group discrimination that occurs as a result of certain, usually nonconformist, identity performances.’ For example, an employer may distinguish between women who wear makeup and women who do not, or a woman of color who wears dreadlocks or braids and one who perms (or chemically straightens) her hair. Like the literature on colorism, identity performance scholarship underscores that modern discrimination is not only about the wholesale exclusion of particular groups (e.g., allLatinos or all women), but also about intra-group distinctions.

Educating the public and policymakers about the complex and constantly changing nature of discrimination is no doubt critically important, and scholars in recent years have done an excellent job both explaining intra-group preferencing and making persuasive arguments for legal recognition of intra-group claims. One question, however, has received scant attention in the literature. It is this: assuming a legal basis for intra-group claims, can plaintiffs actually win these cases? In other words, it is one thing to be able to assert a right to relief. It is another to convince a fact-finder to grant that relief.

To be sure, it is difficult as a general matter for plaintiffs to win discrimination cases.”As several scholars have observed, this difficulty may stem in part from judicial bias against these claims.16 Contrary to available evidence, some judges appear to believe that discrimination claims are “generally unmeritorious, brought by whining plaintiffs who have been given too many, not too few, breaks along the way.”” The hurdles are particularly high in race discrimination cases, where some judges analyze the claims from “an anti-affirmative action mindset, one that views both the persistence of discrimination and the merits of the underlying claims with deep skepticism.”

Although the bar is already high for plaintiffs in discrimination cases, there are additional challenges that arise in the context of intra-group claims. Indeed, when one examines the principal colorism and identity performance cases, plaintiffs overwhelmingly tend to lose. This Article identifies and examines four challenges these plaintiffs face. Importantly, the goal here is not to make a case for legal recognition of intra-group claims as that work has been undertaken elsewhere. Instead, by pointing to some of the more common, and more serious, difficulties plaintiffs encounter when litigating intra-group cases, this Article aims to make such claims not only theoretically plausible but also winnable.

The analysis proceeds as follows. Part II provides a more detailed analysis of colorism and identity performance claims, summarizing their similarities and differences and their relationship to other intra-group claims. Part III examines the broader legal landscape within which these claims are asserted and summarizes the judicial response to them. Part IV explores obstacles to relief encountered by plaintiffs in intra-group discrimination cases. Importantly, these obstacles may help to explain why some lawyers are reluctant to accept colorism and identity performance cases and why, when they do, lawyers frequently attempt to fit these claims into more traditional and more familiar analytical frameworks (e.g., by presenting them as race or national origin claims). Part V offers an alternative approach to intra-group claims that may ameliorate some of these difficulties. In short, I argue that instead of focusing inordinately on whether the plaintiff and defendant are of the same class and on whether the plaintiff was treated differently from someone in her class, in assessing liability courts should try to uncover the employer’s conception of the ideal employee and the extent to which the plaintiff deviates from this ideal.

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