Reconsidering the Immutability of Race : An Examination of the Disconnect Between Race in Title VII Jurisprudence and Social Science Literature

This paper discusses reconceptualizing racial discrimination under Title VII of the Civil Rights Act in light of modern social science theories on racial identity. Title VII prohibits employment discrimination on the basis of race, color, religion, sex, or national origin, and the judiciary calls these bases for discrimination “protected classes.” To bring a successful legal claim under Title VII, a person must demonstrate that she actually belongs to a protected class. In the case of a claim of racial discrimination, this means the plaintiff must belong to a racial group based on immutable characteristics, which are traits that cannot simply be “changed at will.” Categorizing people by “race,” however, proves to be increasingly complex in both theory and practice, as the global understanding of “race” shifts. This article discusses modern social science theories of identity to demonstrate that racial identity is derived from a complex set of traits that rely on social context for meaning. This article argues that Title VII should be amended, or the courts’ interpretation shifted, to allow legal recovery for those who are perceived as possessing or who actually possess traits, either mutable or immutable, that correlate with the protected class of race