The following article, “Shades of Brown: The Law of Skin Color”, by Professor Trina Jones, examines how skin color through the centuries and decades have affected our lives: economically, politically, socially. She gives massive evidence on how the future bodes for us all where the issue of skin color (“colorism”) rears its ugly head. Prof. Jones details how the start of colorism began during indentured servitude, throughout slavery and during the reign of pigmentocracy during Jane Crow segregation.
In her analysis, Prof. Jones divulges how even today, colorism as well as racism colors all of our day-to-day activities, even in the world of intimate relationships. (See my post, “Interracial Dating Online: The Importance of Skin Color in Choosing Who We Date“.)
With the increasing numbers of IRs in the present, and into the future, with the clamor of so-called multiracial groups to have the U.S. Census Bureau create a new category for multiracials, with the reality looming on the horizon that America will one day use color (instead of just race) to designate who has the most humanity to treated with respect, and who has the least, with the potential for America to become like Brazil with its multiple color/shade designations: preto, moreno, pardo, etc., we will see that the future is not so bright where the issue of race, gender and standing in our society is decided by how light or how dark one’s skin color may be; how close one is to white, and how close one is to black.
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SHADES OF BROWN: THE LAW OF SKIN COLOR
TRINA JONES†
I. DISTINGUISHING RACE AND SKIN COLOR
II. COLOR DISTINCTIONS THROUGH THE LENS OF TIME
A. Before the Civil War: 1607-1861
B. After the Civil War: 1865-2000
C. The Social Psychology of Contemporary Black-White Colorism
III. COLOR IN CONTEMPORARY LAW
A. Statutory Support for Color Claims
B. Substantive Content of Color Claims
C. Race, Color, Mixed Racial Identity and Employment Discrimination Law
D. Colorism and the Quest for Equality of Opportunity
Because antidiscrimination efforts have focused primarily on race, courts have largely ignored discrimination within racial classifications on the basis of skin color. In this Article, Professor Jones brings light to this area by examining the historical and contemporary significance of skin color in the United States. She argues that discrimination based on skin color, or colorism, is a present reality and predicts that this form of discrimination will assume increasing significance in the future as current understandings of race and racial classifications disintegrate. She maintains that the legal system must develop a firm understanding of colorism in order for the quest for equality of opportunity to succeed.
[*pg 1488]
INTRODUCTION
On the Saturday evening following my mother’s recent marriage, old friends and new gathered at a local restaurant to celebrate the occasion. While standing in the buffet line, I turned to introduce my new step-niece, Aaliyah (age 4), to the son of a family friend, LaShaun (age 5). Immediately following the introduction, LaShaun, who is clearly outgoing and charismatic, looked up at me with the innocent honesty of a child and said, “I know another Aaliyah at my school, but she’s brown.”1
The first thing LaShaun, whose skin is a rich Michael Jordan chocolate, noticed about Aaliyah was her light golden brown skin. LaShaun did not create or invent these differences. Without deliberate or conscious design, his statement merely reflects the fact that he operates in a social context where people learn early on that color is significant.2 Although some people may claim that color differences [*pg 1489] within racial groups are without meaning and that people do not notice or care about fine differences in skin pigmentation, the observations of a five-year-old child belie these statements. And so does history.3 This Article examines the prejudicial treatment of individuals falling within the same racial group on the basis of skin color in the context of antidiscrimination law.4 In a 1982 essay, Alice Walker called this prejudicial treatment “colorism.”5 Although this terminology appears to be relatively new, colorism is not a recent invention. In the United States, this form of discrimination dates back at least as far as the colonial era.6 Yet, notwithstanding its long existence, colorism is often overshadowed by, or subsumed within, racism. As a result, courts are either unaware of the practice or tend to minimize its im- [*pg 1490] portance.7 This state of affairs is unfortunate because, as I demonstrate in this Article, color differences are still frequently used as a basis for discrimination independently of racial categorization.8 The analysis proceeds in three parts. Part I distinguishes colorism from racism. Because the ultimate result of race-mixing was the creation of tone or hue variations within racial groups, Part II explores the history of miscegenation in this country in order to demonstrate how society has used skin color to demarcate lines between racial groups and to determine the relative position and treatment of individuals within racial categories. This history illuminates contemporary discrimination on the basis of color. Part III examines the judicial response to contemporary claims based on color and explains why courts can and should permit color claims in the context of antidiscrimination law. Part III also investigates the suggestion that racial classification may become increasingly difficult in the future as the acceptability of the one-drop rule declines and as race-mixing increases. Assuming that there is merit to this suggestion, Part III probes whether legal recognition of claims based upon skin color will provide suitable redress for discrimination against persons who are neither visibly White nor visibly Black.9 My hope is that this Article will assist in the development of a more nuanced understanding of the intricate ways in which people discriminate in this country. More specifically, by engaging in this investigation, I seek to prevent the law from becoming a source of injustice by showing how progress towards equality of opportunity may be overstated if colorism is ignored. Briefly, in the aftermath of the civil rights movement, employers have hired increasing numbers of Blacks into positions not previously available to them. The increasing number of Blacks in these positions suggests racial progress. Studies show, however, that Blacks in positions of prominence and authority [*pg 1491] tend to be lighter-skinned.10 Thus, some employers may be hiring only a subset of the Black population, a subset selected, in part, based on skin color. Because some Blacks are being denied access to employment opportunities due to colorism, the appearance of progress is more limited than we might assume.11 Legal recognition of color claims is one way to begin redressing this situation. [*pg 1492] It is important to note that the analysis contained herein focuses on color dynamics among Black Americans. Although some scholars have criticized the tendency to analyze racial issues in terms of a Black/White dichotomy,12 I have chosen to concentrate on the Black community in order to limit the magnitude of this project without sacrificing its utility. In addition, this focus allows me to probe more directly the peculiar symbolism of black and white as colors. This symbolism suggests that although colorism is an important element of racism, it is equally its own distinct phenomenon. Finally, although I do not wish to endorse the reduction of race relations to a Black/White paradigm, I have chosen to focus on the dynamics of the racial group with which I am most familiar. I recognize that similar issues concerning skin color exist within Native American, Asian-American, and Latino communities,13 and believe that issues peculiar to those communities merit detailed study. Although such analysis is beyond the scope of this initial project, I hope this Article will nonetheless be of assistance to scholars in future investigations involving questions specific to other racial groups.14 [*pg 1493]
I. DISTINGUISHING RACE AND SKIN COLOR
Race and skin color are distinct phenomena that sometime overlap. Because people are not accustomed to thinking of these concepts separately, I pause here to discuss their relationship. My starting premise is that both race and skin color are social constructions;15 their importance comes from the salience that we give them.16 Scientific literature supports this view. Indeed, many scientists have concluded that biological races do not exist.17 There are few, if any, genetic characteristics possessed exclusively by all Blacks and, similarly, few, if any, genetic characteristics possessed exclusively by all Whites.18 Moreover, the genetic variation between racial groups is [*pg 1494] small when compared to the genetic variation within those groups.19 While morphological differences in hair and skin tone between racial groups are genetically based, scientific inquiry has not demonstrated that the genes responsible for these characteristics also account for “differences between individuals in language, moral affections, aesthetic attitudes, or political ideology.”20 Although standing alone they are meaningless, gross morphological differences (e.g., the broadness of the nose, the fullness of the lips, the curl of the hair) have and continue to be used to delineate racial categories and to assign persons to racial groups.21 Among these characteristics, skin color continues to play an important role in indicating an individual’s race. The lighter or more white one’s skin, the more likely one is to be categorized as Caucasian or White. The darker or more brown one’s pigmentation, the more likely one is to be categorized as Negroid or Black. These categories are laden with social meaning. In the United States, being White generally means that one has access to the psychological and economic privileges of Whiteness.22 Being Black generally means that one is pegged lower in [*pg 1495] the socioeconomic hierarchy.23 Racial designations, however, are not made solely on the basis of skin color. Historically, other factors have been used to assign people to racial categories, including, among other things, ethnicity24 and bloodlines.25 For example, even if one is so light as to appear White, if [*pg 1496] one’s immediate ancestors are known to be Black, then one might still be considered Negroid.26 In that situation, one’s skin color does not determine one’s race. Rather, ancestry acts as the racial designator.27 [*pg 1497] Thus, racial categorization does not rest solely upon skin color. Multiple factors are and have been used to indicate race. One should not confuse, however, the indicator (e.g., skin color or ancestry) with the thing that it is indicating (e.g., race). Skin color is one device for assigning people to a racial category. Race is the social meaning attributed to that category. It is a set of beliefs or assumptions about individuals falling within a particular racial group. These beliefs may be wide-ranging, comprising assumptions about the group’s intellect, physical attractiveness, work ethic, class, and morality, among other things. For example, if one were to see Oprah Winfrey and Rosie O’Donnell on the street, Ms. Winfrey’s brown skin tone would likely cause the viewer to conclude that she is Black. However, her skin color would not be the determinant of her status. That is determined by her classification as Black and the accompanying societal views attached to that racial classification. With colorism, skin color does not serve as an indicator of race. Rather, it is the social meaning afforded skin color itself that results in differential treatment. For example, envision a situation in which two individuals fall within the same race — one is milk chocolate brown and the other is dark chocolate brown. Despite the fact that both persons are members of the same race, one may receive superior treatment based upon her skin color.28 When encountering these two individuals, the viewer does not use skin color to assign them to a particular racial category. Rather, any difference in treatment results not from racial categorization per se, but from values associated with skin color itself. Because it is views about color that trigger the differential treatment in this circumstance, this form of discrimination is most accurately called colorism. Thus, with colorism, it is the social meaning afforded one’s color that determines one’s status. With racism, it is the social meaning afforded one’s race that determines one’s status. People often confuse skin color and race because skin color is used to assign people to racial categories. Indeed, colors are commonly used to describe racial categories (i.e., Black is used to describe African-Americans and White is used to describe Caucasians). In ad- [*pg 1498] dition, 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. That is to say, notwithstanding pride-saving and race-affirming statements like “Black is Beautiful”29 and “the blacker the berry the sweeter the juice,”30 phrases like “White is right” more accurately capture contemporary understandings of both the racial and the color hierarchy in the United States. Thus, with both race and skin color discrimination, the lighter one’s skin tone, the better one is likely to fare economically and socially. This parallelism often leads people to assume that racism and colorism are the same.31 As I have explained above, they are not. It is important to note that colorism operates both intraracially and interracially.32 Intraracial colorism occurs when a member of one racial group makes a distinction based upon skin color between members of her own race. Thus, when elite Black social clubs denied membership to applicants who were too dark in the nineteenth and early twentieth centuries, they were practicing intraracial colorism.33 Interracial colorism occurs when a member of one racial group makes a distinction based upon skin color between members of another ra- [*pg 1499] cial group. For example, a White Hollywood producer might make casting choices between Whoopi Goldberg34 and Halle Berry35 on the basis of skin color.36 Colorism may also occur outside of this comparative framework. As I explain in Part III, people may use color simply as a trigger for difference when they cannot place a person within a specific racial category. Notwithstanding the complex history of colorism, we have, for the most part, bluntly divided the world into White and Black and regarded all individuals within a particular category in a monolithic fashion as if they were subject to the same treatment. As noted above, however, the matter is not merely one of distinguishing between White and Black, for within these broad categories further distinctions have been and continue to be made based upon skin color. Simply put, not all colors (or tones) are equal, and many proceed upon the belief that, even within groups, “lighter is righter.” In order to understand the nuanced ways in which discrimination operates and differentially impacts similarly but not identically situated people, we must examine and attempt to understand color. Such understanding begins with history.
II. COLOR DISTINCTIONS THROUGH THE LENS OF TIME
The practice of race-mixing in the United States produced a population with skin tones of varying hues. Over time, society attached various meanings to these color differences, including assumptions about a person’s race, socioeconomic class, intelligence, and [*pg 1500] physical attractiveness. In order to understand the development of the color hierarchy in the United States and the meanings attributed to skin color today, a survey of this history is necessary. Section A briefly reviews colorism before the Civil War. Section B examines colorism within the Black and White communities since Reconstruction. Section C explores the social psychology of contemporary colorism. Because short historical summaries rarely reflect variations in practices and beliefs within large geographical areas over time, it is important to keep in mind that there were exceptions to the general trends outlined in Section A that are not detailed here. In addition, the contrast between practices of the Upper South and Lower South was not always sharp. For example, tolerance for miscegenation in South Carolina ebbed and flowed from the colonial era until the Civil War.
A. Before the Civil War: 1607-1861
Professor Joel Williamson has noted that “Whites and blacks had been mixing in Africa, Europe, and Asia eons before Columbus sailed the western ocean.”37 Thus, the first explorers to set foot on North American soil were technically mixed-race individuals. Accordingly, “black was never totally black, and white was never entirely white.”38 This pattern of race-mixing continued with the European settlement of Jamestown in 1607 and the arrival of the first Africans shortly thereafter.39 At a time when there was a shortage of White women,40 it was not uncommon for White men to interact sexually with Black [*pg 1501] women.41 Whether miscegenation42 was objectionable to ruling-class Whites depended upon the characteristics of the participants. Because the status of children followed that of the mother,43 White planters would receive an economic advantage (by increasing their slave holdings) through miscegenation with Black slave women.44 Miscegenation among non-landed lower classes, however, caused landed elites to fear that Black slaves and poor indentured White servants might unite against them and threaten the existing socioeconomic order.45 [*pg 1502] As early as 1662, anti-miscegenation statutes began to appear.46 These statutory enactments, however, neither eliminated voluntary sexual relations between Whites and Blacks nor thwarted the sexual aggression of White slave owners towards their Black female slaves.47 As the offspring of these unions proliferated, colonists soon faced a pressing question: were these children Black (and therefore slaves) or White (and therefore presumptively free)?48 The origin of colorism is inextricably linked to the way in which colonial legislatures responded to this question because one of the more distinguishing features of mulattoes,49 or mixed-race individuals, was skin tone.50 [*pg 1503] 1. The Upper South. In the Upper South (the area reaching south from Pennsylvania into parts of North Carolina) the initial interracial unions primarily involved White male indentured servants and Black slave women.51 As a result, colonial legislators in this region took the harshest stance against miscegenation and mixed-race individuals.52 To deter miscegenation, these legislators proclaimed that the children of Black slave women would be slaves notwithstanding the race of their fathers (and their lighter skin tones).53 Although settling the status of a large number of mulattoes,54 this legislation did not completely resolve the matter; mulatto children born of free White women or free Black women remained free. In response, legislatures in the Upper South undertook additional measures to resolve the status of mulatto children of White women and to deter interracial marriage. For example, in 1691, the [*pg 1504] Virginia Assembly55 declared that any English woman who gave birth to “a bastard child by any Negro or mulatto” would be heavily fined or subject to five years of servitude and that the child would be bound into servitude until it reached age thirty.56 On the subject of interracial marriage, Virginia threatened to banish from the colony any White person who married a Negro or mulatto.57 To some extent, this provision deterred miscegenation between free Black women and White men. These legislative efforts, designed to prevent future miscegenation, did not address the status of free mulattoes already in the population. For the most part, these mulattoes were poor and were regarded unfavorably by the ruling elite.58 Not surprisingly, they came to be classed with and to occupy the same status as Blacks.59 Again, the situation in Virginia is illustrative. In a 1705 statute, Virginia prohibited Blacks, Indians, and mulattoes from holding office and from serving as witnesses in legal proceedings.60 Shortly thereafter, in 1723, Virginia ordered that free mulattoes could no longer vote61 and could only possess firearms under special, highly restrictive circumstances.62 [*pg 1505] Thus, by the mid-eighteenth century, mulattoes were “firmly classed with Negroes and in effect lumped on that side of the race bar.”63 As the Revolutionary War approached, the number of free Blacks and mulattoes in the Upper South increased,64 and authorities became increasingly pressed to draw a sharp line between the privileges of White citizens and those of free Blacks.65 Inevitably, colonial legislators were called upon to determine with more clarity who was Black.66 Acting in 1785, Virginia defined a Negro as a person with a Black parent or grandparent.67 Over time, this definition was broadened to include persons with less than one-fourth Black blood.68 Ultimately, the one-drop rule was born. Under that rule, any person with even a drop of Black blood would have the same legal status as a pure African.69 As one scholar notes, “no matter how White looking or White acting someone of mixed ancestry [was] or how little Blackness [was] in a person’s genetic makeup, that person [was] considered Black.”70 In effect, the one-drop rule maintained the status quo of White privilege by casting mulattoes in the same role of social outcast as unmixed Blacks.71 [*pg 1506] 2. The Lower South. The Lower South (the region extending from parts of North Carolina southward to the Gulf of Mexico) exhibited greater tolerance for racial mixing.72 For example, in South Carolina, vast plantations with large numbers of Black slaves resulted in White slave owners and overseers having constant sexual access to Black slave women. As a result, racial mixing among White men and Black slave women was frequent.73 Tolerance for racial mixing was equally strong in Louisiana, especially in New Orleans, where mixing between Blacks and Whites reached its highest levels due to a surplus of White men and mulatto women.74 As one scholar has noted, “[s]o common was mixing among the elites of both races that it came to be institutionalized in ‘quadroon balls.'”75 These balls were social events at which wealthy White men courted prospective mulatto mistresses.76 Consistent with its more lenient stance on miscegenation, the Lower South took a more generous view of free mulattoes. Unlike the Upper South, the Lower South afforded free mulattoes a status [*pg 1507] superior to that of Blacks.77 Although mulattoes in the Lower South were not as numerous as those in the Upper South (and not as many were free), those who were free tended to dominate the free Black community in both numbers and influence.78 The lightest of the light-skinned lived almost as well as their White neighbors. In Louisiana, free mulattoes were particularly prosperous. In fact, some were wealthy slave-owning planters79 whose children were educated abroad.80 Several factors may have contributed to the Lower South’s more lenient regard for mulattoes. Free mulattoes in the Lower South were often the children of wealthy White men as opposed to the White underclass.81 Some of these men freed their mixed-race offspring and helped them to develop trades and businesses.82 Thus, even though their numbers were smaller than in the Upper South, free mulattoes in the Lower South benefited from the socioeconomic status of their White fathers. Even among the enslaved, slave owners sometimes displayed a preference for mulattoes by assigning them to less onerous indoor positions as domestics or artisans.83 The influential presence of White immigrants from the British Islands of the West Indies also contributed to the elevated stature of free mulattoes in the Lower South. For example, some of the richest [*pg 1508] and most influential settlers in South Carolina came from the most powerful families in Barbados.84 By the time Charles Town was settled in 1670, the superiority of mulattoes to Blacks was well established in Barbados, and this hierarchy was imported into South Carolina.85 A similar phenomenon occurred in lower Louisiana, where French immigrants and settlers from the island of Santo Domingo heavily influenced colonial society.86 Thus, instead of grouping mulattoes into the undifferentiated category of Black, the Lower South treated mulattoes as a third category, an intermediate class between Blacks and Whites.87 Pragmatic reasons drove southern Whites to maintain this buffer class. The need for large-scale slave labor on massive sugar and rice plantations meant that the number of Blacks greatly outnumbered the number of Whites in many areas of the Lower South.88 Fearful Whites looked to mulattoes as a mediating influence to help control Black slaves. The report of a legislative commission appointed to investigate a planned slave insurrection in 1822 captures the thinking of southern Whites. The commission noted:
[F]ree mulattoes are “a barrier between our own color and that of the black – and, in cases of insurrection, are more likely to enlist themselves under the banners of the whites. . . . Most of them are industrious, sober, hardworking mechanics, who have large families and considerable property; and so far as we are acquainted with [*pg 1509] their temper, and dispositions of their feelings, abhor the idea of association with the blacks in any enterprise that may have for its object the revolution of their condition. It must be recollected also, that the greater part of them own slaves, and are, therefore so far interested in this species of property as to keep them on the watch, and induce them to disclose any plans that may be injurious to our peace – experience justifies this conclusion.”89
As a consequence of the above factors, authorities in South Carolina did not adopt the one-drop rule, which would have destroyed the three-tier hierarchy. Instead of determining status by blood, South Carolina authorities elevated free mulattoes who maintained a good reputation in the community and gave them access to White privileges. Mulattoes who were “proper acting,” a quality determined by their wealth and education, could even apply for legal standing as “White.”90 Authorities in Louisiana also rejected the one-drop rule and instead made fine distinctions on the basis of skin tone and genealogy. For example, in some places, persons who were one-sixty-fourth Black were called “sang-meles”; persons three-fourths Black were called “sambos”; and persons seven-eighths Black were referred to as “mangos.”91 Such fractional divisions were impossible to determine with precision absent knowledge of a person’s ancestry; therefore, these distinctions were often made on the basis of skin color. Thus, by the mid-nineteenth century, two trends were apparent. In the North and in the Upper South, mixed-race persons shared the same status as Blacks under the one-drop rule. In the Lower South, distinctions within the Black population based upon mixed-racial heritage and skin color were made routinely. Skin color differences were indicators of relative status. In addition, the mulatto hypothesis — the theory that light-skinned Blacks were intellectually superior because of their White blood — was well established within the White [*pg 1510] community.92 Mulatto slaves brought the highest prices on the slave market and were awarded some of the most coveted indoor assignments on plantations, while the more arduous field work was typically left to darker-skinned slaves.93 The preferential treatment received by some mulattoes (and the fact that some mulattoes owned slaves in the Lower South) inevitably infected relations between Blacks and mulattoes. As light-skinned slaves began to affect the ways of upper-class White families and to flaunt their higher social and educational achievements, discord developed within slave communities.94 Tensions escalated within communities of free Blacks as well due to an increase in the number of free Blacks in the post-Revolutionary War era.95 Fearing that Whites would associate them with the poorer, darker-skinned newly-freed slaves, some mulattoes in the Lower South began to discriminate actively against those who were darker than themselves and to socialize exclusively with other mulattoes. As the nation moved towards civil war, southern Whites found it increasingly difficult to justify slavery once the color line had become blurred by a significant mulatto population. Not surprisingly, tolerance of miscegenation and the preferential treatment of mulattoes declined, as did support for the three-tier system of racial classification.96 Fueled by a need to defend slavery, the movement for persons to be identified as either White or Black gained in strength, and the Lower South gradually became a two-class society racially divided by the one-drop rule. By the start of the Civil War, voluntary sexual rela- [*pg 1511] tions between Whites and Blacks were less common in the South.97 As Whites began to reject mulattoes, mulattoes, in turn, began to form alliances with Blacks.98
B. After the Civil War: 1865-2000
Although sexual activity between the races declined in the wake of the Civil War, post-bellum anti-miscegenation efforts could not undo the results of more than two centuries of race-mixing. Skin color variations continued to expand within the Black population as mulattoes and Blacks interacted sexually. More importantly, the meanings ascribed to these color differences in the pre-Civil War era continued to play out within the Black community in the post-bellum period. 1. Colorism Within the White Community. By the latter part of the nineteenth century, ideas about biologically determined racial superiority were fully developed.99 Concerns that racial mixing would lower the biological quality of the White race fueled efforts to keep the races apart.100 By 1883, the era of Jim Crow racism had begun,101 bringing laws that not only prohibited interracial marriage, but also mandated separate seating for Blacks and Whites in “trains, buses, theaters, libraries, and stores, and required separate schools, rest rooms, drinking fountains, parks, swimming pools, and other public [*pg 1512] facilities.”102 This system of racial segregation was so prevalent that more than half of the states maintained anti-miscegenation statutes on their books as late as 1955.103 Notwithstanding these statutes, miscegenation continued and the mixed-race population grew104 (although not as rapidly as in the pre-War period). In response, states turned to racial classifications in an effort to restore the sharp line between White and non-White (a necessary measure in order to enforce Jim Crow laws). Legislation in Virginia illustrates the efforts of state legislatures to ensure that mixed-race individuals were legally defined as Black. Virginia created four racial classifications: White, Indian, Negro, and mulatto. From 1785 until at least 1910, mulatto was defined as a person with at least “one-fourth part or more of negro blood.”105 Many Virginians feared that one-fourth was too generous a percentage, and in 1910, the Virginia legislature broadened the definition of “a colored person” to include any person who possessed at least one-sixteenth Black blood.106 Subsequently, in 1924, as paranoia about Whites being contaminated with Black blood grew, the Virginia legislature determined that a “white person” was a person with “no trace whatsoever” of Black blood.107 Similarly, in 1930, the legislature defined “colored” as “every [*pg 1513] person in whom there is ascertainable any negro blood.”108 Hence, the legislature codified the one-drop rule. Although most Whites were content to operate under the one-drop rule, there is evidence to suggest that, when forced to deal with Blacks, Whites preferred Blacks with lighter skin tones.109 This preference was reflected in late nineteenth- and early twentieth-century literature. In that literature, color was critical to the characterization of Blacks, especially Black women. In a review of this material, Kathy Russell, Midge Wilson, and Ronald Hall note that “[w]hen portrayed as the romantic interest of either a Black or White man, the Black heroine was typically light-skinned, beautiful, and passive.”110 These heroines usually met with a tragic demise, earning such characters the name “tragic mulattas.”111 Colorism was also apparent in employment practices. From Reconstruction to well into the twentieth century, de- [*pg 1514] sired positions regularly went to lighter-skinned Blacks over equally qualified darker-skinned Blacks.112 Many of these trends continue today. As contact between the races has increased (especially in the aftermath of the civil rights movement), Whites still seem to prefer and to find less threatening persons who look more like themselves.113 These preferred individuals tend to be lighter-skinned and economically better-off.114 Black women who play romantic leads in major Hollywood films tend to have lighter skin and longer hair.115 Lighter-skinned women with European features predominate among successful Black contestants in beauty pageants and in music videos.116 They are also more likely than darker Blacks to be selected to endorse mainstream commercial products.117 In other employment settings, sociologists have found that even when researchers control for socioeconomic background, lighter-skinned Blacks fare better educationally and occupationally than their darker peers.118 Recent demographic changes highlight the continuing significance of skin color to the White community. With the rapid growth in the number of people of color in some parts of the United States, the need for a buffer class, or a group capable of bridging the gap between the “White elite” and the “untamed darker masses” may be [*pg 1515] reemerging.119 As before, the most likely candidates to fulfill this function are those who appear closer to White.120 2. Colorism Within the Black Community. In the post-Civil War era, skin color differences continued to play an important role within the Black community, as elite mulattoes121 sought to maintain the privileged status they had acquired during slavery. In order to distinguish themselves from the darker-skinned masses, these mulattoes established separate communities in which skin color served as the key to access. Mulattoes formed exclusive social clubs, like the Blue Vein Society of Nashville,122 and created separate churches.123 In the former, admission was based upon whether an applicant’s skin color was light enough for the veins in the wrist to be visible.124 In the latter, the paper bag test was sometimes employed to determine admissibility. Under that test, persons seeking to join a [*pg 1516] color-conscious congregation were required to place their arm inside of a brown paper bag and could attend church services only if the skin on their arm was lighter than the color of the bag.125 Mulattoes also lived in separate residential communities like the Chatham and East Hyde Park sections of Chicago, and the Striver’s Row and Sugar Hill areas of New York, which were known to be populated by light-skinned professionals.126 In addition, mulattoes formed separate professional and business associations.127 One of the most important areas in which mulattoes received superior treatment to darker-skinned Blacks was in education. Mulattoes formed preparatory schools and colleges that denied access to persons who were too dark.128 Many historically Black colleges and universities established in the nineteenth century also discriminated on the basis of color in their admissions process.129 Not only were educational institutions segregated by color, but their curricula differed as well. In schools attended by mulattoes, students received a liberal arts education. By contrast, darker-skinned Blacks were taught in schools and programs that focused primarily on vocational learning.130 This focus on training in practical skills reinforced the placement of darker-skinned Blacks into lower-paying, less-skilled positions. Thus, at the turn of the century, the class of successful Blacks was largely comprised of the visibly-mixed population. These differences were reflected in the leadership of the Black community, where mulatto elites also dominated the intellectual and political life.131 Indeed, [*pg 1517] of the twenty-one men and two women among W.E.B. Du Bois’s Talented Tenth,132 all were mulatto save one.133 Although the mulatto elite were generally in a higher socioeconomic class than unmixed Blacks due to their historically favored status,134 they were nonetheless rejected by the White community because of their Black blood.135 In addition, their lighter skin and better socioeconomic status spawned resentment within the Black community.136 Some of this resentment may have been fueled by the practice of passing, whereby light-skinned Blacks who looked sufficiently White would conceal their Black ancestry and pretend to be White.137 For the most part, however, the mulatto elite was admired by Blacks [*pg 1518] and, throughout the early part of the twentieth century the bond among Blacks of all skin tones grew.138 The alliance between mixed and unmixed Blacks was further strengthened during the Black Power movement of the 1960s.139 That movement revived the affirmation of Blackness that had characterized the Harlem Renaissance. The celebration of all things Black (e.g., “black pride, black beauty, black achievement, black history, and the use of the term ‘black’ rather than ‘Negro'”140) comprised a major portion of the agenda of the Black Power movement. On the surface, skin color differences seemed less important as light- to medium-skinned Blacks like Andrew Young, Jesse Jackson, Julian Bond, Adam Clayton Powell, Jr., and Angela Davis joined forces with darker-skinned leaders like Eldridge Cleaver, Stokely Carmichael, and Huey Newton. Still, at the same time that “Black unity” was the rallying cry of the movement, lighter-skinned Blacks were sometimes ostracized and made to feel as if they had to prove their Blackness. The perceived demand for lighter-skinned Blacks to prove their loyalty was due to a learned mistrust, which may have been fueled by the fact that some lighter-complected persons had historically rejected their status as members of the Black race because of feelings of superiority or out of an effort to improve their socioeconomic standing in society.141 Throughout the 1970s, some members of the Black community continued to view disfavorably lighter-toned Blacks. These individuals were stereotyped as morally weak and mentally unstable because of their mixed-racial heritage.142 They were also accused of thinking [*pg 1519] that they were more intelligent and attractive than unmixed Blacks.143 Despite these negative critiques, if a lighter-toned person exhibited allegiance to Black causes and embraced her Black heritage, darker Blacks usually accepted her into their extended family.144 The above history has affected contemporary relations within the Black community where evidence of colorism still exists. When their guards are down, many Blacks will readily share stories involving intraracial colorism.145 As is the case within the White community, the dominant preference operates in favor of lighter skin tones. Researchers have found that when asked to choose from a selection of White and Black dolls, Black children tend to select White dolls.146 [*pg 1520] Black men tend to prefer lighter-skinned women as intimate companions.147 Blacks with lighter skin tones also fare better educationally and economically than darker Blacks.148 Indeed, since the 1960s, most Blacks elected or appointed to prominent governmental positions have had light skin.149 Colorism among Blacks does not operate uniformly in favor of persons with lighter skins. Indeed, some Blacks with darker skin pigmentation distrust and have expressed hostility towards Blacks with lighter skin tones.150 For example, when Sharon Pratt Dixon ran for mayor of Washington, D.C., some Blacks questioned whether this light-skinned Black woman could understand the issues that affected [*pg 1521] them.151 Similarly, when Vanessa Williams was crowned as the first Black Miss America, some Blacks criticized the pageant for selecting someone who was not “Black enough.”152 Although colorism has existed within the Black community for centuries, we have for the most part stopped employing different labels for persons who are different shades of brown. In recent years, however, there have been growing signs of fission within the Black community. This trend is evident in the modern Multiracial Category Movement (“MCM”). Demographic evidence indicates that the primary proponents of this new category are biracial (Black-White) persons or monoracial (Black or White) parents acting on behalf of their biracial children.153 Because the MCM involves the creation of a separate racial category (or intermediate category) of mixed-race people whose lighter brown skin tone is one of their more distinguishing physical features, it is important to discuss briefly the implications of this movement on contemporary colorism.154 3. The Multiracial Category Movement and Colorism. The Multiracial Category Movement originated in the 1980s when parents [*pg 1522] of biracial children began to challenge identification criteria on school data forms.155 By the 1990s, multiracial category advocates had shifted most of their energy to a campaign to secure the addition of a multiracial category on decennial census forms for the year 2000.156 Their efforts were ultimately unsuccessful.157 The debate concerning racial categories, however, extends well beyond census classifications. Although it is difficult to reduce such a controversial and complex topic to a few words, multiracial category proponents appear to believe that the category will: (1) challenge the use of racial categorization by forcing society to acknowledge that race is too fluid to monitor in an increasingly diverse society;158 (2) promote racial harmony by identifying a group that is capable of bridging the gap between Blacks and Whites;159 and (3) allow mixed-race persons to self-identify and to acknowledge all aspects of their racial heritages.160 Al- [*pg 1523] though one can understand the appeal of and the potential merit to these claims, proponents fail to engage sufficiently the complex history and present reality of colorism.161 The first argument — that a multiracial category will eliminate racial classification altogether and move society beyond racial divisions — is debatable. The adoption of a multiracial category is equally [*pg 1524] likely to contribute to the proliferation of racial categories rather than to their elimination. Even assuming, arguendo, that a multiracial category will cause society to recognize that race is too fluid to monitor, this claim assumes that along with racial classifications, discrimination will also disappear.162 But, one event need not follow the other. The fact that racial labels may no longer be handy does not mean that discrimination will disappear. Rather, the virus of discrimination may simply mutate or find another host. Because skin color has been used historically as a basis for subordination in this country, skin color may provide an alternative site. That is, in the future, skin color differences may increasingly perform the role played by racial categories today. In this new social context, multiracial individuals and other persons of color will still be subject to discrimination on the basis of skin color to the extent that their skin is too dark or too light. The second argument — that a multiracial category will produce an identifiable class of people who will facilitate interracial communications between Blacks and Whites — sounds like a modern-day appeal for a buffer class (a class distinguishable by its lighter skin tone). In the United States, however, buffer classes have not historically acted as catalysts for interracial harmony. Rather, they have served to increase the status of those in the middle (the buffer class) without fundamentally challenging the status quo for those on the top and bottom.163 In Brazil and Latin American countries where buffer classes have existed historically, the same dynamic has occurred.164 Thus, while tending to improve the lot of some, buffer categories fail to challenge existing racial and color hierarchies. In future discussions, proponents of a multiracial category must come forth with evidence that history will not repeat itself in the current context. In short, they must explain how a multiracial category will avoid simply reinforcing the existing racial and color hierarchy. [*pg 1525] The third argument — that a multiracial category will allow mixed-race persons to self-identify165 and to acknowledge the totality of their racial heritages — is intuitively appealing. It seems that a goal of multiracial category proponents is to challenge the continued application of the one-drop rule (e.g., the notion that a person is Black if she has a trace of blackness in her physical appearance or in her ancestry). Again, this goal seems fair, neutral, and perhaps even laudable. However, as I explain below, an unintended consequence or negative externality of this objective must be considered: mixed-racial heritage and skin color may operate to elevate the status of lighter-skinned multiracial individuals, while doing nothing to alleviate the subordination of those who are darker or to change the idea that Black is undesirable. Briefly, in a sociopolitical context in which one drop of Black blood renders one Black, the desire not to choose one aspect of one’s racial heritage over another in effect means that multiracials are seeking to acknowledge their White racial heritage. Although this desire appears neutral or egalitarian, it assumes a symmetry in the value placed on White and Black ancestry that does not exist. As Professor Hernández accurately observes:
[C]laims to different racial ancestries are not socially symmetrical in effect. That is to say, what the parents of biracial children may fail to [*pg 1526] perceive is that while the political acknowledgment of White racial ancestry can be beneficial to the individual child, it also unfortunately reinforces societal White supremacy when society places greater value on White ancestral connections than on non-White connections. “Whiteness is an aspect of racial identity surely, but it is much more; it remains a concept based on relations of power, a social construct predicated on white dominance and Black subordination.” Thus, the symmetrical identity demand can also function as a claim to having biracial children inherit all of the privileges of White status, which White parents logically would like to extend to their children as protection from racism against non-Whites.166
Hence, in a social context where whiteness or lightness is valued more highly than blackness or darkness, what appears to be a quest for equivalency, can, in effect, result in an escape from blackness.167 Because their mixed racial heritage or lighter skin will enable mixed-race persons to access the privileges of whiteness or lightness, their strategy has the potential to reinforce or further entrench colorism.168 In conclusion, the dynamic propelling the MCM is strikingly similar to that which existed in parts of the Lower South in the seventeenth and eighteenth centuries at the height of racial mixing in the United States. Wealthy or upper-middle-class biracials (or their parents) are in effect creating a buffer class between White and Black. To the extent that these multiracials are Black-White biracials, one of the most readily identifiable characteristics of this class is its lighter skin tone. Because this characteristic is more highly valued in the United States than darker skin tone, it may afford them the opportunity to obtain better positions in the socioeconomic hierarchy. Unless proponents of a multiracial category address some of the difficult issues raised by colorism, the only real difference between 1800 and 2000 may be that the current category is labeled “multiracial” instead [*pg 1527] of “mulatto.” The negative consequences, however, will likely be the same. Those on the bottom will stay on the bottom. Those on top will remain on top. Only those in the middle will share the illusion of movement by virtue of their skin color. Unless antidiscrimination advocates realize that the evil is not racial classifications, or even skin color differences, but, rather, a system that attaches meaning to these variables in order to maintain existing inequality, true progress will not occur.169
C. The Social Psychology of Contemporary Black-White Colorism
As demonstrated above in Section B, skin color still matters in the United States. For many persons within both White and Black communities, light- to medium-brown skin is associated with intelligence, refinement, prosperity, and femininity.170 Darkness is associated with toughness, meanness, indigence, criminality, and masculinity.171 These meanings are historically based. The association between skin color and class can be traced back to the early division between house slaves and field slaves and the fact that, due to the status of their White fathers, some light-skinned slaves were granted greater educational and professional opportuni- [*pg 1528] ties.172 The higher socio-economic class of lighter-skinned Blacks may have made them appear less foreign and therefore less threatening to Whites. Their elevated status also may have rendered them more attractive to darker-skinned Blacks. To some extent, class-based distinctions are self-perpetuating because socio-economic advantages are passed down from one generation to another — with classism intensifying the effects of colorism. Skin color, however, functions as more than an indicator of class: a person’s relative lightness or darkness determines whether she can access the benefits associated with a particular class. This phenomenon occurred in the post-Civil War era when elite mulattoes created social and political organizations into which access was granted or denied based upon one’s skin color regardless of one’s actual socio-economic class.173 Thus, persons whose skin was light enough were allowed entry even if they were poor. Conversely, wealthy persons were denied access if their skin was too dark. In these circumstances, skin color itself served as the determinant of status regardless of a person’s actual socio-economic class. The meaning attributed to skin color today does not rest merely upon historical class-based differences between light-skinned Blacks and darker-skinned Blacks — as the darkening of O.J. Simpson’s photo illustrates.174 Although it is hard to prove, contemporary colorism also appears to draw upon concepts of good and evil that pre-date European colonization of North America. In the European tradition, “whiteness” or “fairness” is associated with purity and innocence, and “blackness” is associated with dirt, evil, and death.175 Con- [*pg 1529] temporary beliefs that lighter-skinned persons are more attractive than darker-skinned individuals, or that darker-skinned persons are more evil or criminal than their lighter counterparts, may relate to these traditions.176 Finally, because skin color is often an indicator of mixed-racial heritage, contemporary colorism may draw upon racism and nineteenth-century ideologies of race.177 Here, the argument is that Blacks with lighter skin tones are superior to Blacks with darker skin tones because of the former’s White ancestry; lighter-skinned Blacks, however, are nonetheless inferior to Whites because their heritage is not completely White. Thus, a White person might view a lighter-skinned [*pg 1530] Black as preferable to a darker-skinned Black because of her allegedly closer connection to Whiteness. The infusion of White blood may lead Whites to conclude that lighter-skinned Blacks are more intelligent and capable than darker Blacks.178 To the extent that people of color have been socialized to accept these racist norms, they may also unconsciously view lighter-skinned Blacks as being racially superior.179 This argument also works in the reverse. A Black person might view a light-skinned person as inferior to darker Blacks because of her mixed ancestry. Thus, instead of elevating her worth, her White ancestry would diminish her value within the Black community.180 This response may be a defense against the dominant tendency to prize White racial heritage; that is, it may be an effort to counter the stigma of not being White enough. It also may be a form of reverse racism; that is, a manifestation of the belief that visibly unmixed Blacks are culturally and intellectually superior. In sum, a variety of sociological and psychological factors converge to give skin color the meaning it has today. Colorism may arise from, among other things, racist ideology, class-based assumptions, the symbolism of the colors white and black, or from a combination of these things. Often, it is impossible to sort out which factor may be at work in any given situation. Understanding the complexity of colorism, however, is essential if we are to comprehend our increasingly diverse society. This knowledge may help us to understand why the skin of a famous Black pop music superstar has increasingly lightened over time,181 why former President George Bush used a dark-skinned Black male criminal in television ads designed to challenge his oppo- [*pg 1531] nent’s “toughness” on crime,182 why Time magazine darkened its cover photo of O.J. Simpson during his criminal trial,183 why the sale of skin-bleaching products is a multi-million dollar industry within the United States,184 and why there is an earnings gap between lighter- and darker-skinned Blacks.185 When considered in historical context, these social facts strongly suggest that colorism remains a real issue, and one which requires recognition by United States courts.
III. COLOR IN CONTEMPORARY LAW
As Part II demonstrates, color has historically played an important role in determining the social, political, and economic status of Black Americans. Unfortunately, analysis of the case law reveals that while colorism continues to operate in the United States, courts are confused about how to handle color discrimination claims. Not surprisingly, the resulting case law contains incomplete analyses and inconsistent outcomes. That law is, therefore, of limited utility to anyone desiring to engage seriously the question of color. This Part clarifies this area of the law. Section A probes the statutory basis for color claims. Section B examines the substantive content of those claims. Section C explores the increasing legal significance of color in light of shifting understandings of race and the growing presence of persons claiming mixed-racial ancestry. Finally, Section D analyzes the ways in which colorism may impede contemporary efforts to eliminate discrimination. [*pg 1532]
A. Statutory Support for Color Claims
Courts have examined the question of color most extensively in the area of employment discrimination law.186 Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981 of the Civil Rights Act of 1866 are of particular relevance.187 Title VII prohibits discrimination in employment on the basis of race, color, religion, sex, and national origin.188 Section 1981 provides, in part, that “[a]ll persons . . . shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.”189 Section 1981 contains neither the word “race” nor the word “color.” The Supreme Court has held, however, that § 1981 affords a remedy against discrimination on the basis of race in both private and public employment.190 Courts should readily recognize color claims under Title VII given that the statute expressly includes color as a protected category.191 Absent strong evidence to negate this statutory [*pg 1533] language,192 a textual approach to statutory interpretation favors recognition of these claims.193 This conclusion is buttressed by evidence in Title VII’s legislative history suggesting that Congress intended to provide protection against “shade” discrimination.194 Although § 1981 does not use the word “color,”195 the 1866 Act does reference “white citizens.” Use of this color-coded terminology [*pg 1534] implies that the statute extends to color claims.196 This language also demonstrates the convertibility of race and color to the enacting Congress. In addition, other important texts adopted during the same time period (e.g., the Fifteenth Amendment197) explicitly reference color separately from race. This again suggests that at the time § 1981 was enacted, race and color were viewed as overlapping, but nonetheless distinct, phenomena. The Supreme Court has stated that the phrase “as enjoyed by white citizens” clarifies Congress’s concern with the racial character of the rights protected under § 1981,198 but it has never directly addressed the issue of color. The Court therefore has not excluded color from § 1981’s protective ambit. Again, the language of § 1981 suggests that this outcome would be incorrect. Moreover, as the Supreme Court has noted, “[w]hen terms used in a statute are undefined, we give them their ordinary meaning.”199 Today, as in 1866, “white” can refer to both a racial category and to skin color.200 [*pg 1535] The legislative history of § 1981 lends additional support to the conclusion that § 1981 provides a remedy for color as well as race discrimination. When originally proposed in Congress, § 1981 included specific language prohibiting discrimination on the basis of race and color. Initial versions of the bill stated, in part: “there shall be no discrimination in civil rights or immunities among the inhabitants of any state or Territory of the United States on account of race, color, or previous condition of slavery . . . .”201 Although the House ultimately struck this language from the statute, the debates make clear that the provision was removed because of the breadth of the terms “civil rights and immunities” and not because of a desire to exclude protection on the basis of race or color.202 Just as the omission of the word “race” from the statute does not preclude bringing race claims under § 1981, the omission of the word “color” should not preclude the bringing of color claims.203 Finally, even if one concludes that Congress used the word “white” only to reference a racial category, this fact alone should not prevent the inclusion of color claims under § 1981, given that color now plays a role analogous to the one that race played for the drafters. As Professor William Eskridge has argued, statutory texts are not static.204 Their meanings are not fixed at the moment of enactment. [*pg 1536] Rather, statutes must be interpreted dynamically, in light of their present as well as their historical contexts,205 especially when the statute at issue is old and written in general terms.206 Because colorism involves many of the same stereotypes and assumptions that result in discrimination on the basis of race, it provokes the same sort of invidious treatment that Congress sought to eliminate in 1866 when § 1981 was enacted.207 The mere fact that the trigger for discrimination is skin color and not race should not bar coverage of these claims under § 1981. Setting aside narrow questions of statutory interpretation, some observers may raise more general policy objections to legal recognition of claims based on skin color. These observers will question whether skin color is different from any number of other legally permissible factors upon which people make distinctions (e.g., eye color, hair color, height, etc.), and will assert that recognition of discrimination on the basis of skin color will, in effect, spark a downward movement on the proverbial slippery slope.208 It seems to me that the most compelling difference between skin color and these other factors is the pervasive and well-documented history of discrimination on the basis of skin color in this country. This historical practice was of sufficient magnitude and consistency that the word “color” was explicitly included, separately from the word “race,” in both the Fif- [*pg 1537] teenth Amendment to the Constitution and in Title VII of the Civil Rights Act of 1964. In addition, skin color (like race) has been and continues to be used as a basis for identifying underrepresented discrete and insular minorities within racial classifications.209 Skin color also provokes many of the same invidious stereotypes and behaviors that the law seeks to proscribe regarding race. For these reasons, discrimination on the basis of skin color is more like discrimination on the basis of race than discrimination on the basis of eye color, hair color, or height. Therefore, like race, discrimination on the basis of skin color merits protection.
B. Substantive Content of Color Claims
Because Title VII and § 1981 should be read to cover color claims, the primary focus must shift to determining with greater precision the substantive content of these claims. Of course, the most straightforward approach to this question is to conclude that color is equivalent to race or is a proxy for national origin or some other protected classification. Not surprisingly, litigants and the courts have often treated color synonymously with race without attempting to determine if and where these claims differ.210 Porter v. Illinois [*pg 1538] Department of Children and Family Services211 illustrates this point. The plaintiff, a light-skinned Black male, filed a claim under Title VII212 alleging discrimination on the basis of both race and color. Neither the plaintiff nor the court made any attempt to distinguish between the two forms of discrimination. Rather, they both used the terms interchangeably.213 This approach is defensible if one accepts that race and color sometimes overlap. The problem, however, is that this approach renders color claims superfluous or void of independent meaning. Color discrimination becomes nothing more than race discrimination or national origin discrimination. This makes little sense in the Title VII context given the language of the statute. As one court has aptly noted:
[Because] the statutes and case law repeatedly and distinctly refer to race and color [t]his court is left with no choice but to conclude, when Congress and the Supreme Court refer to race and color in the same phrase, that “race” is to mean “race”, and “color” is to mean “color”. To hold otherwise would mean that Congress and the Supreme Court have either mistakenly or purposefully overlooked an obvious redundancy.214
If a color claim is not solely a proxy for some other form of discrimination, then what exactly does it encompass? Analysis of the case law reveals that, although courts have considered whether color claims are separately cognizable under Title VII and § 1981, few have afforded this question much attention in their written opinions. Most courts merely state that color claims either are or are not permitted without offering any explanation for their conclusions, and without delving too deeply into what makes a color claim analytically distinct.215 [*pg 1539] Walker v. Internal Revenue Service216 is a notable exception. In Walker, the United States District Court for the Northern District of Georgia held that an allegation of discrimination based on skin color states a cognizable claim under Title VII.217 There, a light-skinned Black employee alleged that her supervisor, a dark-skinned Black, discriminated against her because of her lighter skin tone.218 The court concluded that the plaintiff’s claim was not barred because the plaintiff and her supervisor were of the same race. The court observed that, after the United States Supreme Court’s 1987 decision in Saint Francis College v. Al-Khazraji,219 “it is not even required that a victim of discrimination be of a distinctive physiognomical sub-grouping [from the perpetrator of the discrimination].”220 Thus, the court was [*pg 1540] willing to recognize a color discrimination claim under Title VII when the plaintiff and the defendant were of the same race.221 In allowing the action to proceed, the court also rejected the defendant’s assertion that “color” has generally been interpreted to mean the same thing as “race.”222 The court stated that both the statute and case law “repeatedly and distinctly refer to race and color.”223 In attempting to distinguish color claims from race claims, the court explained that, in some situations, the most practical way to bring a Title VII suit may be on the basis of color as opposed to race. Unfortunately, it is not completely clear what the court meant by this language. Dissecting the opinion carefully, it appears that the court believed: (1) there are differences among individuals within racial categories and discrimination may occur on the basis of these differences; and (2) the mixture of races and ancestral national origins may complicate the analysis by making it impossible to delineate racial categories or to determine who fits within what racial group. In making the first point, the court turned again to Saint Francis and relied upon the Supreme Court’s observation that Congress intended § 1981 to apply to discrimination against sub-groups within the Caucasian race, including Finns, gypsies, Basques, Hebrews, Swedes, Norwegians, Germans, Greeks, Italians, Spaniards, Mongolians, Russians, Hungarians, Irish, and French.224 The court thus concluded that if [*pg 1541] Congress intended to protect sub-groups within the Caucasian race, it would be anomalous to believe that it did not intend to protect subgroups within the Black race. The court observed: “It would take an ethnocentric and naive world view to suggest that we can divide Caucasians into many subgroups but somehow all Blacks are part of the same subgroup. There are sharp and distinctive contrasts amongst native Black African peoples (sub-Saharan) both in color and in physical characteristics.”225 Walker is critically important because it is the first case in which a court recognized that Title VII provides a remedy for intraracial color discrimination. In addition, the opinion offers the most detailed judicial analysis of skin color discrimination to date. Indeed, other courts have shown a greater willingness to recognize color discrimination claims under Title VII after Walker.226 As I explain below, however, the Walker court’s analysis is incomplete. For the moment, I shall focus on the court’s observation that discrimination may occur on the basis of differences within racial groups. I shall return to the complexities raised by mixed racial heritage in Section III.C. As an initial matter, the court in Walker is correct in concluding that the mere fact that a plaintiff and defendant are of the same race should not legally bar the bringing of an intraracial color claim.227 As Saint Francis makes clear, it is not legally impossible for a Black plaintiff to prove that she was the victim of discrimination by a Black defendant. The more subtle question raised by Walker concerns whether there should be a factual presumption that a Black defendant did not discriminate because the plaintiff is also Black. Such a presumption is insupportable. It is well-documented that individuals within protected classifications are not immune from the forces of socialization at work in the larger society.228 These persons may incorporate the dominant [*pg 1542] society’s views and may very well unconsciously act upon those views in ways that are harmful to members of their own groups. Thus, women discriminate against women (e.g., on the basis of race). Men also discriminate against men (e.g., on the basis of masculinity or femininity). And, as the historical overview in Part II demonstrates, Blacks discriminate against Blacks (e.g., on the basis of skin color). As we know, some free mulattoes owned slaves;229 some light-skinned slaves believed they were intellectually and socially superior to darker slaves;230 and some light-skinned persons, favored by the White majority, expressed hostility towards their darker-skinned Black brethren and sought to disassociate themselves from darker Blacks in order to protect their favored status.231 Although conventional analysis relying upon cases in other factual contexts could have been employed in Walker to destroy any factual presumption that discrimination does not occur between individuals of the same race, an understanding of colorism assists in this effort by explaining how such discrimination may occur between Blacks of varying skin tones. In short, it encourages courts to look beyond the broad category of race and to investigate the ways in which more subtle forms of discrimination occur. Unfortunately for analytical purposes, the Walker opinion dealt only with intraracial color discrimination. The case involved a member of one race discriminating against a member of the same race on the basis of skin color.232 Because of this factual context, the court had no cause to examine the question of interracial color discrimination (a case where members of one race distinguish between members of a different race on the basis of skin color). Yet as Part II illustrates, interracial color discrimination exists. The question thus arises: should courts treat interracial claims differently from intraracial claims? Should the fact that a White person awards benefits to a light-skinned Black individual create a factual presumption that she has not discriminated against a darker-skinned Black person? As I explain below, the answer is no. Fundamentally, interracial claims are no different from intraracial claims. As with intraracial claims, courts must not overlook inter- [*pg 1543] racial discrimination by proceeding blithely on the assumption that a White person cannot be racist if she awards benefits to someone within the same race as the plaintiff. We can readily comprehend the fallacy of this assumption when we acknowledge that a White person might distinguish between a Black person who has recently emigrated from Haiti and harbors an accompanying accent, and a Black person who was born in the United States. In that situation, national origin supplies the basis for the intragroup comparison.233 Color operates in a similar fashion: lighter skin color, like the absence of a foreign accent, brings the person receiving favorable treatment closer to the preferred ideal — with skin color, that ideal is whiteness. Again, the central point is that one cannot allow a focus on broad racial categories to obscure the fact that racial groups are not monolithic and that nuanced forms of intragroup discrimination, like colorism, exist. Finally, Walker fails to articulate clearly the essence of a color claim and how it differs from a race claim. The key point that needs to be understood is that colorism and racism are distinct phenomena that sometime overlap. At times, racism will occur regardless of a person’s color. Thus, a person whose skin is White, but whose ancestors are known to be Black, may be classified as Black and subject to racist acts on that basis. At times, colorism will operate independently of race. Thus, two individuals within the same racial classification may be subject to different treatment because of their varying skin tones. In that situation, the basis for distinction is not their placement in a particular racial category but rather their color within that category. Of course, the meaning afforded color may result from racist beliefs; that is to say, being light or dark may have meaning because being light or dark is associated with being of or closer to a certain racial ideal (i.e., White). However, the meaning afforded color may result from factors unrelated to racist beliefs. Colorism may stem from historically based assumptions about the correlation between color and socioeconomic class, color and beauty, color and intellect, or color and criminality, among other things. Finally, at times colorism and racism will overlap; that is, a person will be treated differently because [*pg 1544] of assumptions about both her race and her color. Thus, a Black woman with chocolate brown skin may be subject to both racism and colorism simultaneously. In sum, although they sometimes overlap, color claims are analytically different from race claims. The separation of individuals into racial categories and subsequent discrimination on that basis is, in essence, racism. The negative treatment of individuals on the basis of skin color is colorism. The danger is that if courts focus solely on race, they may overlook discrimination based on skin color because it may be difficult to believe that a person who hires Blacks will engage in discrimination against other Blacks, or that a person who is Black would discriminate against another Black person. If, however, courts understand colorism, then they are more likely to perceive the intricate ways in which people discriminate even within racial categories.
C. Race, Color, Mixed Racial Identity and Employment Discrimination Law
My old man’s a white old man
And my old mother’s black.
If ever I cursed my white old man
I take my curses back.
If ever I cursed my black old mother
And wished she were in hell,
I’m sorry for that evil wish
And now I wish her well.
My old man died in a fine big house.
My ma died in a shack.
I wonder where I’m gonna die,
Being neither white nor black?
— Langston Hughes234
One of the more interesting aspects of current analyses of color is the suggestion that the presence of persons of mixed racial heritage or mixed ancestry may complicate matters in ways that render reliance upon race problematic but reliance upon color helpful.235 Sadly, [*pg 1545] courts have made this observation in passing without further explanation or analysis. The argument, however, appears to be based on two insights: (1) the more the races mix, the more difficult it becomes to place individuals within specific racial categories; and (2) discrimination may nonetheless occur on the basis of skin color. These observations are of immense contemporary significance as the rate of interracial marriage increases,236 and as questions surface concerning what race is and who belongs in what racial category.237 If, as many argue, differentiating among racial groups is becoming more complicated,238 then it is important to consider both whether existing legal frameworks are in fact sufficient to redress claims brought by individuals who are neither visibly Black nor visibly White, and whether permitting claims based upon skin color will improve matters. To conceptualize this analysis, assume that Alex, who is Black, produces a child with Beth, who is White. The child, Carol, resembles [*pg 1546] Vanessa Williams:239 she is fair-skinned, with slightly curly brown hair, and hazel eyes. As Carol navigates the world, she may be viewed as either Black or White, as both Black and White, as neither Black nor White but something else, or as being of indeterminate racial ancestry. The purpose of this section is to examine, within the context of employment discrimination law, how discrimination against Carol could be conceptualized as race discrimination, color discrimination, or both, and to demonstrate how these analyses are related. 1. Analytical Frameworks Under Title VII and Section 1981. Courts have developed two analytical frameworks for individual240 employment discrimination claims under Title VII and § 1981:241 [*pg 1547] direct evidence cases and inferential cases. In direct evidence cases, a plaintiff must come forth with (1) a “smoking gun,” that is, direct evidence that the defendant acted on the basis of unlawful criteria;242 or (2) circumstantial evidence of sufficient quality to persuade the factfinder that the defendant, more likely than not, considered an unlawful factor when making the employment decision in question.243 If the plaintiff passes this threshold, the burden shifts to the defendant either to negate the plaintiff’s contentions or to justify its action with an acceptable defense.
Ann
