A house divided: The invisibility of the multiracial family

Harvard Civil Rights-Civil Liberties Law Review

Volumn 44, Issue 1, 2009, Pages 231-253

  Onwuachi Willig, Angela ^a   Willig Onwuachi, Jacob ^b  

^a Department of Law ^*

^b GRINNELL COLLEGE   (United States)

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EID: 61849092622     PISSN: 00178039     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (118)

1. Peggy Mcintosh, White Privilege: Unpacking the Invisible Knapsack, INDEP. SCHOOL, Winter 1990, excerpt available at http://www.case.edu/president/aaction/UnpackingTheKnap sack.pdf.
2. Id.
3. Id.
4. We prefer to use the term "blacks" to the term "African Americans" because the term "blacks" is more inclusive. See Why "Black" and Not "African-American," Adan Gonzalez, 3 J. BLACKS HIGHER EDUC, 18, 18-19 (1994) (explaining why the term "black" is a more inclusive term than "African-American"). Additionally, we find that "[i]t is more convenient to invoke the terminological differentiation between black and white than say, between African-American and Northern European-American, which would be necessary to maintain semantic symmetry between the two typologies."
5. Alex M. Johnson, Jr., Defending the Use of Quotas in Affirmative Action: Attacking Racism in the Nineties, 1992 U. III. L. REV. 1043, 1044 n.4 (1992).
6. 388 U.S. 1 (1967).
7. Id.;
8. see also infra Part II.B. Almost twenty years before Loving, the California Supreme Court struck down California's anti-miscegenation statute in Perez v. Sharp, 198 P.2d 17 (Cal. 1948),
9. See R.A. Lenhardt, Beyond Analogy: Perez v. Sharp, Antimiscegenation Law, and the Fight for Same-Sex Marriage, 96 CAL. L. REV. 839, 847 (2008) (using Perez to argue that "identity-based restrictions that prohibit someone from marrying the 'person of [her] choice' inflict significant citizenship harm").
10. See Mary Jo Wiggins, Race, Class, and Suburbia: The Modern Black Suburb as a "Race-Making Situation," 35 U. MICH. J.L. REFORM 749, 797-98 (2001-2002) (detailing how professionally dressed black people are routinely followed in stores);
11. James Ragland, Black Shoppers Feel They're Unwelcome: Oprah Isn't the Only One Complaining about Stores, Study Said, DALLAS MORNING NEWS, Aug. 7, 2005, at 7E. ("The Oprah incident [in which billionaire Oprah Winfrey was prevented from entering an Hermes store in Paris, allegedly because the store had been having problems with North African women] renewed talk about racial profiling in stores. The study found that 56 percent of black respondents sensed that store clerks or security guards were watching them more closely than other customers. By comparison, 40 percent of Hispanic and 17 percent of white respondents say the same thing.").
12. See CAMILLE O. COSBY, TELEVISION'S IMAGEABLE INFLUENCES 36-37 (Wellington & Chiu, eds. 1994) (describing images of black people in the media as the "Savage African, Happy slave, Devoted servant, Corrupt politician, Irresponsible citizen, Petty thief, Social delinquent, Vicious criminal, Sexual superman, Unhappy non-white, Natural-born cook, Perfect entertainer, Superstitious churchgoer, Chicken and watermelon eater, Razor and knife 'toter', Uninhibited expressionist, Mentally inferior [and] Natural-born- musician")
13. (quoting Nagueyalti Warren, From Uncle Tom to Cliff Huxtable, Aunt Jemima to Aunt Nell: Images of Blacks in Film and the Television Industry, in IMAGES OF BLACKS IN AMERICAN CULTURE: A REFERENCE GUIDE TO INFORMATION SOURCES, 51, 51-52, (Jessie Carney Smith ed., 1988));
14. Patricia M. Worthy, Diversity and Minority Stereotyping in the Television Media: The Unsettled First Amendment Issue, 18 HASTINGS COMM. & ENT. LJ. 509, 536 (1995-1996) ("Research confirms that the news coverage relating to African-Americans is consistently negative, focusing solely on crime or other unpleasant characteristics.");
15. see also Leonard M. Baynes, Racial Stereotypes, Broadcast Corporations, and the Business Judgment Rule, 37 U. RICH. L. REV. 819, 893-96 (2003) (discussing the negative effects of racial stereotypes in the media, especially on children);
16. Sherri Burr, Television and Societal Effects: An Analysis of Media Images of African-Americans in Historical Context, 4 J. GENDER RACE & JUST. 159 (2001) (discussing effects of images of black people in the media since the 1950s).
17. See Lenhardt, supra note 6, at 882 ("Just as important as this setting of social norms, however, is the extent to which state regulations have also served over time to reproduce and police identity norms in the marriage context.");
18. Melissa Murray, The Space Between: The Intersection of Criminal Law and Family Law 94 IOWA L. REV. (forthcoming 2009) (manuscript at 31-48, on file with the authors) (analyzing how criminal law and family law work together to reinforce normative ideals of family).
19. This Article addresses statutes that are assumed to adequately protect interracial, heterosexual couples in a post-Z.ovmg era, but that do not do so because they create no space for such couples in their language. It is true that many of the privileges that attach to monoracial, heterosexual couples also do not attach to monoracial, same-sex couples; however, because anti-discrimination law generally excludes homosexual individuals from protection from discrimination based on sexual orientation and because there is prevalent, open prejudice against same-sex couples in our society, the statutory language and law discussed herein is generally not seen as protective of same-sex couples. In other words, the hole in anti-discrimination law for same-sex couples is widely exposed for all who are willing to acknowledge it, while it is not so easily exposed for interracial, heterosexual couples. Our hope is to expose this hole. See Darren Lenard Hutchinson, Identity Crisis: "Intersectionality," "Multidimensionality," and the Development of an Adequate Theory of Subordination, 6 MICH. J. RACE & L. 285, 303 (2001) ("[B]ecause sexual orientation remains an unprotected category in federal statutory and constitutional civil rights law, discriminators may willingly concede sexual orientation discrimination when some evidence of discriminatory action exists, but deny racial or gender discrimination."). Still, as this Article seeks to reveal about heterosexual couples, the disadvantages that attach to same-sex couples in our society can become further complicated by other identity categories, such as interraciality.
20. See Richard H. Pildes & Richard G. Niemi, Expressive Harms, "Bizarre Districts, " and Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno, 92 MICH. L. REV. 483, 506-07 (1993) (defining expressive harms as harms that "result[ ] from the ideas or attitudes expressed through a governmental action, rather than from the more tangible or material consequences the action brings about");
21. see also Guy-Uriel E. Charles, Constitutional Pluralism and Democratic Politics: Reflections on the Interpretative Approach of Baker v. Carr, 80 N.C. L. REV. 1103, 1107 n.19 (2002) (asserting that "the expressive harms approach asks the Court to interpret the social meaning of state action and to incorporate social meaning into constitutional interpretation").
22. Christopher A. Bracey, Dignity in Race Jurisprudence, 1 U. PA. J. CONST. L. 669, 676 (2005) (arguing "that dignity is (and always has been) a central area of concern in the struggle for racial justice, and that current Supreme Court jurisprudence indulges in delusional and counterfeit thinking when it chooses to undervalue, distort, or evade entirely core dignitary concerns in the context of racial disputes").
23. See infra Part II.B for a discussion on intersectionality.
24. See McIntosh, supra note 1 ("I began to count the ways in which I enjoy unearned skin privilege and have been conditioned into oblivion about its existence. My schooling gave me no training in seeing myself as an oppressor, as an unfairly advantaged person, or as a participant in a damaged culture.");
25. see also Stephanie M. Wildman & Adrienne D. Davis, Language and Silence: Making Systems of Privilege Visible, 35 SANTA CLARA L. REV. 881, 890 (1995) ("First, the characteristics of the privileged group define the societal norm, often benefiting those in the privileged group. Second, privileged group members can rely on their privilege and avoid objecting to oppression. Both conflicting privilege with the societal norm and the implicit choice to ignore oppression mean that privilege is rarely seen by the holder of the privilege.").
26. This list closely tracks portions of McIntosh's list in her paper White Privilege: Unpacking the Invisible Knapsack, supra note 1 and text accompanying note 3.
27. See McIntosh, supra note 1 ;
28. see also Camille A. Nelson, Lovin ' the Man: Examining the Legal Nexus of Irony, Hypocrisy, and Curiosity, 2007 WIS. L. REV. 543, 549 ("Like other racialized couples, my partner and I do not have the luxury of simply venturing where we might-we often reflect upon whether certain venues will be welcoming, comfortable, or safe.").
29. Loving v. Virginia, 388 U.S. 1, 3 (1967).
30. Id. at 2-3.
31. Id. at 2.
32. Id. at 2-3.
33. Id. at 2, 12.
34. Id. at 9-12.
35. Id. at 11-12.
36. Id. at 12.
37. See, e.g., Robert A. Destro, Introduction to Symposium, Law and the Politics of Marriage: Loving After 30 Years, 47 CATH. U. L. REV. 1207, 1219-21 (1998) (describing Loving as an important case on race and eugenics);
38. Reginald Oh, Interracial Marriage in the Shadow of Jim Crow: Racial Segregation as a System of Racial and Gender Subordination, 39 U.C. DAVIS L. REV. 1321, 1323, 1333 (2006) (arguing that "Loving is as much a case about racial segregation in public schools as Brown [v. Board of Education] is a case about prohibiting interracial marriages" in that "[r]acial segregation and antimiscegenation practices were ultimately designed to further the same goal: to preserve white racial purity and maintain a social system of white supremacy");
39. Michael J. Perry, Modern Equal Protection: A Conceptualization and Appraisal, 79 COLUM. L. REV. 1023, 1032 (1979) (discussing how both Brown and Loving reflect the principle that "no person is by virtue of race morally inferior to another").
40. See William N. Eskridge, Jr. & Sheila Rose Foster, Remark, Discussion of Same-Sex Marriage, 1 TEMP. POL. & CIV. RTS. L. REV. 329, 333 (1998) ("People say, 'you can't have same-sex marriage,' and you remind them to think about thirty or forty years ago. Forty years ago in West Virginia, where I grew up, it was UNTHINKABLE for a different-race couple to marry. . . . The point to be made from that is the 'constructedness' of marriage, and lines for cordoning people off within marriage.");
41. see also Angela Onwuachi-Willig, Undercover Other, 94 CAL. L. REV. 873, 905-06 (2006) (arguing in favor of analogies of the ban on interracial marriages prior to Loving to the ban on same-sex unions, as the former was rooted in white supremacy and the latter is rooted in heterosupremacy and male supremacy).
42. Randall Kennedy, How Are We Doing with Loving?: Race, Law, and Intermarriage, 11 B.U. L. REV. 815, 819 (1997) ("In my view, black-white intermarriage is not simply something that should be tolerated-it is a mode of partnership that should be applauded and encouraged.").
43. See Kimberlé Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 STAN. L. REV. 1241, 1242-43 (1991) (explaining that women of color are at the intersection of race and gender oppression).
44. See also Kimberlé Williams Crenshaw, Transcript, Panel Presentation on Cultural Battery, Speaker; Kimberlé Williams Crenshaw, 25 U. TOL. L. REV. 891, 892 (1995) ("Intersectionality generally functions as a metaphor for capturing the different dimensions of race and gender as they converge in the lives of women of color.");
45. see also Devon W. Carbado & Mitu Gulati, The Law and Economics of Critical Race Theory, 112 YALE L.J. 1757, 1775 (2003) (asserting that intersectionality is a "concept that conveys at least the following two ideas: (1) that our identities are intersectional-that is, raced, gendered, sexually oriented, etc.-and (2) that our vulnerability to discrimination is a function of our specific intersectional identities").
46. Crenshaw, Mapping the Margins at 1242-43;
47. see also U.S. EEOC, EEOC COMPLIANCE MANUAL, § 15, at 15-8 to -9 (2006), available at http://eeoc.gov/policy/ docs/race-color.pdf (discussing intersectional discrimination and noting that "Title VII [of the Civil Rights Act of 1964] prohibits discrimination not just because of one protected trait (e.g., race), but also because of the intersection of two or more protected bases (e.g., race and sex)").
48. See, e.g., Hutchinson, supra note 10, at 302-16;
49. see also Frank Rudy Cooper, Against Bipolar Black Masculinity: Intersectionality, Assimilation, Identity Performance, and Hierarchy, 39 U.C. DAVIS L. REV. 853, 860-74 (2006) (applying intersectionality theory to hetero-sexual black men);
50. Emily M.S. Houh, Toward Praxis, 39 U.C. DAVIS L. REV. 905, 924-38 (2006) (operationalizing anti-essentialism and intersectionality in a sexual harassment hypothetical);
51. Catherine Smith, Queer as Black Folk?, 2007 WIS. L. REV. 379, 381 n.4 ("The experiences for black heterosexual women in interracial relationships are also different than those of black lesbians and black men in interracial relationships.");
52. Gowri Ramachandran, Intersectionality as "Catch-22": Why Identity Performance Demands Are Neither Harmless Nor Reasonable, 69 ALB. L. REV. 299, 301 (2005) (discussing the double bind of "intersectionals," whom she defines as "persons who are members of more than one 'low-status' category, such as women of color, queer persons of color, or indigent women").
53. See supra notes 14-15 and accompanying text.
54. See generally Adele M. Morrison, Same-Sex Loving: Supporting White Supremacy Through Same-Sex Marriage, 13 MICH. J. RACE & L. 177 (2007) (noting that "mixed-sex interracial couples" are "normative by being mixed-sex but non-normative by being mixed race").
55. See generally Angela Onwuachi-Willig, There's Just One Hitch, Will Smith: Examining Title VII, Race, and Casting Discrimination on the Fortieth Anniversary of Loving v. Virginia, 2007 WIS. L. REV. 319 (analyzing the dearth of black-white interracial couples in film and television as a result of casting discrimination based on perceived audience preferences).
56. Howard M. Metzenbaum Multiethnic Placement Act of 1994, Pub. L. No. 103-382, 108 Stat. 3518 (codified as amended at 42 U.S.C. § 622 (2000)).
57. For a general discussion of the difficulties interracial couples face in the adoption process, see Interracial Couple Say They Were Denied Adoption Because They Had Not Suffered Enough Racism, JET, Aug. 16, 1999, at 23, available at http://findarticles.com/p/articles/mi-m1355/is-11/-96/ ai-55588159.
58. See Angela Onwuachi-Willig, A Beautiful Lie: Exploring Rhinelander v. Rhinelander as a Formative Lesson on Race, Identity, Marriage, and Family, 95 CAL. L. REV. 2393, 2458 (2007);
59. see also RACHEL F. MORAN, INTERRACIAL INTIMACY: THE REGULATION OF RACE AND ROMANCE 155 (2001).
60. Other interracial couples have documented similar experiences. See, e.g., ERICA CHITO CHILDS, NAVIGATING INTERRACIAL BORDERS: BLACK-WHITE COUPLES AND THEIR SOCIAL WORLDS 40 (2005);
61. PAUL C. ROSENBLATT ET AL., MULTIRACIAL COUPLES: BLACK AND WHITE VOICES (1995).
62. See generally Rashmi Goel, From Tainted to Sainted: The View of Interracial Relations as Cultural Evangelism, 2007 WIS. L. REV. 489, 516-17 ("When faced with a mixed-race couple, people seem to ignore or disbelieve activity that-for a same-race couple-would be indicative of a relationship. People often express surprise at the existence of an interracial couple, asking in dumbfounded tones, 'Are you two . . . together?'").
63. See Nelson, supra note 16, at 549 ("Navigation of the public space, versus the private sanctuary, is an issue requiring some deliberation on the part of many interracial couples." (footnote omitted)).
64. Other interracial families have made similar choices. See, e.g., HEATHER M. DALMAGE, TRIPPING ON THE COLOR LINE: BLACK-WHITE MULTIRACIAL FAMILIES IN A RACIALLY DIVIDED WORLD 95 (2000) (asserting that black-white mixed-race families "desire racially mixed neighborhoods because there they can have a sense of safety and comfort and not face repeated acts of border patrolling and racism");
65. Steven R. Holloway et al., Partnering 'Out' and Fitting In: Residential Segregation and the Neighbourhood Contexts of Mixed-Race Households, 11 POPULATION, SPACE & PLACE 299, 319-20 (2005) ("All mixed-race household types are more likely to live in diverse neighbourhood settings than same-race households. . . . [M]ixed-race households tend to experience higher levels of neighbourhood racial diversity than white same-race households, but lower levels than non-white same-race households. Black-white pairings are an exception-they live in more diverse neighbourhoods than the black population in general." (emphasis added)).
66. See Darren Lenard Hutchinson, Ignoring the Sexualization of Race: Heteronormativity, Critical Race Theory and Anti-Racist Politics, 47 BUFF. L. REV. 1, 10 (1999) (discussing multidimensionality, which highlights the "interlocking sources of advantage and disadvantage" that constitute discrimination).
67. Compare Peggie R. Smith, Regulating Paid Household Work: Class, Gender, Race, and Agendas of Reform, 48 AM. U. L. REV. 851, 915-16 (1999) (noting how service work increasingly became synonymous with black women),
68. and Pamela J. Smith, Part II-Romantic Paternalism - The Ties That Bind: Hierarchies of Economic Oppression That Reveal Judicial Disaffinity for Black Women and Men, 3 J. GENDER RACE & JUST. 181, 196-205 (1999) (describing the linkage between the images of black women and service workers),
69. with Richard Delgado, Rodrigo's Corrido: Race, Postcolonial Theory, and U.S. Civil Rights, 60 VAND. L. REV. 1691, 1720 (2007) ("[T]he dominant stereotype of the Asian male is sexless: Nerdy. No body hair. Thick glasses. Good at math and science. Bad at sports.").
70. See also Cynthia Kwei Yung Lee, Beyond Black and White: Racializing Asian Americans in a Society Obsessed with O.J., 6 HASTINGS WOMEN'S LJ. 165, 190 n.120 (1995) (noting that "one common set of racial images portrays the typical Asian American as someone with a heavy accent, who works in a laundry or as a gardener, practices karate, and studies fastidiously").
71. Pub. L. No. 90-284, 82 Stat. 73 (codified as amended at 42 U.S.C. § 3604 (2000)); see infra Part III.A and accompanying footnotes.
72. Civil Rights Act of 1968, tit. 8, Pub. L. No. 90-284 § 804, 82 Stat. 73, 83 (codified as amended at 42 U.S.C. §3604 (2000)). Subsequent amendments have expanded the list of protected characteristics to include sex, familial status, and handicap, but the statute's protection is still limited to the characteristics specifically enumerated in its text. 42 U.S.C. § 3604 (2000).
73. Direct evidence " 'is that evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer's actions.'" Amini v. Oberlin Coll., 440 F.3d 350, 359 (6th Cir. 2006) (quoting Kocak v. Cmty. Health Partners of Ohio, Inc., 400 F.3d 466, 470 (6th Cir. 2005)). But see Martin J. Katz, Unifying Disparate Treatment, 59 HASTINGS L.J. 643, 651 (2008) (arguing that there is currently "a four-way circuit split" over the definition of "direct evidence").
74. Circumstantial evidence is, by definition, not direct evidence. It is evidence that requires an inference to be drawn to reach a certain conclusion. Minhgnoc P. Tran v. The Boeing Co., 190 F. App'x 929, 932 (11th Cir. 2006). As with employment discrimination cases, direct evidence of discriminatory intent is difficult to come by in housing discrimination cases, and plaintiffs in housing discrimination lawsuits generally try to prove their claims through circumstantial evidence.
75. See Martin J. Katz, Reclaiming McDonnell Douglas, 83 NOTRE DAME L. REV. 109, 182 (2007);
76. see also Angela Onwuachi-Willig & Mario L. Barnes, By Any Other Name?: On Being "Regarded As" Black, and Why Title VII Should Apply Even if Lakisha and Jamal Are White, 2005 WIS. L. REV. 1283, 1285 (asserting that employment discrimination has generally become more subtle).
77. 411 U.S. 792(1973).
78. Mencer v. Princeton Square Apartments, 228 F.3d 631, 634 (6th Cir. 2000) (adapting the McDonnell Douglas employment discrimination framework to the housing context);
79. Lexington-Fayette Urban County Human Rights Comm'n v. Metro Mgmt. Inc., No. 2002-CA-001234-MR, 2003 WL 22271567, at *4 (Ky. Ct. App. Oct. 3, 2003) (same).
80. McDonnell Douglas, 411 U.S. at 802;
81. see also Texas Dep'tof Cmty. Affairs v. Burdine, 450 U.S. 248, 254-56 (1981) (noting that the defendant's burden is only one of production, not persuasion).
82. McDonnell Douglas, 411 U.S. at 804;
83. see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000).
84. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993) (holding that a plaintiff who proves pretext in the third stage does not necessarily win because the factfinder may still find that there was no discrimination);
85. Johnson v. Kroger Co., 319 F.3d 858, 866 (6th Cir. 2003) (same).
86. Burdine, 450 U.S. at 253.
87. See, e.g., W. Va. Human Rights Comm'n v. Wilson Estates, Inc., 503 S.E.2d 6, 8-13 (W. Va. Ct. App. 1998) (relying on a state statute identical to the federal Fair Housing Act in all relevant aspects to recognize a housing discrimination claim brought by a white woman who alleged discrimination based on her association with black friends).
88. See Ripp v. Dobbs Houses, Inc., 366 F. Supp. 205, 208-09 (N.D. Ala. 1973). The court held that the challenged action did not constitute discrimination "because of the plaintiffs own race, but rather involved practices that affected only members of a different race. Id. at 208-09 ("The employment practices which plaintiff attacks in his complaint are practices which result in disparate treatment of black employees. Plaintiff avers that he is a white citizen. The employment practices, subject to challenge in this action, have no impact upon [the] plaintiff"). Relying on Ripp, another district court provided the following explanation for its rejection of a similar claim of discrimination: "Neither the language of the statute [Title VIl of the Civil Rights Act of 1964] nor its legislative history supports a cause of action for discrimination against a person because of his relationship to persons of another race." Adams v. Governor's Comm. on Postsecondary Educ, No. C80-624A, 1981 WL 27101 (N.D. Ga. Sept. 3, 1981).
89. These cases, for the most part, are employment discrimination cases. See, e.g., Bryant v. Automatic Data Processing, Inc., 390 N.W.2d 732, 735 (Mich. Ct. App. 1986) ("Indeed, if we were to hold otherwise, then employees subject to such invidious discrimination would have no recourse under state law and an employer could legally engage in such discrimination. We do not believe that the Legislature intended such a result."); Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 892 (11th Cir. 1986) ("Title VII of the 1964 Civil Rights Act provides us with a clear mandate from Congress that no longer will the United States tolerate this form of discrimination. It is, therefore, the duty of the courts to make sure that the Act works, and the intent of Congress is not hampered by a combination of a strict construction of the statute in a battle with semantics.").
90. See, e.g., Holcomb v. lona Coll., 521 F.3d 130, 139 (2d Cir. 2008) (deciding the question for the first time);
91. see also Parr, 791 F.2d at 889-92;
92. Rosenblatt v. Bivona & Cohen, P.C., 946 F. Supp. 298, 300 (S.D.N.Y. 1996);
93. Chacon v. Ochs, 780 F. Supp. 680, 682 (CD. CaI. 1991);
94. Gresham v. Waffle House, Inc., 586 F. Supp. 1442, 1445 (N.D. Ga. 1984). These cases are distinguishable from cases based on a denial of the right of association. In these cases, the plaintiffs argue that they have been denied the benefits of associating with those "who would have been included in the relevant context had they not been excluded because of a racially discriminatory selection process." Palmer v. Occidental Chem. Corp., 356 F.3d 235, 236 (2d Cir. 2004);
95. see also Trafficante v. Metro. Life Ins. Co., 409 U.S. 205 (1972) (recognizing, for the first time, the viability of a claim for denial of interracial association).
96. 946 F. Supp. at 299.
97. Id. at 299-300 (holding that the plaintiff had standing because the weight of cases that acknowledged discrimination by association claims "is persuasive and their logic is convincing").
98. Id. at 300;
99. see also Whitney v. Greater New York Corp. of Seventh-Day Adventists, 401 F. Supp. 1363, 1366 (S.D.N.Y. 1975) ("Manifestly, if Whitney was discharged because, as alleged, the defendant disapproved of a social relationship between a white woman and a black man, the plaintiffs race was as much a factor in the decision to fire her as that of her friend. Specifying as she does that she was discharged because she, a white woman, associated with a black [person], her complaint falls within the statutory language that she was 'discharge[d] . . . because of [her] race.' "). The Sixth Circuit reached the same conclusion by highlighting that Title VII of the Civil Rights Act of 1964 does not require that allegations address discrimination based "directly" on an individual's race. It reasoned, 'Title VII as actually worded simply prohibits discrimination 'because of such individual's race.' There is no mention of the words 'directly' or 'indirectly' in the statute. Under these ambiguous circumstances, we look to the purpose of the statute for its proper interpretation." Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, and GMC Trucks, Inc., 173 F.3d 988, 995 (6th Cir. 1999). Recently, in a case of first impression, the Second Circuit adopted this rationale. Holcomb v. lona College, 521 F.3d 130, 138-39 (2d Cir. 2008).
100. This hypothetical is loosely based on a lawsuit of ours, which was resolved to our satisfaction. We are unable, however, to discuss the specifics of that case and have altered the facts to protect the anonymity of the parties involved.
101. The application requested information about jobs and finances, included contact information for past landlords (all of whom strongly recommended Andrew and Jackie), and allowed for a credit check.
102. Cf. Cygnar v. City of Chicago, 865 F.2d 827, 842 (7th Cir. 1989) (declaring that "the replacement of minority employees by individuals of the same race does not preclude a finding of discriminatory intent");
103. Pitre v. W. Elec Co., 843 F.2d 1262, 1272 (10th Cir. 1988) (holding that hiring or promoting a member of a protected class in place of a Title VII plaintiff is insufficient to insulate the employer from liability).
104. Cf. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978) ("A prima facie case under McDonnell Douglas raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors. And we are willing to presume this largely because we know from our experience that more often than not people do not act in a totally arbitrary manner, without any underlying reasons, especially in a business setting. Thus, when all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer's actions, it is more likely than not the employer, who we generally assume acts only with some reason, based his decision on an impermissible consideration such as race.").
105. See Kimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. CHI. LEGAL F. 139, 140-50 (coining and explaining the term "intersectionality");
106. see also Minna Kotkin, Diversity and Discrimination: A Look at Complex Bias, 50 WM. & MARY L. REV. (forthcoming 2009) (manuscript at 11-36, 41, available at http://ssrn.com/abstract=1099327) (discussing the empirical difficulties of proving intersectional claims because even "as multiple claims have proliferated, few courts engage in any systematic or rigorous analysis of the possibility of complex discrimination").
107. But see Worcester Hous. Auth. v. Mass. Comm'n Against Discrimination, 547 N.E.2d 43, 45 (Mass. 1989) ("The use of the plural [in the term "persons"] signifies a legislative determination that two persons cannot be denied housing accommodations or benefits solely because the owner or administering authority prefers not to deal with certain kinds of people based on, inter alia, their race, sex, age, or marital status. The statute thus reaches, and prevents, discrimination in housing against, among others, unmarried couples, interracial couples, younger couples, older couples, and couples who hold different religious beliefs."). Of course, the owner's evidence regarding rentals to monoracial couples is not inconsistent with Andrew and Jackie's traditional race discrimination claim because the lease of the monoracial, black couple began only after Andrew and Jackie filed their complaint.
108. 42 U.S.C. § 3602(k) (2000).
109. Although Title VIII does not include protections against discrimination due to "marital status," many state housing discrimination statutes do. See, e.g., CAL. GOV. CODE § 12955 (West 2008) (containing a fair housing provision that prohibits discrimination on the basis of sexual orientation, marital status, race, sex, ancestry, source of income, disability and other factors).
110. See Miller v. C.A. Muer Corp., 362 N.W.2d 650, 654 (Mich. 1984) (reasoning that "[b]y including marital status as a protected class, the Legislature manifested its intent to prohibit discrimination based on whether a person is married" under the anti-discrimination statute in Michigan);
111. see also Hadfield's Seafood v. Rouser, No. CIV.A.00A-07-008-JRJ, 2001 WL 1456795, at *3 (Del. Super. Ct. Aug. 17, 2001) (noting that "marital status," as defined in the anti-discrimination statute in Delaware, was "solely concerned with whether one is married or single and whether the complainant was discriminated against based on that single fact").
112. 497 N.W.2d 714, 715 (Wis. 1993);
113. see also N.D. Fair Hous. Council, Inc. v. Petersen, 625 N.W.2d 551, 560 (N.D. 2001) (asserting "status with respect to marriage" means "whether a person is divorced, widowed or separated").
114. The court may also recognize the claim without any analysis at all, as the Kentucky Court of Appeals once did. See Lexington-Fayette Urban County Human Rights Comm'n v. Metro Mgmt., Inc., No. 2002-CA001234-MR, 2003 WL 22271567, at *5 (Ky. Ct. App. Oct. 3, 2003) ("As an interracial couple, the Wilkersons are clearly members of a protected class.").
115. Cf. Holning Lau, Transcending the Individualist Paradigm in Sexual Orientation Antidiscrimination Law, 94 CAL. L. REV. 1271, 1292 (2006) ("Exclusion [of same-sex couples in public accommodations] suggests that the business refuses to recognize the couple's legitimacy,striking a blow at the couple's collective dignity and self-respect. Those dignitary harms burden the couple's development.").
116. Bryant v. Automatic Data Processing, Inc., 390 N.W.2d 732, 735 (Mich. Ct. App. 1986).
117. U.S. EEOC, WHY DO WE NEED E-RACE? (2008), http://www.eeoc.gov/initiatives/e-race/why-e-race.html;
118. see also Kevin R. Johnson, The Legacy of Jim Crow: The Enduring Taboo of Black-White Relationships, 84 TEX. L. REV. 739, 739 (2006) ("Interracial relationships have increased dramatically over the last fifty years.").