Marginal whiteness

California Law Review

Volumn 98, Issue 5, 2010, Pages 1497-1594

  Riche, Camille Gear ^a  

^a UNIVERSITY OF SOUTHERN CALIFORNIA   (United States)

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EID: 78651263936     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (365)

1. Title VII of the Civil Rights Act of 1964 prohibits discrimination in the workplace on the basis of race, sex, and other statutorily identified characteristics. 42 U.S.C. § 2000e-2(a)(l) (2006). In this discussion, the term "interracial solidarity claims" refers to the judicially constructed causes of action under Title VII that allow white employees to bring claims based on discrimination directed at their racial and ethnic minority coworkers. Most of the Title VII claims in this area technically are called "interracial association" claims; however, as explained in more detail in the Parts that follow, the label is a misnomer given the slightly broader range of interests on which whites are allowed to sue when they complain about minority-targeted discrimination. For further discussion on the development of interracial solidarity or "interracial association" claims under Title VII, see infra Part II.
2. See Clayton v. White Hall Sch. Dist., 778 F.2d 457, 459-60 (8th Cir. 1985).
3. Id.
4. The black worker was a janitor, rather than a cafeteria worker. However, under the official residency rule neither he nor Clayton would have been eligible for the nonresidency benefit. Id.
5. Id.
6. Id. at 459.
7. Id. at 459-60. For an analysis of Clayton's efforts to replead her claim,
8. see Noah D. Zatz, Beyond the Zero Sum Game: Toward Title VII Protection for Intergroup Solidarity, 11 IND. L.J. 63, 89 (2002).
9. Advocates of a plain reading approach to Title VII also might wonder why Clayton had such confidence in her claim. They rightly will note that Title VII, by its plain terms, only protects a person from workplace discrimination initiated because of her race. See 42 U.S.C. § 2000e-2(a)(1). Clayton did not allege that the district discriminated against her because she was white; therefore, they would argue, she had no claim. However, workplace discrimination scholars know that this rigid technical reading of Title VII has not held sway with courts. Instead, courts have allowed individuals to bring Title VII claims when the individual plaintiffs racial status technically did not cause the alleged discrimination. See, e.g., Rodgers v. W.-S. Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993) (recognizing that racially harassing conduct on the part of an employer, even if not directed at the plaintiff, could be used to establish a Title VII racial harassment claim); Gray v. Greyhound Lines, E., 545 F.2d 169 (D.C. Cir. 1976) (recognizing black employees had standing to bring a Title VII race discrimination claim concerning discriminatory hiring practices that did not affect them directly but caused them psychological injury). In these cases, the plaintiff happened to be the same race as the actual target of the discrimination. See, e.g., Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir. 1997) (recognizing that a "racial epithet need not be directed at a plaintiff in order to contribute to a hostile work environment"). However, courts determined that it was a small step to conclude that persons from other racial groups than the one being targeted also might have an interest in not being subject to a hostile, racially discriminatory environment. This broader interpretive approach to "hostile environment" doctrine became one of the bases for interracial solidarity doctrine. See, e.g., Clayton, 778 F.2d at 459-60.
10. Clayton, 778 F.2d at 460.
11. Id. at 459.
12. This is the class of interests most commonly recognized under interracial association doctrine. See, e.g., id. 459-60 (recognizing associational interests under interracial association doctrine); EEOC v. Bailey Co., 563 F.2d 439,453-54 (6th Cir. 1977) (same).
13. See, e.g., Stewart v. Hannon, 675 F.2d 846, 850 (7th Cir. 1982) (recognizing whites' standing to sue under Title VII for loss of benefits of interracial harmony); Int'l Woodworkers of Am. v. Chesapeake Bay, 659 F.2d 1259,1271 (3d Cir. 1978) (recognizing whites' standing to sue for violation of interest in interracial association); Sidari v. Orleans County, 174 F.R.D. 275, 283-84 (W.D.N.Y. 1996) (recognizing whites' interest in associating with minorities as a basis for suit).
14. As Part II shows, some courts also interpret interracial association doctrine to cover the right to a "nondiscriminatory" workplace. See, e.g., Stewart, 675 F.2d at 849 (recognizing the right to a "colorblind workplace" as part of interracial association doctrine and collecting administrative cases); Bailey Co., 563 F.2d at 453-54 (same); Badillo v. Cent. Steel & Wire Co., 495 F. Supp. 299, 305-06 (N.D. 111. 1980) (interpreting interracial association doctrine to provide standing to sue based on right to a "colorblind workplace").
15. Some may recognize these interests as they are articulated in Fourteenth Amendment equal protection jurisprudence, as they represent the two kinds of interests whites have raised in cases challenging regimes designed to ensure that persons of color have equal access to educational opportunities. See, e.g., Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) (recognizing school administrators' interest in preserving a diverse student body and noting associational benefits conferred on white students as a result of affirmative action programs improving the educational access of minorities); cf. Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007) (recognizing that white school children subject to a district-wide assignment plan based on race had standing to challenge the district's action depriving them of the benefits of a colorblind or race-neutral assignment process). Scholars have noted how Supreme Court equal protection jurisprudence shows the Court's particularly strong commitment to claims based on colorblindness.
16. See, e.g., Ian F. Haney Lopez, "A Nation of Minorities": Race, Ethnicity, and Reactionary Colorblindness, 59 STAN. L. REV. 985 (2007) (discussing the evolution of colorblindness discourse in Supreme Court doctrine). However, many legal scholars have characterized colorblindness discourse as one of the primary obstacles to achieving racial equality.
17. See, e.g., Kimberle' Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 HARV. L. REV. 1331, 1336-41 (1988) (describing how the rhetoric of colorblindness, formally associated with progressive antiracism movements, has been remobilized by conservatives in ways that tend to compromise the struggle for racial equality);
18. John C. Duncan, Jr., The American 'Legal' Dilemma: Colorblind I/Colorblind II-The Rules Have Changed Again: A Semantic Apothegmatic Permutation, 7 VA. J. Soc. POL'Y & L. 315, 319-21 (2000) (discussing and describing several understandings of colorblindness).
19. Clayton, 778 F.2d at 459.
20. Id.
21. Clayton was quite specific about the economic value of the benefit she had lost. In her claim she contended that the denial of the residency exemption posed an "economic hardship in the difficulty of obtaining a babysitter and the additional cost providing [sic] babysitting services for the child as a result of the hours [she] worked." Id. at 458.
22. The court in Clayton made it clear that the primary problem with her claim was its economic nature. Discussing both the associational and the "colorblind workplace" causes of action, the court explained that the "essence of these two doctrines is that a plaintiff employee finds racial or other discrimination in the workplace offensive or distasteful because it violates that employee's right to work in an atmosphere free of discrimination." Id. at 459. The court elaborated on this point, noting "it is an emotional or psychological injury to the plaintiff herself which is the gravamen of this cause of action." Id. The Court concluded that the nature of her injury invalidated her claim, as the interest she alleged in the case was not "an interest arguably within the zone of interests to be protected or regulated by the [civil rights laws]." Id. at 460.
23. For example, some scholars might find Clayton's passivity in the face of the earlier discrimination against her minority coworker to be disqualifying. See, e.g., TLaXz, supra note 7, at 92 (raising concerns about constructions of Title VII that reward passive bystanders to past discrimination instead of those who prevent or disrupt discrimination);
24. see also Yoonjo J. Lee, White Privilege or Blessing?: Standing to Sue as Non-Targeted Bystanders of Racial Discrimination in Housing and Employment, 28 HAMLINE J. PUB. L. & POL'Y 557, 561 (2007) (arguing that permitting bystanders to race discrimination to bring antidiscrimination claims generally favors the "powerful over the powerless").
25. Specifically, the court dismissed Clayton's claim because the injury she allegedly suffered did not fall within the "zone of interests" Congress intended to protect when it created Title VII. Clayton, 778 F.2d at 460. However, there is nothing in the court's opinion to explain how it construed the bounds of that "zone of interests." It appears that the court interpreted the scope of the "zone of interests" by reference to certain civil rights era norms used in antidiscrimination law to describe whites' interests. These norms posit that the only legally cognizable injuries that whites suffer from minority-targeted discrimination are second-order moral and ethical injuries (such as those inflicted when others wrongfully interfere with their interest in a colorblind workplace).
26. Courts show some variation in the doctrinal sources they rely on in recognizing the two interests identified here by the term "interracial solidarity" doctrine. For example, the Clayton court recognized both interests; however, it interpreted "interracial association" doctrine in that case to cover only Clayton's interest in associating with minorities, what I describe here as a kind of diversity interest. Id. at 459-60. However, the court still found a way to recognize Clayton's right to sue for the invasion of her colorblindness interests (or her right to a nondiscriminatory workplace) by recognizing this claim under traditional Title VII "hostile environment" doctrine. Id. Other courts treat this interest in colorblindness as simply another interest cognizable under interracial association doctrine. For further discussion see infra Part II.
27. See Cass Sunstein, On the Expressive Function of Law, 144 U. PA. L. REV. 2021, 2024 (1996) (discussing law's role in reflecting certain normative understandings).
28. Lee, supra note 19, at 561 (raising concerns about white plaintiffs' claims based on minority-targeted discrimination when plaintiffs are mere passive bystanders); Zatz, supra note 7, at 92-93 (arguing that if courts extend Title VII standing to whites to prosecute minority-targeted discrimination they should not merely reward passive bystanders to past discrimination).
29. BARBARA TREPAGNIER, SILENT RACISM: HOW WELL-MEANING WHITE PEOPLE PERPETUATE THE RACIAL DIVIDE 66 (2006) (discussing the role social contacts play in gaining information about the workplace and the ways in which this factor contributes to institutional racism).
30. See, e.g., Cheryl R. Kaiser & Carol T. Miller, Derogating the Victim: The Interpersonal Consequences of Blaming Events on Discrimination, 6 GROUP PROCESSES & INTERGROUP REL. 227, 228 (2003) (discussing prior research showing that women and African Americans were less likely to publicly claim that they had suffered discrimination in the presence of a racial or gender outgroup member). Kaiser and Miller's subsequent experiments showed that this seeming reluctance or fear about reporting was in part justified as outgroup members, specifically whites or male coworkers, judged persons who claimed race or gender discrimination more harshly than non-complaining persons. Id. These outgroup members continued to disfavor persons who complained about discrimination even when exposed to evidence showing that the complaints lodged had some basis-i.e. that the complainant was being forced to work for someone with discriminatory attitudes. Id. at 234.
31. See, e.g., Palmer v. Thompson, 403 U.S. 217 (1971) (rejecting black petitioners' Fourteenth Amendment equal protection claim challenging a municipality's decision closing its public swimming pools after an integration order had been entered). Petitioners argued that the pools had been closed to avoid having to desegregate the pools, specifically, to allow admission to black as well as white community residents. Id. at 218-19. The municipality officials' decision arguably burdened working-class and poor whites in ways that wealthier whites were not, since wealthier whites continued to have access to pools at private clubs or owned their own swimming pools. Id. at 235 (Douglas, J., dissenting). However, working-class whites seemingly accepted the burden of these closures, joining in a coalition with higher-status whites to maintain the idea of "white privilege." This Article questions whether working-class whites would make the same cost-benefit calculations today or would instead be motivated to try to keep the pools open rather than tolerate their closure as part of the effort to defend white privilege.
32. Some may assume that the primary subgroup of low-status whites to which I am referring is working-class whites, as they are more likely to find that their economic interests dovetail with poor persons of color than wealthier whites. Class marginalization is an important kind of marginality that can cause whites to adopt a marginal whiteness framework for understanding workplace disputes; however, it is not the only form of difference that is relevant in these conflicts. A variety of other kinds of marginalization work similarly. For further discussion of the other identity factors that can qualify the experience of white privilege see infra text accompanying notes 66-71.
33. The civil rights era "norms" or premises referred to here are understandings based on unspoken assumptions that structure the public's views about whites' relationship to minority-targeted discrimination. These norms posit that all whites stand to gain illicit economic and social benefits from efforts to maintain white privilege. Consequently, whites must be actively trained to reject these illicit advantages. The civil rights era paradigm hypothesizes that the best way to achieve this end is by convincing whites to give up the benefits provided by white privilege in exchange for the higher or second-order moral and psychological benefits they will enjoy by working to achieve the goal of racial equality. These benefits are the benefits of diversity, achieved by associating with minorities, and the benefits of colorblindness, achieved by living in a race-neutral world. This paradigm, however, obscures the fact that many whites do not benefit economically and socially from white privilege and therefore may have a hostile relationship to some white privilege maintenance strategies, particularly when they compromise their economic and dignitary interests. These whites may want to complain about minority-targeted discrimination on grounds that simply cannot be articulated within the traditional civil rights era paradigm.
34. Specifically, the low number of interracial solidarity claims filed by whites suggests that, even if the moral concerns highlighted by the civil rights paradigm are valued by whites, these concerns have not convinced many whites to move beyond whatever competing, basic self-interest concerns they have. Cf. Elizabeth Denevi & Nicholas Pastan, Helping Whites Develop Anti-Racist Identities: Overcoming Their Resistance to Fighting Racism, 14 MULTI-CULTURAL EDUC. 70 (2006) (discussing failure of some whites to move beyond abstract concerns about race discrimination to personal action given their concerns about more basic self-interest based concerns). I argue that, to be truly effective, Title VII will have to provide these passive whites with a vision explaining why their individual self-interest concerns do not outweigh their interest in eradicating minority-targeted discrimination, and that their immediate economic and dignity interests may be far better served by disrupting workplace race discrimination.
35. Because this Article is the first of its kind, it does not attempt to provide a comprehensive account of all marginal-white subjects. It is instead intended to function as an introduction to this framework and lay a foundation for future theorizing.
36. See Jennifer L. Eichstedt, Problematic White Identities and a Search for Racial Justice, 16 Soc. FORUM 445, 452 (2001) (discussing whites' experiences of certain kinds of subordination as generating a critical consciousness about white privilege). Eichstedt is focused on persons whose ambivalence eventually motivates them to become antiracist activists. My concern is with persons who experience ambivalence, but are passive about that ambivalence until they are confronted with circumstances that cause them to realize that their interests are not served by the construction of whiteness and white privilege in a given social context.
37. This Article does not seek to establish a complete empirical basis for the claims made here about marginal whites and white intraracial conflicts in the workplace. Instead the marginal whiteness framework draws insight from scholars' work in anthropology and sociology about intragroup race discrimination. It shows how these scholars' insights about race are confirmed in Title VII cases where higher-status whites disregard low-status whites' interests as they attempt to discriminate against minorities. However, some scholars doing empirical work have begun inquiring about the ways in which higher-status whites may use discrimination targeted at certain subgroups of whites as a way of covering or masking discrimination directed at minorities. See Jill Bradley, Rejection and Deflection: The Case of the "Poor White Trash" Stereotype 3, 33-34, 46-47 (Apr. 2006) (unpublished Ph.D. dissertation, Tulane University) (available at http://proquest.umi.com/pqdlink? Ver=l&Exp=03-29-2015&FMT=7&Dro=1390336521&RQT=309&attempt= l&cfc=l)(discussing study in which middle-class whites showed a greater willingness to discriminate against middle-class blacks after being given a chance to discriminate against working-class whites). The study's author suggests that the ability to deflect claims of discrimination by treating whites poorly psychologically freed middle-class whites to engage in minority-targeted discrimination. Id.
38. Some distinction must be made between marginal whites and marginal-white plaintiffs: the second group is merely a subset of the first. For I am not claiming that all marginal whites will become marginal-white plaintiffs who challenge minority-targeted discrimination in the workplace. Rather, some marginal whites undoubtedly will remain ambivalent about whiteness and mostly passive about minority-targeted discrimination. However, I am arguing that if Title VII provides marginal whites with a clear remedy for their injuries, they are much more likely to sue based on minority-targeted discrimination that also harms their interests. Also, my argument should not be read to suggest that only marginal whites are interested in bringing Title VII claims challenging minority-targeted discrimination. Rather, the traditional civil rights era paradigm, celebrating colorblindness or diversity-based associational interests, will encourage some whites to bring interracial solidarity claims. See, e.g., Childress v. City of Richmond, 134 F.3d 1205 (4th Cir. 1998) (discussing white male police officers' Title VII interracial solidarity claim alleging association-based injuries because of their supervisor's discriminatory treatment of black and female coworkers). Instead, marginal whiteness is being offered as a supplementary account to explain the interests of whites that previously have not been well represented in the case law, as this group of plaintiffs has an important role to play in the enforcement of Title VII.
39. There are a variety of ways whites may experience outgroup discrimination as relevant to understanding ingroup conflicts. See, e.g., Bradley, supra note 32 (arguing that whites may mask outgroup discrimination by engaging in discrimination against low-status members of their own ingroup). Alternatively, the presence of intraracial discrimination may make some whites more sensitive to the presence of outgroup racial discrimination. For example, prior experiences based on other kinds of marginalization and discrimination can shape whites' views about the prevalence of race discrimination. See, e.g., Eichstedt, supra note 31, at 463 (discussing research showing that certain white individuals who were stigmatized or experienced oppression based on some non-race based characteristic used these negative experiences as they developed an antiracism stance). 35. Although the theory of marginal whiteness offered here is my own creation, it was influenced by the work of other scholars.
40. See generally MATT WRAY, NOT QUITE WHITE: WHITE TRASH AND THE BOUNDARIES OF WHITENESS (2006) (using a sociological account to discus the need for a broader theory of whiteness that incorporates insights about how gender and class shape racial identity and experiences); Ruth Frankenberg, The Mirage of an Unmarked Whiteness, in THE MAKING AND UNMAKING OF WHITENESS 72 (Birgit Brander Rasmussen et at. eds., 2001) (discussing the need in critical whiteness studies more generally to further deconstruct existing scholarly concepts of whiteness);
41. Ladelle McWhorter, Where Do White People Come From?: A Foucaultian Critique of Whiteness Studies, 31 PHIL. & Soc. CRITICISM 533 (2005) (using insights from critical theory to critique contemporary representations of whiteness and white privilege); Joel Olson, Whiteness and the Participation-Inclusion Dilemma, 30 POL. THEORY 384 (2002) (offering insights from political theory to explain whites' increasing devaluation of white privilege);
42. France Winddance Twine & Charles Gallagher, The Future of Whiteness: A Map of the "Third Wave,' 31 ETHNIC & RACIAL STUD. 4 (2007) (discussing influence of post-structuralist theory on studies of whiteness).
43. Throughout this Article, I often refer to "post-civil rights era whites." Again, this term refers to white persons who came of adulthood roughly two decades after the civil rights movement. The term collectively refers to at least three generations-colloquially called Gen Xers, Gen Yers, and millenials. My analysis should be limited to the perceptions of these groups of whites because I rely on psychological research performed after the late 1990s describing recent significant changes in whites' attitudes. Consequently, most test subjects in these studies were born in the late 1970s or subsequent years.
44. See, e.g., Lisa B. Spanierman & Mary J. Heppner, Psychosocial Costs of Racism to Whites Scale (PCRW): Construction and Initial Validation, 51 J. COUNSELING PSYCHOL. 249,252 (2004) (discussing study of 361 self-identified white participants taken from undergraduate classes at a midsized Midwestern university);
45. Janet K. Swim & Deborah L. Miller, White Guilt: Its Antecedents and Consequences for Attitudes Toward Affirmative Action, 25 PERS. Soc. PSYCHOL. BULL. 500,503 (1999) (discussing study of 102 white undergraduate students from the University of Pennsylvania). However, the framework may also have appeal for whites from earlier generations who did not deeply embrace the goals of the civil rights movement.
46. See sources cited infra Part III.
47. Olson, supra note 35, at 391 (discussing contemporary whites' increasing devaluation of white privilege)
48. See, e.g., Olson, supra note 35, at 391 (discussing contemporary whites' increasing devaluation of white privilege); see also Charles A. Gallagher, White Racial Formation: Into the 21st Century, in CRITICAL WHITE STUDIES: LOOKING BEHIND THE MIRROR, supra note 38, at 10 ("It becomes difficult for working class white students to think about white privilege when they are accumulating college debt, forced to live with their parents, working twenty-five hours a week on top of their studies, and are concerned that Starbucks or the Gap may be their future employer.").
49. Sociologist Eduardo Bonilla-Silva points out that these inequities between whites may help build common ground between whites and minorities. As he explains, the wages of whiteness are not equally distributed. Poor and working-class whites receive a better deal than their minority brethren, but their material share of the benefits of whiteness is low, as they remain too close to the economic abyss. Hence white workers have a powerful reason to exhibit more solidarity toward minorities than whites in other classes. EDUARDO BONILLA-SILVA, RACISM WITHOUT RACISTS: COLOR-BLIND RACISM AND THE PERSISTENCE OF RACIAL INEQUALITY IN THE UNITED STATES 145 (2d ed. 2006) (citations omitted).
50. Gualtieri S, 20 J. AM. ETHNIC HIST, 29, 2001, Becoming "White": Race, Religion and the Foundations of Syrian/Lebanese Ethnicity in the United States, (discussing prior categorization of Arab-Americans as white and current attempts to "dissociate" from this classification given their need for the protection of antidiscrimination laws)
51. Sarah Gualtieri, Becoming "White": Race, Religion and the Foundations of Syrian/Lebanese Ethnicity in the United States, 20 J. AM. ETHNIC HIST. 29 (2001) (discussing prior categorization of Arab-Americans as white and current attempts to "dissociate" from this classification given their need for the protection of antidiscrimination laws); Jonathan W. Warren & France Winddance Twine, White Americans, the New Minority?: Non-Blacks and the Ever-Expanding Boundaries of Whiteness, 28 J. BLACK STUD. 200 (1997) (discussing legal and institutional measures allowing multiracial persons and Latinos to identify themselves as white in many cases, and discussing intermarriage rates as evidence of the expansion of the category of whiteness to include Asians and Latinos).
52. As historian Matthew Jacobson has noted, races are invented categories-designations coined for the sake of grouping and separating peoples along lines of presumed difference-Caucasians are made and not bom. White privilege in various forms has been a constant in American political culture since colonial times, but whiteness itself has been subject to all kinds of contests and has gone through a series of historical vicissitudes. MATTHEW FRYE JACOBSON, WHITENESS OF A DIFFERENT COLOR: EUROPEAN IMMIGRANTS AND THE ALCHEMY OF RACE 4 (1998).
53. Gross AJ, What Blood Won'T Tell: A History Of Race On Trial In America, 2008, (discussing racial determination trials in America during the antebellum period); IAN HANEY LOPEZ, WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE (2006) (discussing courts' racial status determinations in nineteenth- and twentieth-century immigration cases)
54. Gross AJ, 108 YALE L.J., 1998, 109, Litigating Whiteness: Trials of Racial Determination in the Nineteenth-Century South. (examining court analyses regarding racial status in nineteenth-century cases concerning slave codes);
55. See, e.g., ARIELA J. GROSS, WHAT BLOOD WON'T TELL: A HISTORY OF RACE ON TRIAL IN AMERICA (2008) (discussing racial determination trials in America during the antebellum period); IAN HANEY LOPEZ, WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE (2006) (discussing courts' racial status determinations in nineteenth- and twentieth-century immigration cases); Ariela J. Gross, Litigating Whiteness: Trials of Racial Determination in the Nineteenth-Century South, 108 YALE L.J. 109 (1998) (examining court analyses regarding racial status in nineteenth-century cases concerning slave codes); Ian Haney L6pez, Race on the 2010 Census: Hispanics & the Shrinking White Majority, 134 DAEDALUS 42 (2005) (discussing changing designations for Latinos in American census forms and effect on the construction of white identity). Labor and immigration historians also have been instrumental in developing our understanding of the evolving nature of whiteness and the political implications of changes during a given historical period. See, e.g., JACOBSON, supra note 41 (immigration historian charting the political dynamics in the nineteenth and twentieth centuries that led to the absorption of various European ethnics into the category of whiteness including Celts, Slavs, Hebrews, and Mediterraneans); DAVID R. ROEDIGER, WORKING TOWARD WHITENESS: HOW AMERICA'S IMMIGRANTS BECAME WHITE (2005) (labor historian discussing the historical process by which Southern and Eastern Europeans became socially recognized as white in the United States); see also BRUCE BAUM, THE RISE AND FALL OF THE CAUCASIAN RACE: A POLITICAL HISTORY OF RACIAL IDENTITY (2006) (political scientist exploring political pressure exerted on evolving scientific definitions of race and how these dynamics affected the definition of Caucasian in the United States).
56. See, e.g., Barbara J. Flagg, Fashioning a Title VII Remedy for Transparently White Subjective Decisionmaking, 104 YALE L.J. 2009, 2013 (1995) [hereinafter Flagg, Fashioning a Title VII Remedy] (arguing against interpretations of Title VII that fail to problematize default cultural norms of the workplace that privilege whites); Barbara J. Flagg, "Was Blind, But Now I See": White Race Consciousness and the Requirement of Discriminatory Intent, 91 MICH. L. REV. 953 (1993) (arguing that Fourteenth Amendment analysis based on the colorblindness principle is inadequate social policy if the ultimate goal is substantive racial justice).
57. See, e.g., Flagg, Fashioning a Title VII Remedy, supra note 43, at 2013 (introducing the concept of the transparency phenomenon-the understanding that whites see themselves as non-raced). As Flagg explains, the transparency phenomenon &mellip; affects whites' decisionmaking; behaviors and characteristics associated with whites take on the same aura of race neutrality. Thus, white people frequently interpret norms adopted by a dominantly white culture as racially neutral, and so fail to recognize the ways in which those norms may be in fact covertly race-specific. Id. (citations omitted). Flagg's observations, which were based on sociological discussions of whiteness from the 1980s, proved to be an incredibly powerful intervention for antidiscrimination scholars. Over the last fifteen years, Flagg's "transparency thesis" has appeared in a wide variety of work and played a key role in many scholars' analyses of whiteness as a social phenomenon.
58. See, e.g., Devon W. Carbado & Cheryl I. Harris, The New Racial Preferences, 96 CALIF. L. REV. 1139, 1169 (2008) (discussing Flagg's "transparency phenomenon" in the context of university admissions);
59. Kevin Noble Maillard & Janis L. McDonald, The Anatomy of Grey: A Theory of Interracial Convergence, 26 LAW & INEQ. 305, 323 (2008) (discussing implications of Flagg's transparency phenomenon in the context of transrectal adoption);
60. Stephanie M. Wildman, The Persistence of White Privilege, 18 WASH. U. J.L. & POL'Y 245, 245 (2005) (discussing transparency phenomenon's role in legal scholarship on whiteness and race discrimination). However, Flagg's work has remained a particularly important source of insight for scholars working on employment discrimination issues.
61. See, e.g., E. Christi Cunningham, The Rise of Identity Politics I: The Myth of the Protected Class in Title VII Disparate Treatment Cases, 30 CONN. L. REV. 441, 462 (1998) (discussing implications of transparency phenomenon for disparate treatment doctrine);
62. Tristin K. Green, Work Culture and Discrimination, 93 CALIF. L. REV. 623,665 (2005) (discussing implications of transparency phenomenon for Title VII disparate impact analysis).
63. Examples are too common to provide any useful overview here. For representative works
64. see Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV. 1707, 1759 (1993) ("The wages of whiteness are available to all whites regardless of class position, even to those whites who are without power, money, or influence."). Although Harris notes that the complete parcel of material benefits regarded as "white privilege" accrues to relatively few white persons, she does not explore this insight further in her theoretical account of whiteness.
65. See also Peggy Mcintosh, White Privilege and Male Privilege: A Personal Account of Coming to See Correspondences Through Work in Women's Studies, in CRITICAL WHITE STUDIES: LOOKING BEHIND THE MIRROR, supra note 38, at 291, 293-94 (recognizing potential variations in the experience of whiteness but listing forty-six ways in which white privilege benefits all whites regardless of class and gender position). More recently, some CRT scholars have raised questions about whether CRT should begin. to examine questions concerned with different whites' varying levels of access to white privilege.
66. See, e.g., LANI GUINIER & GERALD TORRES, THE MINER'S CANARY: ENLISTING RACE, RESISTING POWER, TRANSFORMING DEMOCRACY (2002) (exploring political possibilities with coalitions of whites who enjoy less access to white privilege); Devon W. Carbado, Race to the Bottom, 49 UCLA L. REV. 1283, 1296-97 (2002) (recognizing possibilities of a "differentiated whiteness" model that explores whites' varying levels of access to white privilege). Other CRT scholars have recognized the potential productive nature of such discussions but raise concerns that the benefits of whiteness may still prove too strong to allow whites to develop an appropriately nuanced perspective on white privilege. See Cheryl I. Harris, Mining in Hard Ground, 116 HARV. L. REV. 2487 (2003) (reviewing LANI GUINIER & GERALD TORRES, THE MINER'S CANARY: ENLISTING RACE, RESISTING POWER, TRANSFORMING DEMOCRACY (2002)) (raising concerns about Torres and Guinier's idea of multiracial coalitions based on "political race" because the strategy fails to give sufficient weight to the social and material benefits all whites enjoy as a consequence of white privilege).
67. Some CRT scholars have explored issues affecting ethnic groups that could be described as marginal whites. However, these scholars have not attempted to articulate a larger theory about the dynamics of intraracial conflict and its relationship to minority-targeted discrimination.
68. See, e.g., JOHN TEHRANIAN, WHITEWASHED: AMERICA'S INVISIBLE MIDDLE EASTERN MINORITY (2009) (noting that Middle Easterners historically have been categorized as white but are subject to discrimination similar to other persons of color).
69. See, e.g., Flagg, Fashioning a Title VII Remedy, supra note 43, at 2013 (discussing the burden the transparency phenomenon imposes on black workers);
70. cf. Devon W. Carbado & Mitu Gulati, Working Identity, 85 CORNELL L. REV. 1259 (2000) (discussing how minority workers' attempts to comply with workplace professionalism norms are interpreted disadvantageous as race-based behavior instead of being understood against a default white norm).
71. Legal scholars' work discussing the notion of a default "white" perspective could continue to be a source of insight for scholars using a marginal whiteness framework, or another approach that recognizes the contingent nature of white identity. However, in order to modify this work for use with the marginal whiteness framework, scholars would have to acknowledge that the default white identity that operates in a particular workplace is actually the product of a specific negotiation between workers in that workplace as to how to define whiteness or what white identity means.
72. See, e.g., Flagg, Fashioning a Title VII Remedy, supra note 43, at 2013. Flagg's insights match with some whites' descriptions of how they experience whiteness, as some do claim that they see themselves as racially unmarked subjects.
73. See Amanda E. Lewis, "What Group? " Studying Whites and Whiteness in the Era of "Color-Blindness," 22 Soc. THEORY 623, 635-36 (2004) (noting that many whites lack a self-conscious understanding of themselves as racial actors); Monica McDermott & Frank L. Samson, White Racial and Ethnic Identity in the United States, 31 ANN. REV. SOC. 245, 248 (2005) ("College and high school students are often unable to articulate what it means to be white, instead describing it as nothing or a vacuum.") (citations omitted). I have some skepticism about this view, as it is most likely held by persons socialized in relatively homogenous communities in terms of culture and class, and who consequently have not as much opportunity to compare their particular social and cultural practices (as well as political views) against other distinct groups of whites. However, even for this group, maintenance of an "unmarked" white identity requires studied inattention, for evidence of cleavages in the construction of whiteness are readily available in popular culture and media. For example, the Kennedy and Bush families are both celebrated American "white" families, but they do not perform whiteness in the same ways. Yet each family is regarded as representing an uncomplicated, privileged form of white identity with its prominence linked to specific identity features that are prioritized by particular constituencies of whites.
74. Some sociologists' research continues to support the view that whiteness is experienced as transparent and invisible by many white persons. See, e.g., BONILLA-SILVA, supra note 39, at 103-29 (describing whites' tendencies to see race as something that shapes minorities' experiences but not their own). However, other studies support the more nuanced proposition that the understanding of whiteness is determined by context. See infra notes 52-53. The best way to align these two observations is to recognize that whites may use a homogenized version of whiteness when primed to think about cross-racial conflicts, but may articulate more nuanced understandings of what counts as white and elaborate on whiteness's specificity when they are in all white communities or communities where the definition of whiteness is being contested.
75. The notion of "white invisibility" seems increasingly less compelling to many whiteness studies scholars.
76. See, e.g., John Hartigan, Jr., Establishing the Fact of Whiteness, 99 AM. ANTHROPOLOGIST 495,498 (1997). These scholars note that it would be difficult for whites to maintain the view that whiteness is invisible as they perceive their numbers to be shrinking and find the cultural landscape to be increasingly shaped by minority changes that make them aware of their own distinct cultural interests. As Ruth Frankenberg explains, "the current 'conditions and practice of whiteness' render 'the notion that whiteness might be invisible ⋯ bizarre in the extreme.'" McDermott & Samson, supra note 49, at 249 (quoting Frankenberg, supra note 35, at 76).
77. Sociologists Monica McDermott and Frank L. Samson explain that few scholars have attempted to "specify[⋯] concrete ways in which ⋯ experiences of whiteness differ" so as to materially affect whites' life chances and social standing. McDermott & Samson, supra note 49, at 256.
78. See MICHAEL OMI & HOWARD WINANT, RACIAL FORMATION IN THE UNITED STATES: FROM THE 1960s TO THE 1980s (1st ed. 1986). Omi and Winant explain that "racial formation" as a concept "emphasizes the socially constructed] nature of race, the absence of any essential racial characteristics, the historical flexibility of racial meanings and categories," and, key for our purposes, "the conflictual character of race at both the 'micro-' and 'macro-social' levels ⋯." Id. at 4. Along with other social theorists, they have connected the ways in which a given racial formation or racial project in a particular historical moment or context is tied to, and typically relies on, constructs that specifically inform racism as it is manifest in a given period. See also David Gilborn, Student Roles and Perspectives in Antiracist Education: A Crisis of White Ethnicity?, 22 BRIT. EDUC. RES. J. 165, 170 (1996) (noting that social theorists like Omi and Winant "highlight ways in which ideas about class, race, culture, gender and sexuality are continually made and remade, often in contradictory and ambivalent processes, so that racism becomes a much more complex and dynamic issue than is usually assumed") (citations omitted). Omi and Winant's work on white racial formation and white racial projects has focused on developments within broader national or regional political debates and social movements.
79. See Howard Winant, White Racial Projects, in THE MAKING AND UNMAKING OF WHITENESS, supra note 35, at 98,102-07 (discussing new abolitionist, neoconservative, and liberal racial projects).
80. The term "technologies of whiteness" is loosely based on ideas introduced by Michel Foucault in his writings on genealogy and the constitution of the subject, specifically, the ways in which individuals are constituted as subjects by the discursive categories utilized by other social actors and institutions, and participate in the continued mobilization and interpretation of these discursive categories. See McWhorter, supra note 35, at 537-38 (discussing Foucault's work on genealogy and its relevance to whiteness studies). McWhorter explains that, [i]f Foucault had wanted to understand the formation of white subjectivity, he would have done a genealogy of whiteness. He would have looked for a point in the historical archive before whiteness made its appearance as a subject position, and he would have tried "to identify the accidents, the minute deviations-or conversely, the complete reversals-the errors, the false appraisals, and the faulty calculations that gave birth to" white subjectivity, realizing that any such genealogical account of what has claimed the status of the ahistorical, the natural, or the norm "has value as a critique." Id. at 537 (quoting Michel Foucault, Nietzsche, Genealogy, History, in LANGUAGE, COUNTER-MEMORY, PRACTICE 139, 146 (Donald F. Bouchard ed., 1977)). This genealogy can be used to evaluate the current constitution of race and whiteness as a subject position. Id. I similarly argue that race (and particularly whiteness) is constituted, mobilized, and continually reworked by social actors as they discuss who fits into a racial category and what membership in that group means. Whiteness is remade as individual actors explore the possibilities presented by claiming a subject position associated with this particular racial group. Charting this evolving process will provide insight into the ways in which whiteness, and race more generally, is currently deployed in workplace discrimination disputes as well as larger social conflicts.
81. Some scholars have criticized CWS scholars' work that is based on the concept of "racial formation" because the scholarship produced tends to encourage a macro-level analysis of problems and fails to pay sufficient attention to the micro-level disputes about racial categories as they are defined in particular social locations.
82. Some scholars have criticized CWS scholars' work that is based on the
83. Indeed, there may be more questions about who qualifies to receive the benefits of whiteness in a particular space in contemporary circumstances, as large numbers of multiracial people have now decided to identify as white. See Twine & Gallagher, supra note 35, at 14 (noting that half of multiracial Asian and light-skinned Latino offspring who identified one parent as white in the 2000 National Health Interview Survey designated their primary identity as white in follow-up interviews). These persons may find that in certain circumstances their claims to whiteness are challenged. See, e.g., Warren & Twine, supra note 40, at 202 (discussing Twine's surprise at discovering that her Syrian and Italian background was cited by an interviewee as disqualifying her from the category of whiteness in his view). Persons without clearly identifiable ethnic characteristics may still encounter this difficulty, as persons more clearly phenotypically identified as white may find that their claims to whiteness are challenged because they display certain class-based markers.
84. Cf. Jane W. Gibson, The Social Construction of Whiteness in Shellcracker Haven, Florida, 55 HUMAN ORG. 379, 384 (1996) (noting that poor whites are socially constructed as racially different, and despite their "identification with privileged white society," find their bond to whiteness is "seldom and only opportunistically reciprocated").
85. Joane Nagel, Constructing Ethnicity: Creating and Recreating Ethnic Identity and Culture, 41 Soc. PROBS. 158, 161 (1994). Nagel describes this process similarly, explaining that racial and ethnic identity is formed through individual voluntary identification and involuntary social ascription, as well as the formal and informal ethnic and racial identities that are deployed in different social locations. Id. at 154;
86. see also Camille Gear Rich, Performing Racial and Ethnic Identity: Discrimination by Proxy and the Future of Title VII, 79 N.Y.U. L. REV. 1134 (2004) (describing voluntary and ascriptive components of racial and ethnic identity).
87. Gibson, supra note 56, at 379-89 (discussing regionally specific forces that shape the understandings of poor whites in Shellcracker, Florida). See Hartigan, supra note 55, at 182 (discussing regionally specific understandings that construct various subgroups of poor whites' understanding of white racial identity in urban Detroit).
88. Lewis, supra note 49, at 624 ("Self-identification processes are linked with but are not equivalent to external ascriptions of racial categorization.") (citations omitted). Indeed, a person may not claim to be white at all, but still experience privilege because her morphology causes her to be regarded as white. Id. at 628.
89. See, e.g., France Winddance Twine, Brown Skinned White Girls: Class, Culture and the Construction of White Identity in Suburban Communities, 3 GENDER, PLACE & CULTURE 205 (1996) (interviewing suburban mixed-race girls of African descent who successfully claimed white identities during adolescence in middle-class, suburban communities despite bearing phenotypical characteristics that marked them as persons of mixed descent). This experience of being raced as white or non-raced ended for many of the young women at puberty as social pressures forced them to recognize their status as mixed race persons or persons of African heritage. Id. at 216-18.
90. Nagel, supra note 57, at 158-59 (discussing how ethnic and racial boundaries are porous and often shift in response to status competition over resources). Nagel notes that these status conflicts are particularly likely to arise in the workplace. Id. Citing David Roediger's work on the white working class in the 1930s and 1940s, Nagel notes how the Irish worked to expand the category of whiteness to include their ethnic group as well, as a way of distancing their labor from the labor of African Americans. Id.
91. Orleans County, 174 F.R.D., 275 (278) Sidari v., (W.D.N.Y. 1996) (discussing Italian American correction officer's national-origin- and religion-based discrimination claim based on allegations that white officers called him a "nigger turned inside out" and otherwise harassed him in the workplace).
92. See, e.g., Sidari v. Orleans County, 174 F.R.D. 275, 278 (W.D.N.Y. 1996) (discussing Italian American correction officer's national-origin- and religion-based discrimination claim based on allegations that white officers called him a "nigger turned inside out" and otherwise harassed him in the workplace). See LaRocca v. Precision Motorcars, Inc., 45 F. Supp. 2d 762, 770-71 (D. Neb. 1999) (discussing Italian American plaintiffs Title VII national-origin discrimination claim alleging his Italian heritage and darker skin caused co-workers to racially harass him, call him "spic" and wetback, and make ethnic jokes in front of him).
93. Cf. Winant, White Racial Projects, supra note 53, at 97 (arguing that much of white racism and identity struggles can be understood as a struggle against anxiety regarding the instability of whiteness).
94. Other scholars have addressed the question of race-based anxiety, particularly in the context of group status conflicts that control access to resources.
95. See, e.g., Lawrence D. Bobo, Prejudice as Group Position: Microfoundations of a Sociological Approach to Racism and Race Relations, 55 J. Soc. ISSUES 445,447,449 (1999) (summarizing Herbert Blumer's theory of group position); Rich, supra note 57, at 1187-90 (applying Blumer and Bobo's insights to workplace discrimination conflicts). While most group position scholars have concentrated on the anxiety associated with ensuring the status of one's own racial group, in this analysis I argue that group status-based anxiety extends to group membership concerns. Specifically, a person may perceive herself to be a member of a particular racial group but fear not being recognized as a member of that group by others, or fear exclusion from the enjoyment of certain group-controlled benefits. These anxieties are most readily apparent when one examines the experiences of multiracial whites and working-class whites.
96. See Swim & Miller, supra note 36, at 500 (noting that whites do not need to "spend as much psychological effort or economic resources recovering from others' prejudice and protecting themselves from possible encounters with prejudice").
97. See Eichstedt, supra note 31, at 450 ("[T]he 'benefits' of being white are not evenly distributed and ⋯ this uneven distribution of white privilege leads to different phenomenological relationships to the 'fact of whiteness.'") (citation omitted).
98. See Twine & Gallagher, supra note 35, at 6 (discussing feminist scholars' work that shows how "whiteness and gender shape racialized identities") (citations omitted);
99. cf. Katharine T. Bartlett, Feminist Legal Methods, 103 HARV. L. REV. 829, 874 (1990) (criticizing theories that purport to "isolate gender as a basis for oppression ⋯ [as] reinforcfing] other forms of oppression") (footnote omitted).
100. McDermott & Samson, supra note 49, at 249 ("Poor, gay, or otherwise marginalized whites are likely to have a different experience of their privileged racial identity than are others able to see the direct payoff of white skin privilege.") (citations omitted);
101. see also Alan BdruW, How Gay Stays White and What Kind of White It Stays, in THE MAKING AND UNMAKING OF WHITENESS, supra note 35, at 234 (discussing experiences in which the author began to notice the degree to which gay identity functions as a modality of white identity);
102. Darren Lenard Hutchinson, Out Yet Unseen: A Racial Critique of Gay and Lesbian Legal Theory and Political Discourse, 29 CONN. L. REV. 561, 621-22 (1997) ("Although [several white gay critics] contend that race, class, and gender detract-or are separate-from gay politics, the political vision they prescribe rests firmly upon racial, class, and gender privilege.").
103. See Michelle Fine et al., (In)Secure Times: Constructing White Working-Class Masculinities in the Late 20th Century, 11 GENDER & SOC'Y 52, 52-68 (1997) (discussing how class affects the experience of whiteness for poor and working class whites); Gibson, supra note 56, at 381-87 (discussing same). Indeed, class seems to be the most widely recognized basis on which intraracial disputes over the construction of whiteness are fought. For a further examination of how class historically has played a role in constructing differences between "normal" and marginal white persons, see generally WRAY, supra note 35. For further discussion of the discur-sive methods used to racialize poor whites as "other,"
104. see Annalee Newitz & Matthew Wray, What Is "White Trash"? Stereotypes and Economic Conditions of Poor Whites in the United States, in WHITENESS: A CRITICAL READER 168, 169 (Mike Hill ed., 1997) (discussing discourse about "white trash" and the ways in which class and race tend to bleed into one another).
105. This insight is better illustrated by case law than existing scholarship, as the data on white ethnic identification is mixed. As the cases cited in this discussion show, whites sometimes will use ethnic differences between their members as a reason to distinguish between whites when resources are scarce. See, e.g., Holtz v. Rockefeller & Co., 258 F.3d 62, 72, 84 (2d Cir. 2001) (discussing English-German women's EEOC charge alleging Title VII national origin discrimination based on Irish supervisor's preferential treatment of Irish women); see also cases cited supra note 62 and infra notes 88 & 89. Other data suggests that white ethnic identification may be less significant than other marginal whiteness factors, although this may be because whites (like other racial groups) invoke ethnic identification on a situational basis. See Nagel, supra note 57, at 156 (recognizing whites make different ethnic and racial identification decisions based on social contexts). In particular, Nagel notes that whites may highlight particular European ancestry, Native American ancestry, whiteness, or Americanness, depending on which identity is more relevant in a given social context. Id at 155.
106. This multi-vectored approach to race has also been associated with the "Third Wave" of whiteness studies, as described in sociological theory. Persons who are members of multiple subordinated groups experience whiteness through the prism created by multiple vectors of disadvantage. See Twine & Gallagher, supra note 35, at 6 (explaining that new sociological models see "whiteness as a multiplicity of identities that are historically grounded, class specific, politically manipulated and gendered social locations").
107. As Ruth Frankenberg observes, "whiteness as a site of privilege is not absolute but rather crosscut by a range of other axes of relative advantage and subordination; these do not erase or render irrelevant race privilege, but rather inflect or modify it." Id. at 7 (quoting Frankenberg, supra note 35, at 76).
108. See WRAY, supra note 35, at 5.
109. Id.
110. Id. at 6 (urging the adoption of a unifying, totalizing model of social differentiation). Scholars' concerns about this kind of unifying model are reviewed in more detail in Part IV.
111. The marginal whiteness framework might be perceived by some to invert the propositions that inform intersectionality theory-a framework that calls on us to consider the ways in which discrete vectors of difference combine to create unique forms of disadvantage for persons belonging to multiple socially subordinated identity categories.
112. See Kimberld Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 STAN. L. REV. 1241 (1991) (discussing unique forms of discrimination experienced by black women). Rather than privileging subgroup specificity, marginal whiteness suggests that these discrete vectors of difference can be treated as historically grounded rhetorical strategies used to create and distance outgroups, thereby ensuring the maintenance of privilege for a core group of white males.
113. This observation is not to suggest that white, non-ethnic, middle-class, heterosexual males never experience social stigma or disadvantage. Rather, one obvious additional basis for subordination is religion, which is included in the list of modifiers offered in my initial points outlining the propositions that inform the marginal whiteness model. Also, white males may be subject to stigma based on their perceived failure to comply with normative standards for the default identity they hold. For example, males may be sanctioned because of their failure to "properly" perform traditional masculinity, etc. However, again, this merely further proves the point that the paradigmatic American subject with full rights is always imagined as a white, non-ethnic, middle-class, heterosexual male. It need not matter that this ideal person often does not exist in a particular workplace, as the ideal subject functions in part as a fantasy. One's proximity to or one's imagined embodiment of the ideal standard allows a white worker to use the ideal as a basis for subordinating others.
114. This default assumption is well grounded in American legal history. White, Anglo, middle-class, heterosexual males were the original citizens: their experiences are the template on which outsider groups typically measure whether they have full access to the benefits of society. Only more recently, in the last twenty years, have we seen white males claiming disadvantage compared to women and minorities, typically in circumstances where they allege that their employers are overzealously enforcing formal and informal affirmative action measures. See, e.g., Ricci v. Destefano, 129 S. Ct. 2658 (2009) (discussing white firefighters' challenge to employer's decision to disregard results of promotion exam that appeared to unnecessarily disadvantage minority candidates).
115. Cf. Wendy Brown, Wounded Attachments, 21 POL. THEORY 390, 394 (1993) (noting that social justice advocates focused on equality should consider the degree to which they have limited calls to change by simply calling for the extension of the same parcel of rights enjoyed by white, non-ethnic, middle-class, heterosexual males to all persons regardless of race, gender, or sexual orientation). Brown argues that, by adopting this approach, advocates have given up the opportunity to imagine alternative social arrangements. Id. at 408.
116. Indeed, even the argument that class rather than race should be the basis for affirmative action pits working-class whites against minorities. However, it also points to a recognition among whites that white privilege includes an important class component.
117. Twine & Gallagher, supra note 35, at 6 (noting that "Third Wave Whiteness" studies call attention to the "discursive strategies used to maintain and destabilize white identity and privilege"). By talking about race, sex, and sexual orientation as separate and discrete discrim-inations, we lose the opportunity to talk about how these discriminations work in conjunction to facilitate certain social arrangements. While this way of speaking has been naturalized by various social justice movements organized around particular aspects of social identity, as well as by Title VII itself, it is not the sole way for understanding how discrimination works.
118. See Debbie Storrs, Book Review, 31 CONTEMP. SOC. 570, 571 (2002) (reviewing THE MAKING AND UNMAKING OF WHITENESS, supra note 35). Storrs's review quotes an email from a white student complaining, "[w]e have all the advantages in life in this country, but once again, this isn't our fault. We didn't ask to be born white males." Id; see also Gilborne, supra note 53, at 170 (arguing that white resistance to traditional antiracism education that highlights white privilege is "more than simple 'white defensiveness'" ). Gilborne further explains that whites' complaints about their own relative disadvantage should not be dismissed as a mere "attempt to retain privilege by masquerading as an oppressed group." Id. (citation omitted).
119. Olson, supra note 35, at 392.
120. Sean Brayton, MTV's Jackass: Transgression, Abjection and the Economy of White Masculinity, 16 J. GENDER STUD. 57 (2007).
121. Indeed, cultural events or cultural symbols can trigger these fractures within whiteness. See, e.g., McWilliams v. W. Perm. Hosp., 717 F. Supp. 351,353 (W.D. Pa. 1989) (discussing Irish plaintiffs Title VII national origin discrimination claim based on discriminatory comments by other whites allegedly triggered by St. Patrick's Day holiday); Pinsker v. Joint Dist. No. 28J of Adams & Arapahoe Counties, 735 F.2d 388, 389 (10th Cir. 1984) (discussing Jewish plaintiff's Title VII religious discrimination claim arguing failure to give automatic leave for Jewish holidays compared to leave granted for Christian holidays constituted discrimination); Goldschmidt v. N.Y. State Affordable Hous. Corp., 380 F. Supp. 2d 303, 311 (S.D.N.Y. 2005) (discussing Orthodox-Jewish plaintiffs hostile environment claim based on other employees' disrespectful statements regarding Judaism and supervisor's complaints regarding his absences to observe Jewish holidays).
122. See, e.g., Holtz v. Rockefeller & Co., 258 F.3d 62, 72, 84 (2d Cir. 2001) (discussing English-German women's EEOC charge alleging Title VII national origin discrimination based on Irish supervisor's preferential treatment of Irish women in their twenties in offering hiring and training opportunities). In rejecting her claim, the court noted that she merely complained that "her supervisor and several co-workers formed 'a little clique of Irish people and they would talk about being Irish a lot,' and that she was 'out of the loop.'" Id at 84.
123. See, e.g., Valtchev v. City of New York, No. 06 Civ. 7157, slip op. at 10 (S.D.N.Y. Aug. 31, 2009) (dismissing on summary judgment Bulgarian immigrant plaintiffs national-origin discrimination claim based on other whites' conduct involving alleged accent discrimination); cf. Batyreva v. N.Y. City Dept. of Educ, No. 07 Civ. 4544, 2008 WL 4344583, at 1 (S.D.N.Y. Sept. 18, 2008) (permitting Russian immigrant to bring Title VII claim of national-origin-based and accent-based discrimination regarding supervisors' treatment of the only two Russian immigrant teachers at her school). Even more interesting, sometimes these "marginal" whites believe their discrimination allegations concern race, but the court concludes that they are white and therefore their claims should be classified as Title VII national-origin discrimination claims. See, e.g., Abdulrahim v. Glick, 612 F. Supp. 256, 264 (N.D. Ind. 1985) (holding that Palestinian-heritage Syrian's "failure to hire" claim could not be characterized as a Title VII race discrimination claim because his dispute was against other white employees). The court, however, allowed the plaintiff to bring a Title VII national-origin discrimination claim and a § 1981 color discrimination claim. Id. at 256 (citing Carrillo v. 111. Bell Tel. Co., 538 F. Supp. 793 (N.D. 111. 1982).
124. See BONILLA-SILVA, supra note 39, at 133 (noting that working class whites find that white privilege may make them relatively better off in some circumstances than many of their minority comparators, but they also recognize that they do not have access to the full parcel of benefits associated with white privilege).
125. The above reference to "overtures" to discriminate refers to explicit overtures as well as the arguably more common, subtle invitations to discriminate, which often are articulated in race-neutral terms. While subtle invitations occur quite frequently, a review of Title VII cases indicates that explicit overtures also continue to cause problems. See, e.g., Bermudez v. TRC Holdings, Inc., 138 F.3d 1176 (7th Cir. 1998) (discussing explicit overtures made to white employee to discriminate based on race).
126. Richard H. McAdams, Cooperation and Conflict: The Economics of Group Status Production and Race Discrimination, 108 HARV. L. REV. 1003, 1029 n.95, 1030 (1995). McAdams states, "Groups use intra-group status rewards as a non-material means of gaining material sacrifice from members ⋯." Id. at 1007.
127. Id. at 1042-48.
128. McAdams explains that "[a]bsent the desire for intra-group status, selfish individuals would not make the material sacrifices that discrimination requires." Id. at 1007-08.
129. The paradigmatic example of this phenomenon is one in which a white person accepts a lower bid on her house from a white buyer, instead of accepting a higher bid from a black buyer. The white buyer who does so takes this action in expectation that she will receive intra-group esteem or "status" payments from other whites. See id. at 1007.
130. See id. at 1056-58. McAdams believes that race-based status concerns have endured, but he also recognizes that the language and rationales offered to support them have likely changed because of the strength of contemporary antidiscrimination norms. See id. at 1069, 1078 n.302.
131. The decision to integrate a rational actor model created by a law and economics scholar into my analysis of racial anxiety may seem strange, particularly because the concept of marginal whiteness draws its primary insights from sociology and critical theory. The boundary between McAdams's analysis and sociological discussions of race, however, is more porous than it might seem. Sociologist Lawrence Bobo, relying on the work of Herbert Blumer, posits that racism is produced by, and engenders, group status conflicts over resources. Bobo, supra note 64, at 456-57. McAdams uses Bobo's insights to supplement the traditional rational actor model used to describe discrimination. See McAdams, supra note 90, at 1044 n.160, 1056 & n.214. He explains how individuals factor in irrational status benefits derived from racial identity into their cost-benefit calculations when making decisions. See id. In the present discussion, McAdams's granular analysis of the group status calculations individual whites make when asked to discriminate provides a useful framework for explaining how and why the cost-benefit analysis that structures whites' relationships to white privilege has changed. His analysis provides a framework for understanding why marginal whites have more ambivalence about whiteness and white privilege in an era shaped by antidiscrimination law.
132. Discriminating whites also face challenges in dealing with "race traitors," whites who proactively seek to disrupt white privilege. See RACE TRAITOR (Noel Ignatiev & John Garvey eds., 1996). The discriminating white may fear that "progressive" or "race traitor" whites will formally or informally sanction him if they perceive that he has engaged in explicitly prejudiced behavior. Race traitors also compromise discriminating whites' ability to sanction and ostracize nonconforming whites, as whites that refuse to maintain white privilege can always find other communities of whites outside of the workplace that will reward them for nondiscriminatory behavior. Indeed, one of the challenges the discriminating white faces is determining whether the workplace contains the critical mass of whites necessary for an intra-group esteem system to function.
133. Laura Smith et al., The Territory Ahead for Multiracial Competence: The "Spinning" of Racism, 39 PROF'L PSYCHOL.: RES. & PRAC. 337 (2008).
134. Carole Marks, The Urban Underclass, 17 ANN. REV. Soc. 445, 460-61 (1991) (describing ideological work performed by the terms "culture of poverty" and "urban poor," and their role as coded racial signifiers).
135. The references used here (for example, "culture of poverty") have been used so frequently in conjunction with African Americans that they may function much more effectively than other proxies. Their existence suggests that there may be a well-established lexicon of coded references that whites use to signal to each other regarding their biased attitudes but also allow them to avoid making explicitly racist comments. However, because many whites want to avoid appearing explicitly racist, as a term becomes more established as a discriminatory reference pertaining to a particular minority group, it becomes less useful as a coded form of communication. Consequently, discriminating whites must periodically find new proxies to describe unwanted groups, further compromising their ability to communicate with one another.
136. Charles Jaret & Donald C. Reitzes, The Importance of Racial-Ethnic Identity and Social Setting for Blacks, Whites, and Multiracials, 42 Soc. PERSP. 711, 711 (1999) (noting that contemporary studies on whiteness "have uncovered a mix of pride, denial, and ambivalence in the way people incorporate a sense of being white into their self-concepts"); see also Twine & Gallagher, supra note 35, at 7 (noting that "white privilege can be at the same time a taken-for-granted entitlement, a desired social status, a perceived source of victimization and a tenuous situational identity").
137. This proposition requires further discussion. The easiest example of this phenomenon is the experience of a mixed-race person who identifies as white. His claim of whiteness may be accepted at work, but may be denied when he visits his employer's Scarsdale neighborhood and meets the employer's friends. Because the intra-group esteem system depends on meeting participants' expectations and providing consistent payoffs, these inconsistent results pose a problem.
138. A biracial Asian interviewee in the Miville Study, presumably with racially ambiguous phenotypic characteristics, recounts a time when he submitted an application for a job but was not called for an interview
139. A biracial Asian interviewee in the Miville Study, presumably with racially ambiguous phenotypic characteristics, recounts a time when he submitted an application for a job but was not called for an interview. Marie L. Miville et al., Chameleon Changes: An Exploration of Racial Identity Themes of Multiracial People, 52 J. COUNSELING PSYCH. 507, 509 (2005). When he stopped by his potential employer's office, the hiring administrator immediately offered him the job. Id. He quickly deduced that he had not been called for an interview because of his Asian-sounding name. Id. He recalled that he said to her, "I've never said my name. My last name is [⋯]." She looked at me very confused. I said, "I am the same person that turned in the application in [sic] twice before now. So, obviously to me if you're looking for a person hired [sic] for this long, then you didn't call me back for the simple acknowledgment of my name. You thought that, maybe you thought that I was a minority, maybe I was Japanese, or Asian that could not speak English well, maybe you are just discriminating against [minorities] in hiring practices." So I said, "Thank you for the job, but you know, here is the opportunity for you to learn that not everybody looks the same." And I just walked out. Id.
140. Some would even argue that these marginal whites are more prone to embrace antidiscrimination work than other persons. Jennifer Eichstedt contends that "differential experiences of and relationships to whiteness strongly impacts ⋯ who is more likely to become [an] antiracism activist[⋯]," pointing to the high representation of Jews in antidiscrimination groups as well as strong antidiscrimination perspectives of white gay persons interviewed in her fieldwork. See Eichstedt, supra note 31, at 450; see also BONILLA-SILVA, supra note 39, at 146 (noting that racial progressives often use their own experiences of discrimination as a frame to understand the discrimination experiences of others
141. See generally DAVID R. ROEDIGER, THE WAGES OF WHITENESS: RACE AND THE MAKING OF THE AMERICAN WORKING CLASS 133-40 (1st ed. 1991). Most historical accounts tend to emphasize the benefits that whites enjoyed at the expense of blacks during periods when white privilege played a more dominant role in American social relations, but there is also evidence showing that some whites were forced to make costly sacrifices during this period to maintain the privileged status of whiteness.
142. See, e.g., GEORGE LIPSITZ, THE POSSESSIVE INVESTMENT IN WHITENESS 26 (1998) (acknowledging the burden lower-income whites endured in the pre-civil rights era by selling their homes for lower amounts to avoid having minorities move into white neighborhoods);
143. DAVID R. ROEDIGER, TOWARD THE ABOLITION OF WHITENESS 29 (1994) (noting that white union workers engaged in lengthy "hate strikes," in response to integration measures or the promotion of black workers, resulting in significant lost wages).
144. RICHARD THOMPSON FORD, THE RACE CARD: HOW BLUFFING ABOUT BIAS MAKES RACE RELATIONS WORSE 78-79 (2008) (discussing the benefits of "ritual sadism" that poor whites enjoyed under Jim Crow as they routinely watched blacks perform rites of social subordination in public settings).
145. Troy Duster, The "Morphing" Properties of Whiteness, in THE MAKING AND UNMAKING OF WHITENESS, supra note 35, at 113,114 (discussing some of the current benefits of whiteness as securing easier access to loans, benefiting from regular service at restaurants, and enjoying the ability to drive without fear of being stopped on suspicion of criminal activity). Many authors working in Critical White Studies explore these and other benefits in more detail. However, these scholars also recognize that contemporary whites are likely to regard the benefits associated with white privilege as something to which they are automatically entitled, rather than special privileges for which they should be grateful. See, e.g., Mcintosh, supra note 45; see also Olson, supra note 35, at 392 (discussing contemporary whites' tendency to undervalue white privilege). This sense of passive entitlement, I argue, affects many contemporary whites' willingness to assist in maintaining white privilege.
146. McAdams argues that "[wjhites with the most limited opportunities for producing status will predictably be prepared to engage in more discrimination, because lowering the status of others is one of their last remaining mechanisms of status production." McAdams, supra note 90, at 1055 (footnote omitted). Indeed, this view has functioned as a common-sense assumption about white working-class persons' attitudes. See BONILLA-SILVA, supra note 39, at 133 (noting problem and critiquing assumptions about working-class whites' attitudes). The prevalence of this view has lead Bonilla-Silva and other scholars to conduct research that rebuts the claim that working-class whites are more likely than middle-class or wealthy whites to hold discriminatory attitudes. See, e.g., id.
147. See BONILLA-SILVA, supra note 39, at 132, 144 (acknowledging the "common sense view" that working-class whites are more racist than higher-status whites, but noting that 1997 and 1998 surveys indicate that young working-class women were the most likely to have "racially progressive attitudes").
148. Again, many whites, particularly those that became adults during the civil rights movement, will find that their attitudes are better described by existing civil rights-influenced models of whites' interests.
149. See McAdams, supra note 90, at 1049.
150. This analysis utilizes a modified anthropological approach, as it does not rely on first-person participant interviews. In place of interviews, the analysis examines litigants' interests as reflected by the claims they initially articulate when they petition for relief, the pressures exerted on those claims by the norms that inform the statutes (or doctrine) they use to frame their claims, and the resulting messages the legal system communicates to litigants as a result of this process. For a discussion of the ways in which legal scholars have attempted to use anthropological methods to enrich their scholarship,
151. see Annelise Riles, Representing In-Between: Law, Anthropology, and the Rhetoric of Interdisciplinarity, 1994 U. III. L. REV. 597 (1994).
152. 409 U.S. 205, 209 (1972). Indeed, the status of interracial solidarity claims under Title VII is still in question. At present, the Circuits are divided. The Fourth, Fifth, Seventh, and Tenth Circuits have determined that Title VII does not permit interracial solidarity claims. See, e.g., Pinsker v. Joint Dist. No. 28J of Adams & Arapahoe Counties, 735 F.2d 388 (10th Cir. 1984); EEOC v. St. Anne's Hosp., 664 F.2d 128 (7th Cir. 1981); EEOC v. Miss. Coll., 626 F.2d 477,483 (5th Cir. 1980); Childress v. City of Richmond, 907 F. Supp. 934 (E.D. Va. 1995), affd in part, rev'd in part, 134 F.3d 1205 (4th Cir. 1998). Only the Sixth, Eighth, and Ninth Circuits have permitted these claims to go forward. See, e.g., Clayton v. White Hall Sch. Dist., 778 F.2d 457, 459-60 (8th Cir. 1985); EEOC v. Bailey Co., 563 F.2d 439,453-54 (6th Cir. 1977); Trafficante v. Metro. Life Ins. Co., 446 F.2d 1158, 1161-62 (9th Cir. 1971), rev'd, 409 U.S. 205 (1972). Therefore, there are only a small number of claims available for analysis. This Article explains, however, that the courts' exclusive reliance on certain civil rights norms to interpret the scope of interracial solidarity claims has likely stunted the growth of this class of claims.
153. Id.
154. Id.
155. Id. at 208-09. These arguments were treated only briefly once the case was presented for Supreme Court review. For more detailed exploration of these standing issues, see Trafficante v. Metro. Life Ins. Co., 446 F.2d 1158,1161-62 (9th Cir. 1971), rev'd, 409 U.S. 205 (1972).
156. Trafficante, 409 U.S. at 208-09.
157. Id. at 210.
158. Wat210-12.
159. Id. at 210-11.
160. Id. at 209-11.
161. See, e.g., Joseph C. Feldman, Standing and Delivering on Title VII 's Promises: White Employees' Ability to Sue Employers for Discrimination Against Nonwhites, 25 N.Y.U. REV. L. & Soc. CHANGE 569 (1999) (recognizing the value of the doctrine and calling for its expansion); Zatz, supra note 8 (applauding the creation of the doctrine and offering guidelines for its expansion). But see Lee, supra note 19 (outlining the doctrine's potential distortion effects).
162. Trafficante, 409 U.S. at 209-11.
163. See, e.g., Childress v. City of Richmond, 907 F. Supp. 934, 938 (E.D. Va. 1995), affid in part, rev'din part, 134 F.3d 1205 (4th Cir. 1998).
164. Trafficante, 409 U.S. at 209.
165. Id. at 208-09; see, e.g., Sidari v. Orleans County, 174 F.R.D. 275,284-85 (W.D.N.Y. 1996). A careful read of the Sidari court's opinion shows that it cites the Supreme Court's Trqfficante decision as authority, but it is relying on the Court's recitation of the allegations in plaintiffs' complaint (rather than the actual holding in the case) to outline the potential bases for injury under interracial association doctrine. Id. at 284.
166. Waters v. Heublein, Inc., 547 F.2d 466, 469 (9th Cir. 1976). A prime example of this analysis is provided in EEOC v. Bailey Co., 563 F.2d 439, 453-54 (6th Cir. 1977). The court explained: [T]he purposes and effects of Title VII in the employment field are identical to the purposes and effects of Title VIII in the housing field⋯ . The provision for such opportunities and the ending of discrimination declared unlawful by Titles VII and VIII will affect housing patterns and employment practices and thus increase interracial contact in both home and work environments. The loss of benefits from the lack of interracial associations is as real at work as it is at home because "interpersonal contacts" occur in both places. Id. (citation omitted). in part, rev'din part, 134 F.3d 1205 (4th Cir. 1998).
167. Waters v. Heublein, 547 F.2d at 469 ("The possibilities of advantageous personal, professional or business contacts are certainly as great at work as at home. The benefits of interracial harmony are as great in either locale."); see also Nat'l Org. for Women v. Sperry Rand Corp., 457 F. Supp. 1338, 1345 (D. Conn. 1978).
168. Sperry, 457 F. Supp. at 1345.
169. Bailey Co., 563 F.2d at 454 (recognizing that the EEOC interprets Title VII to "confer upon every employee the right to a working environment free from unlawful employment discrimination," which permits whites to sue based on discrimination directed at blacks). The court declined to establish limits on the scope of this right. Id.
170. See Bailey Co., 563 F.2d 439. 131 Zatz, supra note 7, at 89-90.
171. Clayton's claim was premised on the fact that the district had not enforced its policy restricting use of the residency exemption until a black employee requested the exemption and the district needed to invoke the policy to prevent him from using the benefit. Clayton v. White Hall Sch. Dist, 778 F.2d 457, 459 (8th Cir. 1985).
172. Id.
173. Id.
174. Id.
175. Clayton v. White Hall Sch. Dist., 875 F.2d 676, 678 (8th Or. 1989) (summarizing district court decision); Clayton, 778 F.2d at 460 (noting economic on was not within the zone of interests protected by the statute).
176. 659 F.2d 690 (5th Cir. 1981) (per curiam).
177. Id. at 691-92.
178. Id. at 692 n.2.
179. Id.
180. Id.
181. Id.
182. See, e.g., DONALD TOMASKOVIC-DEVEY, GENDER AND RACIAL INEQUALITY AT WORK: THE SOURCE AND CONSEQUENCES OF JOB SEGREGATION 3-4 (1993) (noting that employers tend to devalue jobs associated with or dominated by minority workers and wages tend to fall); Julie A. Kmec, Minority Job Concentration and Wages, 50 Soc. PROBS. 38 (2003) (same). Kmec's research revealed similarly skilled jobs dominated by black and Latino workers paid 17 to 20 percent less than jobs dominated by whites. Her research also showed that the race of one's coworker was more predictive of an employee's relative wage level than her own race. Id. at 54-56 (stating "lower wages in minority-dominated jobs extend to all workers, not just to subordinate group workers") (emphasis in original).
183. Some may question whether marginal whites should be granted standing to bring disparate impact claims as well as claims based on disparate treatment. Because the scenarios anticipated in this Section of the discussion involve positions that are about to become minority dominated or are in the process of becoming minority dominated, the facts will not lend themselves well to a disparate impact analysis. However, if the facts of a case could support a disparate impact analysis, some would argue that Title VII's overall purpose would be served if marginal whites were eligible to bring these claims as well.
184. This assertion is based on the basic doctrinal structure articulated in McDonnell Douglas, allowing an employer to rebut an employee's proof establishing a prima facie case of discrimination with evidence that its decision rested on a legitimate non-discriminatory business reason. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). An employee may alternatively
185. If they fail to locate sufficient evidence of discriminatory animus to bring a disparate treatment claim, marginal-white plaintiffs may in certain circumstances turn to Title VII disparate impact doctrine, a separate area of Title VII law that addresses employer policies that are not specifically motivated by discriminatory animus, but in effect impose unjustifiably heavier burdens on minority employees. Disparate impact claims are arguably even harder to establish than disparate treatment claims, as they require plaintiffs to meet a rather tough evidentiary standard and involve more complicated evidentiary questions involving statistical proof.
186. See, e.g., sources cited supra note 69.
187. See, e.g., Paul Weiler, The Wages of Sex: The Uses and Limits of Comparable Worth, 99 HARV. L. REV. 1728, 1763-70 (1986) (noting that comparable worth cases inevitably rest on subjective value judgments and questioning whether these comparisons can fairly integrate employer's real world trade offs and calculations regarding how to attract labor to less attractive jobs)
188. For a discussion of the ways in which a minority employee can use Title VII to challenge discriminatory wage and benefit structures when the pool of workers for his job has increasingly become minority dominated, or is dominated by a particular racial or ethnic group, see generally Leticia M. Saucedo, The Browning of the American Workplace: Protecting Workers in Increasingly Latino-ted Occupations, 80 NOTRE DAME L. REV. 303 (2004).
189. EEOC v. Mississippi College, 626 F.2d 477,483 (5th Cir. 1980).
190. Interracial solidarity cases based on the idea that minority-targeted discrimination creates a "hostile environment" for nontargets raise distinct concerns, but these issues are not the primary focus of this discussion. Certainly, there is psychological research to support the recognition of such claims. See K. S. Douglas Low et al., The Experiences of Bystanders of Workplace Ethnic Harassment, 37 J. APPLIED SOC. PSYCHOL. 2261 (2007) (explaining that whites are often psychologically injured by discrimination directed at minorities). There are risks, however, about tainting the workplace for minority workers when one allows whites to bring a claim alleging that the discriminatory treatment of others caused them a secondary injury. If the primary target was not offended, the argument goes, why should we be concerned about secondary targets? The practical concern with hostile-environment interracial solidarity claims is that white claimants may then politicize the workplace in a manner that ultimately does not inure to the benefit of the alleged minority targets. These problems, however, are largely eliminated by examining these hostile environment cases as "racial labor cases," as the "racial labor" construct shows why these seemingly indirect comments should analytically be treated as directed at the complaining white employee.
191. See Golleher v. Aerospace Dist. Lodge 837, 122 F. Supp. 2d 1053 (E.D. Mo. 2000) (allowing sex discrimination plaintiff to proceed to trial on interracial association claim despite thin allegations of harm because her allegations could be construed to allege injury from lost associational opportunities stemming from a racially hostile workplace environment). Even cases where the sole allegation rests on interracial association doctrine feature plaintiffs with tenuous claims regarding lost associational opportunities. See, e.g., Stewart v. Harmon, 675 F.2d 846, 849-50 (7th Cir. 1982) (allowing plaintiff to proceed with interracial solidarity claim based on allegations of lost associational opportunities). Mississippi College, 626 F.2d at 477. Id at480n.2.
192. Mississippi College, 626 F.2d at 477.
193. Id. at480n.2.
194. See id at 483.
195. See id. at 479 (discussing Mississippi College's hiring policies).
196. See, e.g., Sidari v. Orleans County, 174 F.R.D. 275, 284 (W.D.N.Y. 1996)(expressing concern that the plaintiff was attempting to prove his primary Title VII claim based onreligion and national origin by proving race discrimination against someone else).
197. See, e.g., Lee, supra note 19, at 561 (arguing that extending standing to white plaintiffs does not empower minority plaintiffs, reestablishes whiteness as the objective frame for establishing whether harm has occurred, and generally favors the "powerful over the powerless"). and national origin by proving race discrimination against someone else).
198. See, e.g., Lee, supra note 19, at 561 (arguing that extending standing to white plaintiffs does not empower minority plaintiffs, reestablishes whiteness as the objective frame for establishing whether harm has occurred, and generally favors the "powerful over the powerless").
199. Evidence suggests the plaintiff-employee may be right in her assessment. See Jacqueline A. Gilbert & Millicent Lownes-Jackson, Blacks, Whites and the New Prejudice: Does Aversive Racism Impact Employee Assessment?, 35 J. APPLIED SOC. PSYCHOL. 1540 (2005). The authors explain that studies have found that a key factor determining the quality of supervisor-subordinate ties is relational demography, or the degree to which individuals are similar in their ' demographic attributes (e.g., gender, race, age). Demographic attributes are a proxy for attitudinal homophily, or the perception that others are similar in terms of values, attitudes, and experiences. Id. at 1541 (citation omitted) (emphasis in original).
200. Clark Freshman, Whatever Happened to Anti-Semitism? How Social Science Theories Identify Discrimination and Promote Coalitions Between "Different" Minorities, 85 CORNELL L. REV. 313 (2000) (arguing for the utility of a theory of "generalized discrimination" that would allow a litigant to raise evidence of discrimination against other outgroup members by the majority group to bolster her claim that she was discriminated against based on "difference" rather than particular animus towards her racial or ethnic group); Clark Freshman, Beyond Atomized Discrimination: Use of Acts of Discrimination Against "Other" Minorities to Prove Discriminatory Motivation Under Federal Employment Law, 43 STAN. L. REV. 241 (1990).
201. Ian Ayres has done fieldwork studying white male car salesmen's behavior that illustrates this concept of general outgroup discrimination, and layers or levels of biased treatment for different outgroup constituencies. See IAN AYRES, PERVASIVE PREJUDICE?: UNCONVENTIONAL EVIDENCE OF RACE AND GENDER DISCRIMINATION 61-73 (2001).
202. 174 F.R.D. 275,278 (W.D.N. Y. 1996).
203. Id.
204. Id.
205. Id.
206. Sidari v. Orleans County, 2000 WL 33407343, *4 (W.D.N.Y. 2000) ("DANS" is an acronym that stands for "dum-ass nigger.").
207. 174 F.R.D. at 278.
208. Id. at 284.
209. Id. at 283-84. The court recognized this essential point in Sidari's subsequent appeal of its decision, deciding this was one of the limited circumstances where linkages between different forms of discrimination should be recognized. Sidari, 2000 WL 33407343 at *4.
210. This linkage phenomenon can even be seen in cases that do not concern interracial solidarity claims. See, e.g., EEOC v. St. Anne's Hosp., 664 F.2d 128, 129-30 (7th Cir. 1981) (discussing retaliation claim brought by a Jewish hospital worker alleging she was subject to anti-Semitic and racist comments after she hired the first black worker at the hospital where she was employed).
211. See, e.g., Childress v. City of Richmond, 907 F. Supp. 934, 938-10 (E.D. Va. 1995), ajfd in part, rev'd in part, 134 F.3d 1205 (4th Cir. 1998) (discussing white male plaintiffs' interracial solidarity claim alleging that their supervisor required them to listen to racist jokes and comments about minority and female co-workers). The biased supervisor did not actually ask the workers to also engage in discrimination, but the workers concluded that his behavior compromised the collegial atmosphere in the workplace. Id. at 938.
212. 138 F.3d 1176 (7th Cir. 1998).
213. See id. at 1179-80.
214. Id. at 1180.
215. Id.
216. Id. at 1181.
217. Id. at 1180 (citing Stewart v. Hannon, 675 F.2d 846, 850 (7th Cir. 1982)).
218. Id.
219. See id. at 1180.
220. See id.
221. Id. at 1181.
222. See id. at 1180.
223. See id.
224. See id. at 1180-81.
225. Id. (emphasis added).
226. See Golleher v. Aerospace Dist. Lodge 837,1.A.M.A.W. (E.D. Mo. 2000) (allowing a white plaintiff to avoid summary solidarity claim based on testimony that workplace verbal discrimination against blacks "deeply offended" her and caused her to "suffer[⋯] emotional distress").
227. See Zatz, supra note 7, at 63.
228. The continuing strength of his doctrinal analysis, to the degree it is premised on the prohibition of gender-based stereotyping in Price Waterhouse v. Hopkins, is open to question in light of more recent grooming code cases decided at the circuit level that allow employers to enforce grooming codes that require compliance with sex-based stereotypes regarding physical appearance. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (holding that a plaintiff could bring a Title VII sex-discrimination claim based upon sex stereotyping); cf. Jespersen v. Harrah's Operating Co., 444 F.3d 1106, 1111 (9th Cir. 2006) (rejecting plaintiffs sex stereotyping challenge to enforcement of employer grooming code that imposed arguably stereotypical standards of femininity on female employees). The court concluded that the policy was not discriminatory because it did not impose "unequal burdens" on female and male employees. Id at 1109-11; see also Bjornson v. Dave Smith Motors/Frontier Leasing & Sales, No. CV 04-0285-N-MHW, 2007 WL 2705585, at *10 (D. Idaho Sep. 12, 2007) (finding employer's disciplinary action against employee for failure to wear hosiery and nail polish did not violate Title VII because there was no proof of "unequal burden" imposed on female as compared to male employees).
229. Some scholars analyze the grooming code cases as a separate line of doctrine from the sex stereotyping cases, arguing that the grooming cases merely permit different grooming standards for different genders as long as each gender bears "equal burdens" in achieving compliance. Julie A. Seaman, The Peahen's Tale, or Dressing Our Parts at Work, 14 DUKE J. GENDER L. & POL'Y 423, 426-27 (2007) (discussing prevalence of view). However, this analysis fails to consider the degree to which Jesperson also stands for the proposition that an employer may enforce stereotypical understandings regarding the appearance of each gender and sanction employees for their failure to comply with that standard. Jespersen, 444 F.3d at 1115 (Pregerson, J., dissenting). If an employer created different charm and etiquette standards for male and female employees, standards that imposed equal burdens on each sex, but was based on stereotypical gender norms, would this raise Title VII concerns post-Jespersonl Would Ann Hopkins' employer today be in a better position if it had strict grooming codes and standards for its male and female employees, and it merely sanctioned Hopkins for her failure to conform to those standards?
230. Rich, supra note 57, at 1139 n.12 (identifying scholars using race-performance theories).
231. Id. at 1176-86 (discussing the role performance theory can play in helping us understand workplace race discrimination disputes).
232. Id. at 1164 (discussing active race- and ethnicity-based performance); id. at 1166, 1259 (discussing necessary limits on protection afforded to active or passive race performance behaviors).
233. Id. at 1161-63 (discussing justifications for affording antidiscrimination protections when an employee engages in passive race- or ethnicity-based performance). These cases typically involve employees who have passively acquired ethnically marked speaking styles.
234. Id. at 1176-86 (laying out theory of race performance).
235. Id. at 1258-59 (noting that the expression of prejudice may be regarded as a form of race performance). However, I explain that it is not a kind of "race performance" the law should recognize, as "an employee's right to engage in race/ethnicity performance ends when she begins to trample on the interests [or rights] of other employees." Id. at 1259.
236. Id. at 1163.
237. One could argue that the antidiscrimination regime I proposed in my early work is actually hostile to discriminatory speech, because it refuses to treat any discriminatory conduct as a protected kind of race-performance practice. However, the antidiscrimination regime I outlined in Performing Racial and Ethnic Identity is actually far more agnostic than this claim makes it appear. See Rich, supra note 57. The regime I have outlined focuses solely on employee's conduct, and allows an employer to sanction or prohibit a specific practice when that practice has actually injured or threatens to injure another worker. Speech can become conduct when it is deployed in a particular fashion (i.e. harassment), for example if it is intended to drive another worker from continuing her employment at a particular workplace. Instead, broad protection of nondiscriminatory performances of whiteness and a crackdown on discriminatory performances invite the courts into a quagmire of determinations about when a form of white identity performance counts as discrimination. For example, how should a court regard a black employee's Title VII hostile environment claim based on a white employee's display of a Klu Klux Klan tattoo, or a white employee alleging that he is threatened by a black employee's tattoo of Lewis Farrakhan? Are these "stereotypical" performances of white and black identity that Title VII should prohibit? I would argue that the more important consideration for a hostile environment analysis would be the way that these tattoos are used: either to intimidate workers, or as passive expressions of a political viewpoint. Title VII should be concerned with the former, not the latter.
238. Some would disagree, arguing that antidiscrimination law should facilitate the dissolution of whiteness or attempt to facilitate whites' efforts to forge a progressive account of white identity. See, e.g., David Wellman, Book Review, 30 CONTEMP. SOC. 339, 3390 (2001) (reviewing WHITE REIGN: DEPLOYING WHITENESS IN AMERICA (Joe L. Kincheloe et al. eds., 1998))(describing some theorists' efforts to create a "positive, proud, attractive white anti-racist identity that is empowered to travel in and out of various racial/ethnic circles with confidence and empathy" but worrying that such efforts simply refocus attention on whites without sufficiently attending to the continuing problem of inequality) (quoting WHITE REIGN); cf. Lawrence J. Oliver, The Current Dialogue on Whiteness Studies, 25 CALLALOO 1272, 1274-76 (2002) (describing the New Abolitionists call for the eradication of whiteness as a necessary condition for eliminating racial inequality); see also Olson, supra note 35, at 386 (arguing that dissolution is required).
239. A person may feel he is "expressing" his belief in white supremacy by refusing to refer blacks to a particular employer. Prohibiting this action presents no problems from a First Amendment perspective. Aside from its material effect in shifting resources, it has no significant expressive dimension. In contrast, a Southern white's decision to wear a cowboy hat to express a white identity has a significant expressive component, but no immediate material repercussions
240. 283⋯supra note 22, at 2024.
241. Id. at 2024-25.
242. Id at 2050.
243. Ricci v. DeStefano, 129 S. Ct. 2658 (2009), opened a public conversation about when it is appropriate for an employer to take affirmative steps to avoid the anticipated racially discrim-inatory effects of a promotion test, and how much protection antidiscrimination law should provide to employers who engage in prophylatic measures that arguably affect the established expectations of employees. Again, although the decision has technical repercussions for the understanding of Title VII disparate impact claims, the basic normative questions that informed the resolution of the dispute were both well reported and vigorously debated by American media outlets.
244. The Lilly Ledbetter Fair Pay Act of 2009, Pub L. No. 111-2, 123 Stat. 5, amended Title VII to ensure that the statute of limitations for equal pay claims would run from the date of the last paychecK, rather than when the discriminatory pay arrangements were set by the employer-the rule the Supreme Court established in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007). Although the statute of limitations concerns were not a part of public discussion, the basic normative commitment behind the statute, affirming the commitment to equal pay for women and a fair opportunity to litigate their claims, did become a part of public conversation. 288⋯See, e.g., Posting of Valerie Jarrett to The White House Blog, http://www.whitehouse.gov/blog/2010/ 07/20/conversationcontinues-equal-pay-and-workplace-flexibility (July 20,2010,11:33 EST).
245. Camille Gear Rich, Decline to State: Diversity Talk and the American Law Student, 18 S. CAL. REV. L. & Soc. JUST. 539, 563-65 (2009) (defining the concept of racial fatigue and discussing challenges of engaging racially fatigued students in discussions about race).
246. Spanierman & Heppner,
247. ⋯supra note 36, at 250-51.
248. Lawrence Bobo et al., Laissez-Faire Racism: The Crystallization of a Kinder, Gentler Antiblack Ideology, in RACIAL ATTITUDES IN THE 1990s: CONTINUITY AND CHANGE 15, 23-25 (Steven A. Tuch & Jack K. Martin eds., 1997).
249. ⋯supra note 208 (noting that most whites report holding racially progressive egalitarian values and identify racism as a social harm). This attitude shift should not be read to mean that these whites are incapable of engaging in discrimination, only that many whites currently believe that inequality is a natural consequence of market vicissitudes or minorities' disadvantaging cultural practices. Whites generally tend to use race-neutral rationales to explain away allegations of bias. Bobo, supra note 208, at 21-22 (describing the rise of laissez-faire racism); Michael Hughes, Symbolic Racism, Old-Fashioned Racism, and Whites' Opposition to Affirmative Action, in RACIAL ATTITUDES IN THE 1990s,
250. See, e.g., Smith et al.
251. ⋯supra note 97, at 342.
252. Id.
253. See Matthew P. Winslow, Reactions to the Imputation of Prejudice, 26 BASIC & APPLIED SOC. PSYCHOL. 289,296 (2004).
254. Smith et al.
255. 301⋯supra note 97, at 342-43 (noting that many whites treat other whites' racist comments and jokes as just "a matter of opinion").
256. TREPAGNIER. 303⋯supra note 24, at 47-62 (describing reasons for well-meaning whites' passivity towards racism); Claire M. Renzetti, All Things to All People or Nothing to Some: Justice, Diversity, and Democracy in Sociological Societies, 54 Soc. PROBLEMS 161 (2007); Smith et al.
257. 303⋯supra note 24, at 47-62 (describing reasons for well-meaning whites' passivity towards racism); Claire M. Renzetti, All Things to All People or Nothing to Some: Justice, Diversity, and Democracy in Sociological Societies, 54 Soc. PROBLEMS 161 (2007); Smith et al.,
258. See BONILLA-SILVA
259. 306⋯supra note 39, at 43-47. Indeed, many whites, fearing discomfort or mischaracterization, will avoid people of color, discussions of race, and, most importantly, will avoid confronting friends and associates when they engage in discrimination. See TREPAGNIER,
260. ⋯supra note 24, at 62; Smith et al., supra note 97, at 337, 342 (noting whites' tendency to dismiss associates' racism as "a matter of opinion")
261. See, e.g., TREPAGNIER, supra note 24, at 49 (explaining that passive whites' failure to react to discrimination may be read by discriminating whites as acceptance or encouragement and that once a pattern of passivity is set the passive actor is less likely to react to discrimination in the future). Indeed, some scholars have even noted that displays of discriminatory behavior by one white subject tend to increase the discriminatory behavior of others.
262. ⋯See, e.g., Fletcher A. Blanchard et al., Condemning and Condoning Racism: A Social Context Approach to Interracial Settings, 79 J. OF APPLIED PSYCHOL. 993 (1994).
263. As long as whites concentrate on Jim-Crow-style explicit racism, they can avoid the more difficult questions raised in allegations of subtle racial bias expressed in cross-racial interactions. See Madonna G. Constantine & Derald Wing Sue, Perceptions of Racial Microaggressions Among Black Supervisees in Cross-Racial Dyads, 54 J. COUNSELING PSYCHOL.
264. 311⋯148 (2007) (discussing reluctance of whites to label ambiguous events as discriminatory);
265. Russell K. Robinson, Perceptual Segregation, 108 COLUM. L. REV. 1093,1098-99 (2008) (same).
266. Derald Wing Sue et al., Racial Microaggressions in Everyday Life, 62 AM. PSYCHOLOGIST 271, 275, 277-79 (2007) (describing different interpretations of whites and minorities when interpreting arguably antagonistic cross-racial interactions).
267. Feagin J.R., et al White Racism: The Basics 240-42 (2d ed. 2001) (describing "talking back" to racism as "an act of courage, an act of risk" that requires one to defy cultural norms and sometimes speak up about racism in seemingly ambiguous and subtle situations)
268. See Nyla R. Branscombe, Michael T. Schmitt & Kristen Schiffhauer, Racial Attitudes in Response to Thoughts of White Privilege, 37 EUR. J. OF Soc. PSYCHOL. 203,211-12 (2006). Of course, some whites still react constructively to discussions of white privilege. Id. at 212. This observation is consistent with propositions that Branscombe and Schmitt advanced in their earlier work on white privilege. See Adam A. Powell, Nyla R. Branscombe & Michael T. Schmitt, Inequality as Ingroup Privilege or Outgroup Disadvantage: The Impact of Group Focus on Collective Guilt and Interracial Attitudes, 31 PERSONALITY & Soc. PSYCHOL. BULL. 508 (2005). They believed that honest interrogation of white privilege and exploration of collective guilt about whites' misdeeds would make whites more racially progressive and encourage them to hold anti-racist attitudes. Id.
269. See generally THOMAS M. SHAPIRO, THE HIDDEN COST OF BEING AFRICAN AMERICAN: How WEALTH PERPETUATES INEQUALITY (2004) (describing the role whites' accumulated wealth plays in maintaining racial inequality);
270. Daria Roithmayr, Locked in Segregation, 12 VA. J. Soc. POL'Y & L. 197 (2004) (describing cumulative effects of racist homeowner associations on present-day patterns of residential segregation). Some scholars have argued that whites should not in fact be treated as being responsible for these conditions, and that we now have "racism without racists." See FORD, supra note 105, at 31-32.
271. Branscombe, Schmitt & Schiffhauer
272. ⋯supra note 219, at 204.
273. Id. at 204-05; Swim & Miller
274. ⋯supra note 36, at 514.
275. See BONILLA-SILVA
276. ⋯supra note 39, at 31-39; Olson
277. ⋯supra note 35, at 391.
278. See BONILLA-SILVA
279. ⋯supra note 39, at 31-39.
280. Those whites primed to think about the specific ways that they benefit from their whiteness demonstrate the highest levels of modern racism. Branscombe, Schmitt & Schiffhauer
281. ⋯supra note 219, at 213.
282. See BONILLA-SILVA
283. ⋯supra note 39, at 31-39.
284. See Branscombe, Schmitt & Schiffhauer
285. ⋯supra note 219, at 204.
286. See id. at 211-12.
287. Additionally, the moral and psychological account of white injury used in current interracial solidarity doctrine does not resonate with many post-civil rights era whites, because conversations about discrimination have fundamentally changed. Now that whites are being asked to consider whether facially race-neutral and ambiguous personal interactions facilitate bias, civil rights accounts that concern racism's ability to inflict moral harm seem far less convincing. Whites are unlikely to believe that merely witnessing or failing to respond to another party's unconscious or unintentional racially-biased behavior causes them to suffer moral or psychological injury. Also, the civil rights era account of whites' relationship to discrimination seems even more of an ill fit in discussions of "white privilege." As explained above, many whites feel little risk of moral and psychological injury from using race-neutral advantages that someone else's discrimination may have created for them. They may think it is morally wrong to ask them to abandon the social capital their ancestors accumulated merely because these resources were amassed in an era tainted by racism. Finally, even if reliance on these advantages makes them culpable at some level, whites may believe that the small advantage they enjoy seems justified, given the existence of social justice programs that benefit minorities' interests. Certainly persons holding these views are oversimplifying matters, but these views must be addressed by contemporary attempts to explain the wrongfulness of more subtle discriminatory conduct and social arrangements.
288. The authors of White Racism recognize the problems posed by white privilege discussions and the argument that whites should give up material advantages for the abstract moral interests protected by interracial solidarity doctrine. See FEAGIN ET AL., supra note 218, at 220-36. Questioning the viability of this strategy, they ask, "[w]ill whites forsake their material and psychological privileges out of the goodness of their hearts or because they accept the American equality creed at an abstract level?" Id. at 220.
289. Jaret & Reitzes, supra note 100, at 732 ("[W]hites seem to build a self-image that is very individualistic, colored not mainly by race/ethnicity, class, or age but instead mainly by highly personalized qualities and idiosyncrasies that are appreciated by them and their reference groups."). These identities can range from more widely recognized regional affiliations, political associations, or cultural affinities to seemingly inconsequential or quotidian interest-based preferences, such as commitments to particular leisure activities or sports teams.
290. Id. at 731 ("[W]hen people are in more diverse settings, especially if there is tension or conflict present, they are likely to make self-other comparisons and contrasts that elevate feelings about the importance of their racial-ethnic identity.").
291. See Olson
292. ⋯supra note 35, at 391.
293. Id.
294. Id. at 392.
295. Id.
296. See, e.g., Ruth Frankenberg, White Women, Race Matters: The Social Construction of Whiteness, in CRITICAL WHITE STUDIES: LOOKING BEHIND THE MIRROR
297. 341⋯supra note 38, at 632, 634 (warning against engagements with '"white ethnic' heritage that⋯ evade race privilege in the present"); Gallagher,
298. ⋯supra note 38, at 9 (arguing that whites' claims about ethnic-based subordination are part of privilege avoidance strategies).
299. See Brayton
300. ⋯supra note 83.
301. See, e.g., sources cited infra note 245
302. Peggy Mcintosh, White Privilege: Unpacking the Invisible Knapsack, in RACE, CLASS, AND GENDER IN THE UNITED STATES 188,189-90 (Paula S. Rothenberg ed, 6th ed. 2004) (listing benefits of whiteness, including lower risk of police surveillance and discrimination in social interactions, as well as consumer shopping choices more in line with whites' interests and expectations). Mcintosh even considers the fact that whites (as compared to persons of color) have easy access to skin colored toned band-aids as an example of white privilege. See Mcintosh,
303. 348⋯supra note 45,291,294.
304. Discussions of whites' concrete benefits from "white privilege" tend to dominate the psychological literature as well. See, e.g., Spanierman & Heppner,
305. 350⋯supra note 36, at 249 (noting that "white privilege" provides whites with (a) access to society's resources, (b) advanced educational opportunities, (c) life within a culture that delineates one's worldview as correct, and (d) a sense of entitlement). Their discussion of the costs of racism focuses on "psychosocial costs," noting that racism has cognitive, behavioral, and affective costs for whites, such as guilt, shame, apathy, and anxiety. Id.
306. Duster, ⋯supra note 106, at 114-15 (explaining that a discussion of the context-specific description of whiteness that is attendant to the shifting definitional nature of whiteness need not prevent a discussion of its role in structural oppression).
307. Some of the moral and psychological harms seem particularly unappealing to actors primarily focused on economic and short-term considerations.
308. ⋯See, e.g., Spanierman & Heppner,
309. ⋯supra note 36, at 249-62 (describing discrimination's costs to whites' mental health, noting it makes a white lose his authentic self, develop a distorted sense of history, and experience spiritual depletion). Low & Schneider, ⋯supra note 151, at 2261-97. 358⋯supra note 151, at 2261-97.
310. See generally CYNTHIA STOKES BROWN, REFUSING RACISM: WHITE ALLIES AND THE STRUGGLE FOR CIVIL RIGHTS (2002) (describing whites' efforts during the civil rights era to create outreach organizations for whites that explained how whites were disadvantaged by structural racism); see GUINIER & TORRES, supra note 45, at 275-82 (discussing political race as a way for cross racial coalitions to identify systems of oppression, namely by taking cues from social arrangements that tend to disadvantage particular minority groups); see also Treason to Whiteness Is Loyalty to Humanity: An Interview with Noel Ignatiev of Race Traitor Magazine, in CRITICAL WHITE STUDIES: LOOKING BEHIND THE MIRROR
311. See, e.g., Swim & Miller.
312. ⋯supra note 36, at 500-01 (discussing an ambivalent relation ship to whiteness). They report on studies showing that whites often "feel guilt by their assoc iation with the White race." Id. at 501. Indeed, they often experience the "discomfort of guilt, shame and sometimes anger at the recognition of their advantage because of being White" Id. (citation omitted).
313. See, e.g., Jaret & Reitzes, ⋯supra note 100, at 732.
314. See Branscombe, Schmitt & Schiffhauer, ⋯supra note 219, at 204.
315. See ⋯supra notes 221-228 and accompanying discussion.
316. Eichstedt, ⋯supra note 31, at 463 (discussing the experiences of discrimination endured by gay whites, Jews, and white female interview subjects and interviewees' observations that their outsider status allowed them to both understand oppression while simultaneously taking responsibility for the white privilege they did enjoy).
317. See McWhorter, ⋯supra note 35, at 533-56.
318. See id. at 544. McWhorter explains that Whiteness Studies scholars working in critical theory "hope their work will bring white people up short, make it difficult for them to continue to function unthinkingly within a white supremacist social system, and make it possible for them to imagine and create different ways of living." Id.
319. See Jaret & Reitzes, supra note 100, at 732 (arguing that the reason whites may suggest that other aspects of identity such as race, class, and gender are not important to them is because they have not experienced exclusion on that basis). In the absence of discrimination, Jaret and Reitzes observe, whites are likely to prize more idiosyncratic identities uncorrelated with an established antidiscrimination project. Id. They note, however, that this weak identification dynamic may change when individual whites experience discrimination based on politically significant identity features, such as class or gender. Id.
320. It is difficult to precisely quantify the increase in the number of Americans who identify as multiracial persons over time because of limitations in data collection efforts. However, the 2000 census is often identified as the high-water mark for counting mixed-race persons, as it allowed people, for the first time, to check off multiple boxes when identifying by race to signify their mixed-race heritage. In the 2000 Census, almost seven million people, or 2.4% of the U.S. population, identified as mixed race. Miville et al., supra note 102, at 507; see Kerry Ann Rockquemore & David L. Brunsma, Socially Embedded Identities: Theories, Typologies, and Processes of Racial Identity Among Black/White Biracials, 43 SOCIOLOGICAL Q. 335, 338 (2002) (reporting the same statistics). Some believe these high numbers are indicative of a trend towards identification as multiracial among the young. See id. at 350 (noting 2% of persons age 50 and over self-identified as black and multiracial on the Census, as compared to 8% of persons aged 17 and younger who self-identified as black and multiracial).
321. This increased openness to recognizing multiracial persons as white has been described both anecdotally in small-scale studies as well as larger studies tracking the evolving politics of racial identification. See Miville et al., supra note 102, at 511 (describing certain multiracials' ability to shift between racial identities as the "chameleon experience"); Rockquemore & Brunsma,
322. ⋯supra note 254, at 338 (discussing protean multiracials that shift between identifying black, white, or multiracial depending on their social context); see also Warren & Twine,
323. ⋯supra note 40 (discussing legal and institutional measures allowing multiracials and Latinos to identify themselves as white in many cases and discussing intermarriage rates as evidence of the expansion of the category of whiteness to include Asians and Latinos).
324. ⋯Lisa B. Spanierman & Patrick Ian Armstrong, Psychosocial Costs of Racism to Whites: Exploring Patterns Through Cluster Analysis, 53 J. COUNSELING PSYCHOL. 434, 434-41 (2006); Spanierman & Heppner,
325. ⋯supra note 36.
326. See Feldman. ⋯supra note 121, at 560 (discussing whites' potentially better access to information about discrimination); Herbert M. Kritzer et al., To Confront or Not to Confront: Measuring Claiming Rates in Discrimination Grievances, 25 LAW & SOC'Y REV. 875, 875-87 (1991) (discussing the chronic problem of underreporting of workplace race discrimination). 258 Courts may find it more difficult to interpret existing Title VII causes of action in ways that allow plaintiffs to present claims concerning linkages between discriminations. For discussion of why these claims are significant to marginal white plaintiffs, see ⋯supra text n accompanying notes 158-170.
327. See supra text accompanying notes 34-35.
328. See, e.g., Bradley, ⋯supra note 32, at 46-47 (documenting findings from study showing middle-class whites showed a greater propensity to discriminate against middle-class blacks after being given a chance to discriminate against working-class whites). See Eichstedt ⋯supra note 31, at 452 (discussing whites' experiences of certain kinds of subordination as generating a critical consciousness about white privilege).
329. KIRBY Moss, THE COLOR OF CLASS: POOR WHITES AND THE PARADOX OF PRIVILEGE 73-76 (2003) (discussing poor whites' reaction to a middle-class black researcher's attempts to interview them about the construction of white privilege). One could argue that the black researcher's class created a kind of identity threat to poor whites that prevented opportunities for conversations. Id. These dynamics continue to present challenges for whites who might otherwise develop a marginal whiteness perspective. Gibson,
330. ⋯supra note 56, at 388 (noting racism of poor whites in Shellcracker as an impediment to their understanding of their similar economic position to poor and marginalized blacks and Latinos). 263 Several concepts discussed in the psychological literature may prove helpful in measuring these dynamics, including the "black sheep effect" and "reflection and deflection theory" (RAD), as described by Jill Bradley. Bradley, ⋯supra note 32, at 3 (describing RAD as a pattern in which middle-class whites derogate lower-status whites in a self-deception effort that facilitates their ability to discriminate against middle-class blacks); see also Saera Khan & Alan J. Lambert, Ingroup Favoritism Versus Black Sheep Effects in Observations of Informal Conversations, 20 BASIC & APPLIED SOC. PSYCHOL. 263,263 (1998) (describing the "black sheep effect" as the tendency to judge ingroup targets more negatively than outgroup targets when the targets' features are unambiguously negative).
331. Paul R. Croll, Modeling Determinants of White Racial Identity: Results from a New National Survey, 86 Soc. FORCES 613, 617 (2007) (noting that "[a]n underlying assumption of much of the research on white racial identities (especially in the work on identity scales in psychology) is that whites' awareness of their racial identity is part of a progression of enlightenment as well as a move toward stronger views of social justice and activism"). This enlightenment path is similar to the model that celebrates diversity and colorblindness in that it does not stress the more personal, self-interested reasons marginal whites might have for wanting to challenge minority-targeted discrimination. More specifically, the paucity of empirical data stems from the fact that the two models of white identity used in the social psychology literature are based on the same civil rights era norms that have limited the development of Title VII doctrine. The models are primarily concerned with charting whites' path to the acknowledgment of white privilege and the creation of a positive, integrated white identity that disavows white privilege, racism, and the naturalization of ideas about white social superiority. The first model is the white identity development model (WID) created by Rita Hardiman in 1982. The second is the six-stage white racial identity development model (WRID) developed by Janet Helms in 1984. For a discussion of these models, see Rita Hardiman, Reflections on White Identity Development Theory, in NEW PERSPECTIVES ON RACIAL IDENTITY DEVELOPMENT: A THEORETICAL AND PRACTICAL ANTHOLOGY 108, 124-25 (Charmaine L. Wijeyesinghe & Bailey W. Jackson III eds., 2001), and Croll, supra note 264, at 617. The WID has had the most impact on empirical research, as it was converted into the White Racial Attitudes Identity Scale (WRAID), a measurement tool that has been widely used in the psychological studies on whiteness. Hardiman
332. See supra Part III, and text accompanying notes 168-173. . For a discussion of this problem in feminist scholarship, see Angela P. Harris, Race and Essentialism in Feminist Legal Theory, in CRITICAL RACE THEORY: THE CUTTING EDGE 257, 592 (Richard Delgado & Jean Stefancic eds., 1995) (noting that because much of feminist discourse is "in the pursuit of the essential feminine, Woman leached of all color and irrelevant social circumstance, issues of race are bracketed as belonging to a separate and distinct discourse"). For example, readers of accounts of sexism and the cult of domesticity that dominated the eighteenth and nineteenth centuries will realize that the precise features of sexism identified in these accounts are actually specific to the experiences of middle-class white women. They do not account for the experiences of Latino, Black, and Asian women who in many cases were forced to labor extensively outside of the home
333. France Twine and Charles Gallagher identify a range of scholars that have adopted this understanding in their work, including Ruth Frankenberg, Anoop Nayak, and David Roediger, among others. See Twine & Gallagher, supra note 35, at 7, 12-14. I would include additional scholars in this group, at least one of whom has been characterized as part of the second wave in their analysis. These scholars include Matthew Frye Jacobson, Matthew Wray, Eric Klinenberg, Ladelle McWhorter, and John Hartigan, Jr. Specifically, Harris points out that accounts of gender that stress the oppressive channeling of women into the domestic sphere render invisible the experiences of women of color and position white women as the true victims of sexism. Harris, supra note 268, at 591-92. Harris further notes, "feminist essentialists find that in removing issues of race they have actually only managed to remove Black women-meaning that white women now stand as the epitome of Woman." Id. at 592.
334. Hutchinson, supra note 68, at 583-84. Hutchinson notes that discussions about discrimination against gays foreground the issues facing white gay men, disguising a truly raced problem as a universal one. Id. at 620-24.
335. Scholars wedded to discrimination frameworks that analyze each basis for social subordination separately must consider what is lost when they insist that there are distinct phenomenological experiences of otherness experienced by different socially subordinated groups. Discrimination targets themselves often have difficulty sorting out which precise form of discrimination they are experiencing when they are being targeted, particularly when they are members of several different subordinated groups. For example, one wonders, how does a mixed-race lesbian tell what kind of discrimination she has been subject to when her white male supervisor wrongfully declines to promote her? Is the discrimination based on her gender, her race, or her sexual orientation? Should her judgment be based on a process of subtraction? That is, if her supervisor is also gay, can she safely assume that her sexual orientation is not at issue? Or, might the gay white male supervisor regard her performance of homosexuality as offensive because of his tendency to reinstantiate white male homosexuality as the paradigmatic and preferred version of gay identity? If the supervisor is of mixed race, does this take her race out of the running as well, or could he be reacting to the example of racial admixture reflected by her physical traits? The mixed-race lesbian is on a fool's errand if she tries to sort out which discrete kind of discrimination has caused her injury, as the attempt to chase down the precise nature of this bias does not ultimately help her negotiate the workplace. Instead, her best strategy is to look for evidence that her employer has used particular rhetorical strategies to represent (or rather distort) her performance that focus on particular features of difference. In the absence of this rhetorical evidence, she will look for evidence of ingroup preferences, first among white men and then among whites more broadly. What marginal whiteness brings to this analysis is it reminds the mixed-race worker, as well as other white employees, that we should focus less on thinking about discrimination as the specific condition of the single targeted worker, but instead on how higher-status whites manipulate the boundaries of whiteness in a particular workplace to ensure that they maintain systematic advantages.
336. At different work sites (or even at different times on the same work site), a given facet of one's identity, such as race, gender, and sexuality, may become more or less significant depending on the particular social conflict being played out. As Gerald Torres explains, "the imposition of gender norms was one way that institutions of white supremacy were maintained." Gerald Torres & Katie Pace, Understanding Patriarchy as an Expression of Whiteness: Insights from the Chicana Movement, 18 WASH. U. J.L. & POL'Y 129,134 (2005) (footnote omitted).
337. See, e.g., Karen D. Pyke & Denise L. Johnson, Asian American Women and Racialized Femininities: "Doing" Gender Across Cultural Worlds, in GENDER THROUGH THE PRISM OF DIFFERENCE 263,263 (Maxine Baca Zinn et al. eds., 3d ed. 2005) (arguing that "[w]ork is still needed that integrates systems of oppression in a social constructionist framework without granting primacy to any one form of inequality or ignoring larger structures of domination").
338. Mike Hill, Introduction: Vipers in Shangri-la, Whiteness, Writing, and Other Ordinary Terrors, in WHITENESS: A CRITICAL READER 1, 5 (Mike Hill ed., 1997). Marginality exceeds its twin (the center) and is therefore accountable neither from the perspective of the margins or the centers, in any static sense of those terms. To think otherwise is to engage in a sort of secondary narcissism that keeps (an oppressive) center-if inadvertently and with good intentions-in place.
339. As Gerald Torres explains, "the imposition of gender norms was one way that institutions of white supremacy were maintained." Gerald Torres & Katie Pace, Understanding Patriarchy as an Expression of Whiteness: Insights from the Chicana Movement, 18 WASH. U. J.L. & POL'Y 129,134 (2005) (footnote omitted).
340. See, e.g., Karen D. Pyke & Denise L. Johnson, Asian American Women and Racialized Femininities: "Doing" Gender Across Cultural Worlds, in GENDER THROUGH THE PRISM OF DIFFERENCE 263,263 (Maxine Baca Zinn et al. eds., 3d ed. 2005) (arguing that "[w]ork is still needed that integrates systems of oppression in a social constructionist framework without granting primacy to any one form of inequality or ignoring larger structures of domination").
341. Mike Hill, Introduction: Vipers in Shangri-la, Whiteness, Writing, and Other Ordinary Terrors, in WHITENESS: A CRITICAL READER 1, 5 (Mike Hill ed., 1997). Marginality exceeds its twin (the center) and is therefore accountable neither from the perspective of the margins or the centers, in any static sense of those terms. To think otherwise is to engage in a sort of secondary narcissism that keeps (an oppressive) center-if inadvertently and with good intentions-in place.
342. See, e.g., Gross, supra note 42; López, supra note 42.
343. See, e.g., MELISSA NOBELS, SHADES OF CITIZENSHIP: RACE AND THE CENSUS IN MODERN POLITICS (2000) (discussing the role of the Census in shaping and reflecting changing discursive understandings about the role of race and the composition of racial groups in American society); Rich, supra note 206, at 576 (discussing same with regard to self-designation choices made by individuals in admissions applications).
344. Rich, supra note 206.
345. Twine & Gallagher, supra note 3 5.
346. For a general discussion of some of the contemporary social, political, and cultural pressures on masculinity, see Peter Jackson, The Cultural Politics of Masculinity: Towards a Social Geography, 16 TRANS. INST. BRIT. GEOGRAPHERS 199 (1991) and Lynne Segal, Changing Men: Masculinities in Context, 22 THEORY AND SOC'Y 625 (1993).
347. See, e.g., Pyke & Johnson, supra note 275, at 264 ("Hegemonic (also known as ascendant) masculinity is organized around the symbolic equation of masculinity and power. It is an ideal type that is glorified and associated with white men at the highest levels of society, although few actually possess the associated traits.").
348. Historically, white masculinity was seen as paradigmatic or unmarked. However, as questions are raised about masculinity's nature, this privileged position for white masculinity is under increased social and political pressure. See Brayton, supra note 83, at 58 (describing "[w]hite masculinity in North America [a]s a historically unstable category, beset with continual anxiety") (citation omitted). Some might argue that, in certain ways, some versions of black or Latino performances of masculinity are closer to the traditional paradigmatic representation of masculinity. Others would note that the view that there was ever a single paradigmatic unchanging representation of white masculinity is a fiction, and that there have always been cultural skirmishes and contests regarding the proper construction of white masculinity, although they were less visible and perhaps of more limited material and economic significance in earlier periods of American history.
349. In addition to competing considerations threatening to change the core of masculinity, the definition and value of the construct itself is being challenged. See HARVEY C. MANSFIELD, MANLINESS (2006) (discussing current cultural pressures on masculinity raising questions about its significance); Ronald F. Levant, The New Psychology of Men, 27 PROF'L PSYCHOL.: RES. & PRAC, 259-65 (1996) (noting that, since the 1980s, scholars have begun to examine masculinity not as a normative referent, but rather as a complex and problematic construct, positing that traditional constructions of masculinity have put men at a social and cultural disadvantage); see also Sometimes It's Hard to Be a Man - The Downsized Male, ECONOMIST, Dec. 22, 2001 (discussing liberation of women under feminism giving them access to both the public and private sphere while men in contrast have a much narrower range of options). Certainly, the questioning of a particular identity feature does not stop it from functioning as a source of privilege. Mike Donaldson, What Is Hegemonic Masculinity?, 22 THEORY & Soc*Y 643 (1993).
350. Denevi & Pastan, supra note 29, at 70-73; Eichstedt, supra note 31, at 447.
351. See Rich, supra note 206, at 570. In Decline to State, I argue that affirmative action supporters gain little by avoiding conversations about relative levels of white privilege. Id. at 582-83. Often these discussions are avoided by persons concerned about ensuring that protections remain in place for middle-class blacks or other minorities with class privilege. However, in order to adequately defend these policies, one needs to have a substantive discussion distinguishing between class-based privilege and race-based privilege. Id. at 569-70. This kind of open discussion, I argue, has more potential to win supporters for social programs like affirmative action than less nuanced ones that treat allwhites as though they enjoy a static parcel of benefits called white privilege. 415 Denevi & Pastan, supra note 29, at 71-72; Eichstedt, supra note 31, at 447.
352. Newitz & Wray, supra note 69, at 169.
353. GUINIER & TORRES, supra note 45, at 14.
354. Id at 11-16.
355. Cf. CHARLES J. SYKES, A NATION OF VICTIMS 3-15 (1992) (arguing that all Americans seem to believe that no matter how much privilege they actually have, all of them deserve to be pitied or treated as victims in some circumstances).
356. Some scholars have found that when whites are primed to think about the specific ways in which whiteness has benefited them, they demonstrate the highest levels of modern racism. See, e.g., Branscombe, Schmitt & Schiffhauer, supra note 219, at 213 (noting that discussions of whites' privileged status or unfair advantages triggered feelings of identity threat that caused some whites to question the deservingness or competence of less-favored groups). See also, Swim & Miller, supra note 36, 503 (1999) (discussing certain whites' defensive reactions to discussions of white privilege).
357. John Tehranian, Performing Whiteness: Naturalization Litigation and the Construction of Racial Identity in America, 109 YALE L.J. 817 (2007).
358. See, e.g., Gualtieri, supra note 40 (noting the recent movement among Arab Americans to "dissociate" from their classification as white, partially in an effort to be protected under antidiscrimination laws and partially in recognition of their status as marginalized figures or outsiders in white American society). 423⋯See McDermott & Samson, supra note 49, at 248 (arguing that the denial of white privilege is the foundation of colorblind racism). Much of the recent work on whiteness concerns how whites minimize, acknowledge, deny, embrace, or feel guilty about their privileged status. See id. Critical White Studies scholars have also expressed concern about this problem. 424⋯See, e.g., Frankenberg, supra note 237, at 634 (warning whites against romantic engagements with their ethnic heritage to avoid responsibility for white privilege); Gallagher, supra note 38, at 9 (arguing whites' claims about ethnic identity are thin and often are part of privilege avoidance strategies).
359. FORD, supra note 105, at 342.
360. Bonilla-Silva explains, "although whites, because of their privileged position in the racial order, form a social group ⋯ they are fractured along class, gender, sexual orientation, and other forms of 'social cleavage.' Hence they have multiple and often contradictory interests ⋯." BONILLA-SILVA, supra note 39, at 10.
361. See, e.g., ROEDIGER, THE WAGES OF WHITENESS, supra note 104, at 168-70 (discussing labor's call during the 1860s for Irish and black solidarity to improve working conditions). Ultimately, however, the socialization of the Irish as white resulted in the failure of efforts at solidarity. See ROEDIGER, TOWARD THE ABOLITION OF WHITENESS, supra note 104, at 29 (discussing 100,000 lost days of labor whites endured during hate strikes in the 1940s when they protested the promotion of small numbers of black workers). Despite the clear economic cost of these acts of opposition for white workers, the desire to defend positions for whites as a group motivated behavior that went against individual whites' economic self-interest.
362. See, e.g., ERIC L. GOLDSTEIN, THE PRICE OF WHITENESS: JEWS, RACE AND AMERICAN IDENTITY (2006); ROEDIGER, supra note 42; Richard Brookhiser, Others, and the WASP World They Aspired to, in CRITICAL WHITE STUDIES: LOOKING BEHIND THE MIRROR, supra note 38, at 360; George A. Martinez, The Legal Construction of Race: Mexican-Americans and Whiteness, 2 HARV. LATINO L. REV. 321 (1997).
363. Gibson, supra note 56, at 379-89 (noting the geographically specific class-based ways in which whiteness is constructed for poor whites and the construction's relationship to minority racism).
364. Eichstedt, supra note 31, at 447.
365. Id.