No Title VII Protection So Far for People “Perceived to Be” Black

Despite being the son of white Irish parents, British theater director Anthony Ekundayo Lennon appears to be a mixed-race man because of his “high cheekbones” and “curly hair.” He drew media attention recently when he claimed that as an actor, he found it easier to pursue nonwhite parts. He also changed his middle name from “David” to “Ekundayo.” The criticism increased when he was offered a paid traineeship as a “theatre practitioner of colour,” a program designed to give more actors of color a chance for a career in the arts. He acknowledges that he is a white man with white parents but insists that he has gone through the “struggles of a Black man.”

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Lennon’s story mirrors that of Vijay Chokal-Ingam, a man of Indian descent (and brother of actress Mindy Kaling), who admittedly “faked being Black” to apply to medical school. He wore his hair more closely cropped, changed his name, and even became a member of Black student organizations.

And don’t forget Rachel Dolezal, a former local NAACP president in Spokane, Washington, who is white but self-identifies as (and even her closest friends thought she was) Black. After the story broke, Dolezal changed her name in 2016 to “Nkechi Amare Diallo,” which has Nigerian origins.

Lennon, Chokal-Ingam, and Dolezal “self-identified” as Black persons and outwardly appeared, to some, to be Black. However, are people like Lennon, Chokal-Ingam and Dolezal—who appear to be Black, Hispanic, and/or mixed-race, but are not—protected from discrimination under Title VII of the Civil Rights Act of 1964?

While the Americans with Disabilities Act (ADA) and the Rehabilitation Act explicitly prohibit discrimination against persons “regarded as” having a disability who are discriminated against based on that belief, Title VII doesn’t contain such language.

What Courts Say

The U.S. Supreme Court and federal circuit courts of appeals have not yet determined whether a “perceived-as” race discrimination claim is cognizable under Title VII. Although the appellate courts have not yet addressed the issue, a few federal district courts have held that perceived-as discrimination claims are cognizable under Title VII. Ohio, Maryland, and Michigan district courts have allowed national origin “perceived-as” claims to proceed. In the Ohio case, Perkins v. Lake County Department of Utilities, the court explained: “when racial discrimination is involved perception and appearance are everything.”

However, the majority of federal district courts that have considered such claims (including North Carolina, New York, Kansas, Ohio, and Georgia) don’t recognize perceived-as claims as cognizable under Title VII. These cases cite to Butler v. Potter, an Eastern District of Tennessee case that held that an employee who was not discriminated against based upon his actual national origin identity (a supervisor perceived him as being of Indian or Middle Eastern descent) did not have a cognizable Title VII claim. Courts that don’t recognize perceived-as claims generally point to the lack in Title VII of “perceived-as” language that is present in other federal antidiscrimination statutes like the ADA and the Rehabilitation Act.

EEOC’s Take

The EEOC, the agency charged with enforcing Title VII, recognizes that discriminating against someone “because of the perception or belief that a person is a member of a particular racial…group whether or not that perception is correct” as a form of race discrimination. In fact, in September 2006, the agency resolved a potential Title VII lawsuit against a fast-food chain in which a biracial girl was refused an application for employment because she was perceived as being Black.

Bottom Line

The fact remains that although the EEOC interprets Title VII to prohibit such discrimination, Congress has not amended the Act to include language explicitly prohibiting perceived-as race discrimination. Nevertheless, employers should be cognizant of the existence of such claims and take care to investigate their substance, regardless of the victim’s protected status or lack thereof.

Destiny Washington focuses her practice at FordHarrison’s Atlanta office on the representation of employers in labor and employment law matters. Her experience representing an international union and state and local government entities, including law enforcement agencies and school districts, gives her a unique perspective in her advice and representation. A former military print journalist, she has proudly served her country and is a veteran of the U.S. Army and the Louisiana Army National Guard. Find her on LinkedIn here.