41 Pages Posted: 16 Apr 2009
Date Written: April 15, 2009
In this Essay, I focus on the dispute concerning the alleged racial motivations behind the recent NBA dress policy. In particular, I explore one recurring theme throughout the NBA dress code debate: the way in which comments by black players and commentators who supported the code and viewed it as non-discriminatory were seen and used as powerful tools to directly refute claims of racism by black players who believed that the enactment of the code was racially motivated. I analyze this recurring theme as a means of examining the evidentiary power of what I call "black on black" testimony in employment discrimination cases. As I see it, this theme adds an important layer to our current understanding about how witness testimony by minorities against other minorities can be improperly weighed during the fact-finding process.
To that end, I use the debate about the NBA Dress Code as a case study to identify three different categories of performative behavior by Blacks: (1) accommodating, which occurs when racial outsiders accept dominant cultural norms as a means of advancement, without any concern about or challenge of their potentially racialized meanings; (2) distancing, which occurs when conforming outsiders consciously work to distinguish themselves from other racial outsiders who reject dominant cultural appearance standards and performances; and (3) resigned modeling, which occurs when racial outsiders do not necessarily buy into mainstream definitions of culturally acceptable norms but resign themselves to these norms for the sake of serving as role models to those in their group who may look up to them. I contend that each of these behaviors constitute a form of "volunteer discrimination" and must become an integral part of juries' and courts' evaluations of testimony from pro-defendant minority witnesses in race discrimination cases. In fact, looking at the NBA dress code debate itself, I contend that, rather than negating allegations of racism, the reactions of the policy - defending black NBA athletes and leaders actually may highlight the immense pressures that Blacks have in our society to perform their identity in a way that is racially palatable - in other words, accommodating of cultural norms that place what is perceived as being white at the top of the social hierarchy and what is perceived as being black at its bottom.
Keywords: employment, discrimination, Title VII, NBA, dress code, evidence, testimony, race, racism, anti-subordination, working identity
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