Categorically Black, White, or Wrong: The Emergence of an 'Actuality Requirement' and Identity Adjudication in Title VII Litigation

Posted: 18 Sep 2012 Last revised: 26 Feb 2016

See all articles by D. Wendy Greene

D. Wendy Greene

Drexel University Thomas R. Kline School of Law

Date Written: September 18, 2012


Categorically Black, White, or Wrong exposes an alarming, inconspicuous movement within antidiscrimination law. Unabashedly, a band of federal courts are denying Title VII protection to individuals alleging "categorical discrimination" — invidious, differential treatment — in the workplace on the basis of race, sex, national origin, color, and religion. Per these courts, a plaintiff, for example, who self-identifies as Christian — yet who is misperceived as Muslim and suffers resulting harassment or termination due to her employer’s misperception and related animus — cannot assert an actionable Title VII discrimination claim. Accordingly, such a plaintiff can only maintain a Title VII action if she is “actually” Muslim or if she brings forth allegations of invidious, differential treatment based upon her “actual” Christian identity. Thus, this article posits that courts have imposed upon categorical discrimination plaintiffs a puzzling “actuality requirement” to benefit from Title VII protection. In its comprehensive treatment of misperception discrimination cases and the judicially-created actuality requirement, this article reveals a seismic shift in statutory interpretation since Title VII’s enactment — from judicial pliability to judicial intransigence — of which jurists, practitioners, and policy makers need to be aware to quell further impairment of Title VII’s meaning, protection, and efficacy. Categorically Black, White, or Wrong illustrates that the imposition of an actuality requirement denotes the birth of an unorthodox interpretation of antidiscrimination legislation — an interpretative methodology this article is first to describe as “anti-anticlassificationist.” This article zeroes in on three unexamined, critical implications of such statutory interpretation: the emergence of a minimalist “actuality defense” for defendants; the inundation of identity adjudication in all intentional discrimination cases; and with respect to adjudicating a discrimination plaintiff’s race, the inherent reification of a discredited view of race as a fixed, biological construct.

Uniquely, Categorically Black, White, or Wrong excavates heretofore unexplored Fifth Circuit and Third Circuit precedent, longstanding EEOC directives, Title VII statutory provisions, as well as recent Supreme Court precedent which effectively substantiate that courts’ anti-anticlassificationist interpretation and attendant actuality requirement are categorically wrong. In doing so, this article provides persuasive intra-statutory support which affirms that all categorical discrimination plaintiffs — individuals who have allegedly suffered invidious, differential treatment on the basis of their “actual” or “mistaken” religious, gender, ethnic, racial or color identity — are entitled to vindicate their statutory rights to be free from unlawful discrimination.

Keywords: antidiscrimination law, race, sex, national origin, color, religion, Title VII of the 1964 Civil Rights Act, employment discrimination, civil rights, equality, racial determination, identity adjudication, misperceptions

Suggested Citation

Greene, D. Wendy, Categorically Black, White, or Wrong: The Emergence of an 'Actuality Requirement' and Identity Adjudication in Title VII Litigation (September 18, 2012). Available at SSRN: or

D. Wendy Greene (Contact Author)

Drexel University Thomas R. Kline School of Law ( email )

3320 Market Street
Philadelphia, PA 19104
United States

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