Fluid Identity Discrimination

69 Pages Posted: 31 Oct 2015 Last revised: 16 Dec 2016

See all articles by Leora F. Eisenstadt

Leora F. Eisenstadt

Temple University - Fox School of Business and Management

Date Written: October 21, 2015

Abstract

According to the most recent Census, the multiracial population of children has increased dramatically in the last decade, and the number of people of any age who identify as both white and black more than doubled in that time. In addition, there is a growing number of increasingly vocal transgender individuals who cannot be defined by existing sexual categories. Nonetheless, most courts have retained a categorical approach to Title VII that demands membership in a protected class even as American society becomes increasingly mixed and less conducive to simple categorization. In light of this new reality, this article considers the jurisprudence and scholarship on multiracial and transgender plaintiffs and argues that scholars and courts in both areas are dealing with discrimination against these increasingly visible individuals in an overly narrow way, leading to incomplete or unsatisfactory solutions. Rather than approach issues of racial identity and sexual identity separately, this article contends that these issues are symptomatic of a larger problem with Title VII, namely, an enduring attempt to fit increasingly amorphous identities into a strict categorical structure that no longer matches the reality of American society. Fluid Identity Discrimination proposes a rethinking of the protected class paradigm in light of a changed American populace with the goal of providing clarity and better alignment between law and social reality.

Keywords: discrimination, race, gender, Title VII, employment

Suggested Citation

Eisenstadt, Leora F., Fluid Identity Discrimination (October 21, 2015). American Business Law Journal, Vol. 52, No. 4, 2015; Fox School of Business Research Paper No. 15-085. Available at SSRN: https://ssrn.com/abstract=2683581

Leora F. Eisenstadt (Contact Author)

Temple University - Fox School of Business and Management ( email )

Philadelphia, PA 19122
United States

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