Branding Identity

52 Pages Posted: 24 Jan 2016 Last revised: 8 Apr 2016

Date Written: January 23, 2016


The Civil Rights Act of 1964 protects against discrimination on the basis of race, color, religion, sex, or national origin — the so-called “protected classes.” To make out a successful civil rights claim under the current legal structure, a plaintiff must first identify the protected class under which her claim arises (i.e., race or religion). She must then identify a subclass of that protected class (i.e., African American race or Christian religion) and assert that, due to her membership in or relationship to that subclass, she was treated differently in violation of the law. This Article explores the disconnect between self-identity and perceived identity in the context of assigning membership in protected classes and subclasses. Specifically, it analyzes the tension inherent in the protected class deemed “color.” By tracing the relevant legislative history of the Civil Rights Act of 1964 and the jurisprudence that has developed in the wake of its passage, this Article provides critical historical context for how identity has been assigned in civil rights jurisprudence. It finds that the institutional actors — the legislature and the courts — abdicated their responsibility to define the color protected class, differentiate color from race, and give clarity to the relevant subclasses of a color discrimination claim. Recognizing that gap, parties to civil rights actions have stepped into the void. Most recently, parties have begun inserting the concept of “people of color,” a term adopted by a modern progressive social movement to build solidarity and power among non-White minorities, into civil rights challenges. Such a shift in the language of civil rights law brings to the forefront the tension between a plaintiff’s self-identification and the plaintiff’s perceived identity that forms the basis of the defendant’s discriminatory action. This Article warns against adapting the people of color concept for civil rights litigation. It argues that the category people of color, undoubtedly important to developing cultural and political capacity and power, should not be inserted into civil rights litigation. Because of the history of conflating the terms color and “colored,” joined with the difficulty in disentangling color from race, the existing legal structure for establishing civil rights claims leaves little room for reimagining identity. Inserting the people of color construct into civil rights challenges will undercut the potential of the law to provide broad protection against discrimination and runs counter to the goal of achieving racial equality.

Suggested Citation

Elengold, Kate, Branding Identity (January 23, 2016). Denver University Law Review, Vol. 93, No. 1, 2016, American University, WCL Research Paper No. 2016-05, Available at SSRN:

Kate Elengold (Contact Author)

UNC School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States

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