Professor Tanya Hernández wrote an op-ed for the New York Law Journal about addressing employment discrimination faced by multiracial people.
With the growth of a mixed-race population in the United States that identifies itself as “multiracial,” legal commentators have begun to raise concerns about how employment discrimination law responds to the claims of multiracial plaintiffs.
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With the release of data for both the 2000 and 2010 census years much media attention has followed the fact that first 2.4 percent then 2.9 percent of the population selected two or more races. The Census Bureau projects that the self-identified multiracial population will triple by 2060. Yet mixed-race peoples are not new. Demographer Ann Morning notes that their early presence in North America was noted in colonial records as early as the 1630s.
However, the presence of fluid mixed-race racial identities within allegations of employment discrimination leads some legal commentators to conclude that civil rights laws are in urgent need of reform because they were built upon a strictly binary foundation of blackness and whiteness.
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Even U.S. Supreme Court litigation has begun to associate the growth of multiracial identity with the obsolescence of civil rights policies. Particularly worrisome has been the judicial suggestion that the growth of multiracial identity undercuts the legitimacy of affirmative action policies that have long sought to pursue racial equality.
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[T]he increase in the number of individuals identifying as mixed-race or multiracial does not present unique challenges to the pursuit of equality inasmuch as the cases are mired in a long existing morass of bias against non-whiteness and its intimate connection to white privilege. Well-meaning but misplaced critiques of how multiracial claims are processed should not serve as a basis for questioning the formulation of traditional employment discrimination law. Rather than point to a need for a shift away from the existing civil rights laws, the cases instead indicate the need for further support of the current structures. The multiracial discrimination cases highlight the continued need for attention to white supremacy and for fortifying the focus of civil rights law on racial privilege and the lingering legacy of bias against non-whites. Multiracial persons and all other victims of discrimination are better served when judges hone in on the direct source of discrimination. Our current climate needs such judicial clarity now more than ever.