Intra-Group Preferencing: Problems of Proof in Colorism and Identity Performance Cases
Historically, U.S. anti-discrimination law has been concerned with the total exclusion of certain groups from the workplace or from particular job categories within the workplace. Laws were directed at this across-the-board intolerance. As scholars (including Devon Carbado, Barbara Flagg, Mitu Gulati, Angela Harris and others) have noted, this is not the sole or arguably the primary way in which discrimination operates today. Homogeneous institutions and job categories are now suspicious (and presumably the market will no longer tolerate such places). Thus, instead of the wholesale exclusion of groups, what we are more likely to see is intra-group “screening” or “preferencing” to determine who will be included; that is, instead of the total exclusion of a group, employers are more likely to identify within groups those individuals they find most palatable (e.g., by selecting a lighter-toned African American over a darker-toned African American, a woman who wears makeup over a woman who does not, or a gay male who downplays his sexuality over a gay male who celebrates it).
Although scholars have done an excellent job documenting the ways in which intra-group discrimination happens and have made progress in securing legal recognition of intra-group claims, one question has received scant attention in the literature. It is this: assuming a legal basis for intra-group claims, can plaintiffs actually win these cases? In other words, it is one thing to be able to assert a right to relief; it is another to convince a fact finder to grant that relief. In the attached article, Intra-Group Preferencing: Problems of Proof in Colorism and Identity Performance Cases, I fill a missing void in the literature by exposing the unique challenges that plaintiffs face in proving intra-group claims. I also demonstrate ways in which traditional legal frameworks must be tweaked in order to address more subtle and nuanced contemporary discrimination.