Whiteness at Work

Lihi Yona October, 2018

How do courts understand Whiteness in Title VII litigation? This Article argues that one fruitful site for such examination is same-race discrimination cases between Whites. Such cases offer a peek into what enables regimes of Whiteness and White supremacy in the workplace, and the way in which Whiteness is theorized within Title VII adjudication. Intra-White discrimination cases may range from associational discrimination cases to cases involving discrimination against poor rural Whites, often referred to as “White trash.” While intragroup discrimination is acknowledged in sex-discrimination cases and race-discrimination cases within racial minority groups, same-race discrimination between Whites is currently an under-theorized phenomenon. This Article maps current cases dealing with racial discrimination between Whites, arguing that these cases suffer from under-theorization stemming from courts’ tendency to de-racialize Whiteness and see White people as ‘not being of any race.’ This tendency has led to a limited doctrine of same-race discrimination between Whites, affording it recognition only when racial minorities are involved. Acknowledging Whiteness as a racial project— the product of White supremacy—may enable courts to better theorize intra-White discrimination. Such possible theorization is developed via the stereotype doctrine. Accordingly, same-race discrimination and/or harassment between Whites is often a result of Whites policing other Whites to conform to stereotypes and expectations regarding Whiteness, i.e., how White people should act or with whom they may associate. Recognizing dynamics of intra-White racialization and the racial work behind Whiteness, this Article concludes, is aligned with Title VII’s anti-subordination goals, as it is in the interest of racial minorities as well.

INTRODUCTION

How is Whiteness theorized in Title VII jurisprudence? Courts deciding racial discrimination cases deal with Whiteness on a regular basis. However, their understanding of Whiteness is limited, as is the understanding of most race scholars who limit their discussion on Whiteness to White people’s privileges or to Whiteness’ invisibility. Such a tendency, this Article argues, stems from the fact that Whiteness is mostly examined through contrast, i.e. through the lives and experiences of racial minorities. But, the nature of Whiteness as a racial project — the project of White supremacy — is better realized when looking at intra-White dynamics, that is, when examining Whiteness against itself.

Through careful examination of race theory from the margins of same-race discrimination cases between Whites, this Article argues, we are offered a peek into what enables regimes of Whiteness and White supremacy and how they operate within the workplace. Unpacking intra- White dynamics is crucial for examining how Whiteness is policed within the workplace and allows us to craft additional ways to combat regimes of White supremacy at work.

Intragroup discrimination has long been recognized by the courts as actionable under Title VII of the Civil Rights Act of 1964. Accordingly, courts recognize the possibility that women may discriminate against other women on the basis of sex, for instance by sexually harassing female employees.¹ Similarly, discrimination by Blacks and other racial minorities against their own group members is recognized in Title VII jurisprudence.² Title VII has also expanded to encompass situations where men harass or discriminate against other men on the basis of sex, usually in instances where the performance of masculinity by those discriminated against does not meet their supervisor’s or colleagues’ expectations.³ However, there is currently almost no discussion, in the courts or in legal scholarship, of the possibility that Whites may racially discriminate against other Whites. This is no coincidence. The failure to recognize most types of same-race discrimination between Whites results, this Article argues, from courts’ tendency to de-racialize Whiteness. Whiteness’ privilege of invisibility, which has made White norms the default, also prevents courts from recognizing Whiteness as a racial category that polices itself on its members. This inability is manifested through the courts’ limited recognition of intra-White discrimination.

Courts should acknowledge this type of discrimination. They can do so by adopting the stereotype doctrine developed under Title VII. Under the stereotype doctrine, discrimination based on societal expectations regarding how people from certain groups ought to behave is forbidden. Thus, cases where White people police other Whites based on their expectations of how White people should act, speak, dress, etc., should be regarded as forbidden race discrimination.

The possibility of intra-White discrimination is ever more relevant. Alt-right, White pride, and White nationalist/supremacist movements, all of which see Whiteness as a category with concrete content and distinct borders maintained by its members, have become more prevalent in recent years.⁴ These groups promote racist norms regarding Whiteness and its legitimate manifestations within American society.⁵ Their popularity may lead to an increased number of intra-White discrimination cases involving employers who enforce such ideas of Whiteness on their White employees or White employees who harass White colleagues for failing to “act White.”

Part I of this Article argues that Title VII ought to be understood as a law that forbids certain ideologies from dictating employment decisions rather than one that protects specific identities in the workplace. Such framing of Title VII is consistent with both Title VII’s language and its original purpose. Part II sketches the various ways in which courts have recognized same-race discrimination, focusing first on discrimination between racial minorities and then on discrimination between Whites. While courts generally have been open to acknowledging intraracial discrimination between racial minorities, a review of same-race discrimination cases between Whites indicates that it has only been recognized in limited circumstances. The “strongest” set of circumstances is currently known as “associational discrimination” referring to instances where White employers discriminate against White employees because of their association with racial minorities. Part III describes and critiques the current theorization of associational discrimination, arguing that it deracializes Whiteness, thus missing the main dynamic at play in these acts of discrimination. This problematic theorization leads to courts’ limited recognition of discrimination between Whites, which is restricted to scenarios in which racial minorities are involved. Part III then offers an alternative theoretical framework—the stereotype doctrine.

Part IV suggests scenarios that are missed by the current theorization and may be recognized via the stereotype doctrine. Examining stereo-types against poor rural Whites, often referred to as “White trash,” I argue that these stereotypes revolve around the “right” ways to perform Whiteness. Accordingly, discrimination against poor Whites may sometimes be seen as forbidden racial discrimination, especially when the one acting in a discriminatory manner is White. Part V addresses a possible challenge to my argument based on anti-subordination theory, demonstrating the potential advantages my argument offers to racial minorities. Part VI offers a concrete suggestion as to how courts should adopt my argument.

I. Title VII: From Identity to Ideology

A key question that shapes discussions of antidiscrimination theory revolves around the essence and purpose of antidiscrimination law. This question is usually approached via the distinction between anti-classification, anti-subordination, and, lately, anti-essentialism theories of antidiscrimination.

According to anti-classification theory, the injury caused by discrimination results from the act of distinction between or classification of individuals.⁶ Anti-classification theory, which is largely identified with ideas of formal equality, focuses on identitarian traits (e.g. race, gender, and national origin) that are seen as illegitimate grounds for classification.⁷ The way to achieve equality, according to this theory, is to ignore these traits.⁸ Anti-classification theory mostly focuses on disparate treatment and disregards larger questions of historical and structural inequality.⁹

In contrast, anti-subordination theory places historical inequality and structural modes of oppression at its center.¹⁰ Under the anti-subordination view, the law should be concerned with remedying the conditions that allow for the disadvantage of historically oppressed groups.¹¹ To fully achieve justice, we must not ignore the identities of different individuals, but rather acknowledge them and their social and historical meaning. Anti-subordination theory places a heavy weight on disparate impact, as it focuses the legal system’s attention to the realities of racial discrimination, even in instances where an employment decision may seem neutral or objective.¹²

Writers on equality describe a turn in recent years from the anti-subordination paradigm, which reflected Title VII’s origins, towards an anti-classification paradigm.¹³ Cases like Ricci v. DeStefano and Wal-Mart v. Dukes have seriously challenged disparate-impact litigation as well as social-framework theories associated with anti-subordination.¹⁴ Further, it is argued that recent anti-discrimination laws such as the Americans with Disabilities Act (ADA) and the Genetic Information Act have tilted the antidiscrimination scale towards anti-classification ideals of equality.¹⁵ Part of this turn is explained through anti-subordination theory’s focus on identity, which seems increasingly less relevant to lawmakers and courts that have embraced the view of a post-identity era.¹⁶ This sentiment is most visible in Title VII race-discrimination cases, where the constitutional commitment to colorblindness has arguably “spilled over” into Title VII jurisprudence.¹⁷

While recent judicial and legislative developments indicate disdain for identitarian-based policies, anti-essentialist views on antidiscrimination provide an important alternative. Anti-essentialism as an approach to antidiscrimination law first emerged as a critique of racial and gender justice struggles’ potential to essentialize identities and to allow courts to weigh in on questions regarding groups’ and individuals’ ontological traits.¹⁸ Richard Ford, for instance, raised the concern that “racial culture” arguments—i.e., braids are a proxy for African American women’s race—essentialize race and can potentially lead to graver racial discrimination.¹⁹ Other writers have developed additional critiques of both racial- and gender-justice projects.²⁰ Anti-essentialist theories “see group-based identities as constructed and contested through social interaction, not as fixed and stable properties of the individual.”²¹ They urge us to move from identities on the ground to the ideologies that construct them. The law’s objective under anti-essentialism is to destabilize mechanisms that reinforce and construct individual and group identities.²² Accordingly, Title VII and other antidiscrimination legislation under an anti-essentialist framework are aimed at combating oppressive ideologies such as White supremacy, racism, sexism, hetero-normativity, and ableism.

This Article shares the view that Title VII jurisprudence should be developed along the theoretical lines of anti-essentialism. Antiessentialism—which shares both anti-subordination theorists’ goal of dis-mantling structures of power as well as anti-classification theorists’ disinclination towards identity-based policies—can potentially help refocus Title VII on historical and structural forms of oppression. An anti-essentialist view would be less concerned with advancing the number of categories protected by antidiscrimination legislation and more concerned with how workplaces are gendered and raced according to different conservative ideologies (e.g. hetero-patriarchy,²³ White supremacy) that disadvantage anyone who does not fit these ideological expectations.²⁴

Despite its seemingly radical position towards social institutions (such as the law itself),²⁵ anti-essentialist theories are consistent with Title VII’s language. Jessica Clarke argues that, unlike the ADA, which defines “people with disabilities” as its protected class, Title VII is a symmetrical law that does not designate any protected class.²⁶ Section 703(a), which defines unlawful employment practices as those discriminating against any individual “because of such individual’s race, color, religion, sex, or national origin,”²⁷ forbids racial discrimination against racial majority and minority group members alike.

Clarke further argues that, while it is possible to see the original language of Title VII as focused on the identitarian traits of individuals, the 1991 amendment that added Section 703(m) reinforced Title VII’s non-identitarian slant.²⁸ Section 703(m) states that “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice.”²⁹ The provision not only signals a move away from identity-based jurisprudence—shifting the Archimedean point of proving discrimination claims from the victims’ identity to the motivation behind the discriminatory act—but also signals a step towards ideology-based claims.³⁰ Under Section 703(m), an individual must demonstrate that the ideology behind the relevant employment practice was wrongfully motivated by race, color, religion, etc.³¹ Put differently, Title VII is not aimed at protecting women in the workplace but rather at forbidding sexism in the workplace; it is designed not to protect Black and Latino workers but to forbid racism as a motivation behind employment decisions or conduct.

Anti-essentialist theory is relevant to intragroup discrimination because the motive behind such acts of wrongful discrimination is usually ideological, not identitarian. Under this framework, when a female employer discriminates against women in the course of hiring for a position, the relevant factor is arguably not the identities of the parties involved but the ideology that dictates or motivates the act: chauvinism, sexism, or heteronormativity. Similarly, when a Black employer harasses a Black employee by giving him harsher assignments and referring to him as a nword, anti-essentialist theory would characterize it as an act of echoing and reproducing White supremacist ideological norms. Cases of intragroup discrimination often force courts to acknowledge the ideology behind patterns of discrimination, following along the theoretical lines of anti-essentialism. Furthermore, it allows the acknowledgment of intragroup discrimination’s role in constructing group identities.

Anti-classification theory is limited in analyzing such cases, as the theory does not recognize concepts such as stigma, structural ideological oppression, or internalized racism or sexism. Therefore, anticlassificationists’ ability to theorize such dynamics is limited, and the discriminatory act itself might be seen as perplexing and thus resulting from other, non-forbidden reasons. The strong identitarian grip of anti-subordination theory also limits its ability to theorize intragroup discrimination, as doing so requires moving beyond fixed identity classifications rather than deferring to the employer’s identity.³²

II. A Taxonomy of Intragroup Race Discrimination

The U.S. Supreme Court has recognized the possibility of intraracial discrimination on three notable occasions. First, in Castaneda v. Partida, a jury-selection case involving a Mexican American, the Supreme Court stated that “[b]ecause of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of that group.”³³ Second was Saint Francis College v. Al-Khazraji , a case regarding §1981 discrimination³⁴ against an Arab employee who argued racial discrimination.³⁵ Given that his Arab identity was categorized as part of the “White race” by the Court, the Court addressed the possibility of intraracial discrimination. Rejecting the biological understanding of race as a criterion for evaluating discrimination claims, it stated that

It has been found that differences between individuals of the same race are often greater than the differences between the “average” individuals of different races. These observations and others have led some, but not all, scientists to conclude that racial classifications are for the most part sociopolitical, rather than biological in nature.³⁶

This case was understood by lower courts to open up the possibility for same-race discrimination claims under both § 1981 and Title VII.³⁷ Finally, Justice Scalia in Oncale v. Sundowner Services referenced the possibility of same-race discrimination to support his finding that Title VII applies in same-sex discrimination cases.³⁸ The case dealt with a man who claimed he was sexually harassed by male coworkers who taunted and sexually abused him.³⁹ In his opinion, Scalia acknowledged same-sex discrimination and harassment, and also directly addressed same-race discrimination: “In the related context of racial discrimination in the workplace we have rejected any conclusive presumption that an employer will not discriminate against members of his own race.”⁴⁰

Despite these statements, cases acknowledging intraracial discrimination are rare and mostly revolve around discrimination between mem-bers of racial minority groups. Cases acknowledging intraracial discrimination between Whites are almost nonexistent—when they do reach courts, it is usually under a limited set of circumstances.

A. Same-race Discrimination Between Racial Minorities

The overwhelming majority of same-race discrimination cases recognized and discussed by the courts involve racial minorities discriminating against their fellow group members. These cases are discussed at length by Enrique Schaerer,⁴¹ so I will mention them here only briefly.

Same-race discrimination between racial minorities was recognized by courts with few complications. In Walker v. Secretary of Treasury, I.R.S. , the court declared that “[i]t would take an ethnocentric and naive world view to suggest that we can divide Caucasians into many sub-groups but somehow all Blacks are part of the same sub-group. There are sharp and distinctive contrasts amongst native Black African peoples (sub- Saharan) both in color and in physical characteristics.”⁴² Similarly, in Williams v. Wendler the Seventh Circuit posited that “there can, it is true, be (cid:485)racial’ discrimination within the same race, broadly defined, because (cid:485)race’ is a fuzzy term… Light-skinned [B]lacks sometimes discriminate against dark-skinned [B]lacks, and vice versa, and either form of discrimination is literally color discrimination.”⁴³

This line of reasoning relies heavily on anti-classification logic,⁴⁴ which explains same-race discrimination by redrawing the lines demarcating a racial group.⁴⁵ Many other courts, however, have recognized same-race discrimination between racial minorities without resorting to the sub-group analyses. In Parrott v. Cheney , the plaintiff was a Black man who argued that his supervisor, another Black man, had discriminated against him on the basis of race and sex.⁴⁶ While the court dismissed his claims on the ground that he failed to prove a prima facie case of discrimination, it nevertheless acknowledged the possibility of similar claims and focused the criteria for recognizing such discrimination on the types of behavior the law is aimed at remedying, instead of the identities of those suffering from discrimination.⁴⁷ In Belton v. Shinseki , a Black female plaintiff claimed that her supervisor, a Black woman, discriminated against Black nurses.⁴⁸ Here, too, the court recognized same-race discrimination without establishing a sub-group difference between the plaintiff and the defendant. In Mitchell v. Nat’l R.R. Passenger Corp. , the court recognized intraracial discrimination between Blacks while rejecting the subgroup-based reasoning employed by other courts.⁴⁹

Courts have also recognized the possibility of same-race harassment. In Ross v. Douglas Cty. , Odis Ross, a Black employee at Douglas County Correctional Facility, argued that his supervisor, also a Black man, used racial epithets when addressing him, including the n-word and “[B]lack boy.”⁵⁰ The Eighth Circuit rejected the County’s claim that no animus could be proven in this case because Ross and Johnson were of the same race. The court reasoned that

[g]iven the Oncale decision, we have no doubt that, as a matter of law, a Black male could discriminate against another Black male “because of such individual’s race.” Such comments were demeaning to Ross. They could have been made to please Johnson’s White superior or they may have been intended to create a negative and distressing environment for Ross. However, whatever the motive, we deem such conduct discriminatory.⁵¹

Similarly, in Pollock v. City of Philadelphia , a Black employee claimed that his Black supervisor reduced his pay without cause, spat sunflower seeds and shells on the floor and ordered him to clean up the mess, referred to him as a “dumb n****r with an easy job,” and yelled at him in front of others, threatening to “write him up.”⁵² The court ruled that there was “sufficient evidence to raise a genuine issue of material fact” as to whether the hostile work environment was “motivated by racial bias,” adding that “the use of a racial slur, when combined with the broader pattern of mistreatment, is sufficient to raise an inference of racial discrimination.”⁵³

Importantly, these cases reveal that courts are at least partially able to recognize the ideological underpinning of such behavior. Although they do not clearly articulate the possibility of internalized racism, they tie these acts back to White supremacy by suggesting that they were motivated by a desire to impress a White employer, or by assigning particular importance to the use of racial slurs. Under the anti-essentialist approach, when a Black employer discriminates against a fellow Black per-person or shouts racial slurs towards him or her, it should be seen as an act of conforming to White supremacy’s ideological norms.

Despite the existence of cases dealing with intraracial discrimination between racial minorities, very few cases deal with such discrimination between Whites. This is especially interesting given the fact that courts often cite Oncale , which unlike other same-sex harassment cases involving women, discussed harassment between men (i.e., the dominant gender), in order to explain same-race discrimination and harassment. This prompts the following question: what would a race version of Oncale — i.e., when both parties are White—look like? In the following section, I detail the few instances where same-race discrimination cases between Whites have reached the courts and analyze their limited contextual features and theorization.

B. Same-race Discrimination Between Whites

Before I begin, it is important to acknowledge one major difference in Title VII litigation between racial-minority plaintiffs and White plain-tiffs, which revolves around the extra level of protection granted to “protected classes” under Title VII. Title VII, as mentioned above, does not specify the groups it aims to protect. However, after courts recognized how difficult it is to prove discrimination, especially in hiring decisions, the Supreme Court in McDonnell Douglas offered an easier route to proving discrimination for those considered members of a protected class.⁵⁴ Under the McDonnell Douglas method of proof, instead of directly proving discrimination, a plaintiff may show that: (1) the plaintiff is part of a “protected class,” (2) the plaintiff applied for a job (3) for which he or she was qualified, (4) the plaintiff did not get the job, and (5) the position remained open even after the plaintiff was rejected.⁵⁵ If all these require-ments are met, then the burden of proof shifts to the employer to provide a legitimate, nondiscriminatory reason for his or her decision, which the plaintiff may then rebut.⁵⁶

Notably, because they are not members of a protected class, White plaintiffs cannot prove discrimination via the McDonnell Douglas test, which might explain why there seem to be fewer cases dealing with same-race discrimination between Whites.⁵⁷ This assumption draws further support from what Jessica Clarke has coined “protected class gate-keeping,” a tendency on the part of courts to read the McDonnell Douglas “protected class” requirement into all Title VII claims, limiting the ability of plaintiffs not from protected classes to claim discrimination under the law.⁵⁸

However, protected class gatekeeping explains only part of the picture. Another reason for the lack of intra-White discrimination cases is the mis-theorization and under-theorization of the cases that do reach the courts. In short, I argue, the courts’ tendency to de-racialize Whiteness— to view race as something that only racial minorities possess—has led them to mis-theorize the few instances where intra-White discrimination is discussed. Thus, this section will show, recognized cases of intraracial discrimination are confined almost exclusively to scenarios involving racial minorities.

A review of same-race-employment-discrimination cases between Whites reveals that they arise in three circumstances. The first two are what I call “weak” intraracial discrimination cases, meaning that the intraracial component in these cases is accompanied by another form of discrimination. The third type I call “strong” intraracial discrimination cases because discrimination by Whites against other Whites is located at the center of the legal discussion.

The first “weak” set of intraracial discrimination occur where there is an ethnic difference between the parties, but the court nevertheless refers to both as “White.” This dynamic is found in Castaneda v. Partida and Saint Francis discussed above, which recognized discrimination against Mexican and Arab Americans, respectively.⁵⁹ A similar analysis is at play in Covalt v. Pintar , which also deals with discrimination against a Mexican American plaintiff.⁶⁰ While these cases are interesting in terms of how courts draw and understand the borders of Whiteness,⁶¹ the theoretical challenge they pose to the discussion in this Article is minimal, since it is often recognized that ethnicity is closely linked to race.⁶² These cases can thus be framed as closer to inter racial discrimination than intra racial discrimination.⁶³

The second type of “weak” same-race discrimination cases are interracial solidarity doctrine cases. Under the interracial solidarity doctrine, Whites may sue other Whites for discriminating against racial minorities in a way that violates their right to diversity or their interest in color-blindness.⁶⁴ One of the first cases recognizing this possibility was Trafficante v. Metropolitan Life Insurance Co. , a 1972 case where a White tenant filed a Title VIII housing-discrimination claim jointly with a Black tenant, both arguing against a landlord who discriminated against Black housing applicants.⁶⁵ The White tenant’s standing was challenged by the housing company, which argued he did not suffer any injury from the discrimination.⁶⁶ Nevertheless, the Court sustained his claim, ruling that the plaintiff suffered an injury to his interest in interracial association.⁶⁷ The interracial solidarity cases pose a greater challenge for theorizing Whiteness, as they bring to the surface instances where the interests of White individuals clash in legally recognized ways.⁶⁸ However, here, too, discrimination against Whites accompanies another type of interracial discrimination: that which occurs between Whites and racial minorities.

The “strong” type of cases involves claims of associational discrimination, where Whites discriminate against other Whites because of their association and relationship with racial minorities. While these cases do resemble those involving the interracial solidarity doctrine, they are distinct. Interracial solidarity cases emerge from claims of direct discrimination against racial minorities that have an indirect impact on the White plaintiff, whereas in associational discrimination cases, intraracial discrimination is direct, and is the main dynamic discussed by the court.⁶⁹ These cases will serve as the focus for the next section.

III. Theorizing Intra-White Discrimination Via the Stereotype Doctrine

A. The Current Framework—Associational Discrimination

Title VII’s language does not recognize associational discrimination expressly.⁷⁰ While some recognition of associational discrimination claims is found in the lower courts,⁷¹ for many years federal courts did not recognize associational discrimination claims, adhering to a strict interpretation of Title VII.⁷²

However, in Parr v. Woodmen of the World Life Insurance Co. , the Eleventh Circuit—basing its decision on Title VII’s goals—recognized the possibility of race-based associational discrimination.⁷³ The plaintiff in Parr was a White man who was rejected from a sales position after the manager discovered he was married to a Black woman. The court acknowledged that this employment decision was made “because of race.”⁷⁴ Similar claims, revolving around interracial marriage, were later recognized by the Sixth and Fifth Circuits.⁷⁵ In all these cases, the courts stressed that it was because of the plaintiff s ’ race that they faced discrimination.⁷⁶

Associational discrimination claims filed by White plaintiffs based on a friendship or workplace relationship with racial minorities rather than marriage proved more challenging. In Barrett v. Whirlpool Corp. , three White female plaintiffs claimed they suffered a hostile work environment due to their association with Black colleagues.⁷⁷ One plaintiff testified that she was called “a bitch” after commenting on racial remarks directed at Black employees. White coworkers stopped talking to her and gave her “strange looks” every time she was friendly to Black colleagues. Her supervisor began treating her worse than her colleagues. Another plaintiff testified that she was mocked and made fun of whenever she complained against the usage of the n-word and was told to “stay with her own kind.”⁷⁸ Further, she argued that when she sought a promotion she was told by her supervisor that she would never be promoted due to her relationships with African American coworkers.⁷⁹ The district court rejected the plaintiffs’ claim, reasoning that they failed to demonstrate that their relationship with their Black coworkers constituted a sufficient associational claim. The district court concluded that there is “no evidence, however, that those friendships constituted anything other than the casual, friendly relationships that commonly develop among co-workers but that tend to be limited to the workplace.”⁸⁰ The Sixth Circuit reversed, arguing that Title VII protects individuals, even when they are not mem-bers of a protected class, if they are victims of discrimination due to their association with protected individuals.⁸¹ Furthermore, the court clarified that if a plaintiff shows discrimination based on association with a racial minority, the degree of association is irrelevant.⁸²

Similarly, in Reiter v. Center Consolidated School District No. 26-JT , a White teacher claimed that her employment was not renewed due to her “close association with the Spanish citizens of the district.”⁸³ The court accepted her claim, arguing that “[t]he underlying rationale in these cases is that the plaintiff was discriminated against on the basis of his race because his race was different from the race of the people he associated with.”⁸⁴ In Whitney v. Greater N.Y. Corp. of Seventh-Day Adventists , the plaintiff argued that her “casual social relationship” with a Black man led to her discharge from the church.⁸⁵ The Southern District of New York held that “the plaintiff’s race was as much a factor in the decision to fire her as that of her friend. Specifying as she does that she was discharged because she, a White woman, associated with a Black, her complaint falls within the statutory language that she was ‘discharge[d]… because of [her] race.’”⁸⁶

The associational cases’ “strong” relationship to intra-White discrimination provides an interesting site for examining the “wrong” of this dynamic. Specifically, an examination of the courts’ theorization (and under-theorization) of this type of discrimination reveals paradigmatic problems that extend beyond these cases and help explain the limited recognition of same-race discrimination between Whites, and the limited understanding of Whiteness under Title VII in general.

B. The Problem with the Existing Framework

The reasoning offered by courts to explain why associational cases are considered racial discrimination provides little to work with. In most cases, judges merely declare that discrimination due to one’s association with racial minorities is discrimination “because of race” but do not explain how or why that is the case or why such discrimination is because of the plaintiff ’ s race, rather than the race of those with whom the plaintiff associates.⁸⁷

Some courts, however, provide a limited explanation for their decisions. One example is found in Barrett .⁸⁸ The court reasoned that, even though the White plaintiffs were not a member of a protected class, one of them did suffer “direct harassment resulting from her associations with [B]lack employees”—i.e. protected individuals.⁸⁹ Here, it seems, the protection the court grants to White plaintiffs is contingent upon the protection Title VII and the McDonnell Douglas test grant to racial minorities. Put differently, the White plaintiff’s protection latches onto the protected-class status of racial minorities.⁹⁰ This line of reasoning explains the turn some courts have taken in examining the degree of association between the plaintiff and the racial minorities with whom he or she is associated: if these minorities’ protection rubs off on the White plaintiff, it must be restricted to cases where the degree of association between them and the plaintiff is more than casual.⁹¹ Notably, despite courts’ rejection of this criterion over the years, recent cases have reopened these debates by rejecting claims of associational discrimination based on more nominal levels of association with racial minorities.⁹²

A similar but distinct line of reasoning is found in Reiter and Holcomb . While in Barrett the court recognized the plaintiff’s standing as deriving from the racial minority in the situation,⁹³ in these cases courts explain that associational discrimination is “because of race” by focusing on the association itself.⁹⁴ In Holcomb , the court argues: “because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race.”⁹⁵ Reiter further develops this logic, adding that the key point is that the plaintiff’s race “was different from the race of the people he associated with.”⁹⁶ Here, too, the problem is not the plaintiff’s race per se , but rather the entanglement of the plain-tiff’s race with African Americans, Hispanics, or other racial minorities. This reasoning leads back to courts’ scrutiny of the type of “protected associations” that may justify court intervention.

Neither line of reasoning leads to a finding of discrimination based on the plaintiff’s race alone. Further, even though I argued earlier that the interracial solidarity doctrine and the associational discrimination cases are distinct, both share one major similarity. In both, courts are only able to acknowledge racial discrimination when other racial minorities are in the picture.⁹⁷

In that sense, both signify one major privilege of Whiteness: its invisibility.⁹⁸ According to the invisibility thesis, one of the major privileges associated with being White is that White people do not belong to “a race”—only racial minorities do.⁹⁹ Under the ideological regime of White supremacy, “White” norms, codes of behavior, and perspectives are considered the default, and thus are neutralized and seem to be objective and colorless.¹⁰⁰ Accordingly, courts in both associational discrimination cases and interracial solidarity doctrine cases do not see the color White, but only the shadows cast onto it by Black or Brown people. Only their presence allows courts to recognize racial discrimination against White individuals. By limiting same-race discrimination to instances in which racial minorities are present, intraracial discrimination between Whites is recognized only in a rigid set of circumstances.

Instead of conceptualizing associational cases based on the racial identities of those with whom the plaintiff associates or according to the difference between the plaintiff’s race and his or her associate’s, I suggest theorizing these cases via the stereotype doctrine. According to such theorization, plaintiffs in associational cases are discriminated against for failing to conform to stereotypes about Whiteness held by their employer or supervisor. Under the stereotype doctrine, racial minorities’ involvement would not be necessary for the court to acknowledge racial discrimination. Furthermore, such theorization manages to “see” color even when that color is White.

The stereotype doctrine first originated in sex discrimination jurisprudence.¹⁰¹ Within that context, courts have managed to recognize intragroup discrimination between men, usually in same-sex harassment cases.¹⁰² This is important, as men are characterized by the “invisibility” of their gender just as Whites are characterized by the “invisibility” of their race. In the coming section, I thus detail doctrinal and theoretical developments in same-sex stereotyping and harassment cases to draw lessons for intragroup race-based discrimination between Whites.

C. Lessons From Same-sex Stereotyping and Harassment

The doctrine of sexual harassment, as well as the doctrine of sex stereotyping, both emerged from the “traditional” feminist paradigm of a female plaintiff and a male wrongdoer.¹⁰³ Sexual harassment was first recognized as sex discrimination in Meritor Savings Bank v. Vinson, where Mechelle Vinson sued her employer for forcing her to have sexual relations with him, touching her, and forcefully raping her on multiple occasions.¹⁰⁴ Justice Rehnquist declared that Title VII’s language is not limited to “tangible” discrimination and recognized sexual harassment, both in the form of quid pro quo sexual advances and hostile work environments as sex discrimination.¹⁰⁵ Three years after Meritor Savings, the Supreme Court’s Price Waterhouse decision first introduced the idea of sex stereotyping as a form of sex discrimination into Title VII.¹⁰⁶ Ann Hopkins, an exemplary employee, claimed that she was denied partnership due to sex discrimination, because of her failure to conform to feminine stereo-types.¹⁰⁷ She was described as “overly aggressive” and was advised to dress “more femininely” and attend “charm school” in order to improve her chances of partnership, despite the fact that aggressiveness and toughness were qualities the firm sought in partners.¹⁰⁸ The ruling in Price Water-house determined that stereotypes regarding how women should behave, how they should talk, or dress, or conduct themselves in general, amount to sex discrimination prohibited under Title VII.¹⁰⁹ Justice Brennen specifically condemned the “Catch 22” for women in the workplace: “out of a job if they behave aggressively and out of a job if they do not.”¹¹⁰

Despite the inter group origin of these doctrines, both progressed beyond their initial categories to account for intragroup discrimination, including discrimination between members of the dominant group. At first, courts were reluctant to recognize same-sex harassment cases involving men.¹¹¹ Critiquing this tendency, Katherine Franke argued these cases ought to be recognized as same-sex harassment, as they “clearly show how sexually harassing conduct can effectively enforce particular gender orthodoxies in the workplace.”¹¹² Describing the “wrong” of sexual harassment from the margins of same-sex harassment cases, Franke argues that sexual harassment should be seen as a form of sex discrimination because it operates as a “technology of sexism.”¹¹³ That is, “[i]t is a disciplinary practice that inscribes, enforces, and polices the identities of both harasser and victim according to a system of gender norms that envisions women as feminine, (hetero)sexual objects, and men as masculine, (hetero)sexual subjects.”¹¹⁴ Same-sex harassment between men is thus theorized as the way in which members of the dominant group police fellow members in order to preserve the ideological paradigm that grants them this exact dominance.¹¹⁵ Anita Bernstein makes a similar argument with regard to stereotyping in general, arguing that stereotyping is a “technology of prejudice,” which places an unjustifiable constraint on its subjects.¹¹⁶

One year after Franke’s article, the Supreme Court decided Oncale , officially recognizing same-sex harassment as sex discrimination under Title VII.¹¹⁷ Joseph Oncale worked on an oil platform in the Gulf of Mexico where he was repeatedly subjected to severe sexual harassment by his colleagues and supervisors, who called him names “suggesting homosexuality,” threatened him with rape, and sodomized him with a bar of soap.¹¹⁸ Justice Scalia, delivering the opinion of the court, clarified that Title VII protects both men and women and, accordingly, grants protection from same-sex harassment.¹¹⁹

The Oncale ruling, combined with the concept of sex stereotyping developed in Price Waterhouse, has led lower courts to theorize same-sex harassment according to the stereotype doctrine.¹²⁰ In these cases, sex stereotyping and harassment are discussed jointly, with sexual harassment as the discriminatory practice and stereotypes regarding how men should behave (according to masculine standards) providing the proof that the harassment was “because of sex.”¹²¹

This case study of same-sex harassment and stereotyping demonstrates the possibilities that open up once a theory of discrimination moves from identity to ideology. Sexism as ideology, these cases and Franke’s theory indicate, must enforce itself on all parties within the workplace in order to maintain its societal grip.¹²² Sexual harassment under this conceptualization is not an expression of sexual desire or of men demonstrating dominance over women. Instead, it is a technology through which sexism and stereotypes regarding masculinity and femininity are enforced on all members of the workplace.¹²³

Same-sex stereotyping and harassment cases should provide a relevant framework from which to draw insights into same-race discrimination. Framing harassment and stereotyping as technologies of sexism in the workplace, made effective through the subordination of both men and women, invites a parallel discussion in race.

Such an analogy should be approached with caution, as gender and race operate differently as systems of “othering.” Accordingly, gender stereotypes play a pivotal role in enforcing the gender binary, whereas in the racial context racial minorities are often pressured to present themselves according to White norms.¹²⁴ However, race, like gender, is an ideology and a disciplinary practice, and, like gender, it enforces and polices identities.¹²⁵ As critical race theorists explain, race forms through daily meeting points of institutional and individual power.¹²⁶ Thus, “we are raced through a constellation of practices that construct and control racial subjectivities.”¹²⁷ The applicability of principles underlying same-sex discrimination jurisprudence is particularly evident in associational discrimination cases, as acts of associational discrimination serve to enforce and maintain a racial binary.¹²⁸

D. Back to Race—Intra-White Discrimination as Stereotyping

The understanding of race as a technology of production rather than an identity, as a relational dynamic that produces subjectivities and allocates resources and opportunities rather than a state of being, prompts us to isolate and study these technologies. When a White employee is told to “stay with her kind,”¹²⁹ more than just associational discrimination is at play. This is a specific type of racial work aimed at subjecting that employee to stereotypes regarding Whiteness held by her supervisor or colleagues. Under this paradigm, Whiteness is seen as “pure,” an asset that may be diminished by the act of mixing.¹³⁰ “Strange looks” in the hallway at White employees who associate with Black coworkers send a message that the plaintiff has failed to conform to her White colleagues’ expectations of her as a White person.¹³¹

Such discrimination, manifesting as hostile work environments, echoes Oncale and other same-sex discrimination cases involving men. In both scenarios, members of the dominant group police their fellow members in order to maintain the group’s identity, content, and borders. And, following the main logic of Price Waterhouse , this discrimination stems from wrongful stereotypes (as expectations) regarding race.

One of the key stereotypes regarding Whiteness is indeed its purity.¹³² Law and social practice, from the notorious “one drop rule,”¹³³ to prohibitions of interracial marriage,¹³⁴ to de facto and de jure segregation of schools, neighborhoods, and workplaces,¹³⁵ not only reflect expectations regarding Whiteness’s purity and inherently assumed supremacy,¹³⁶ but they are also the mechanisms that maintain it as such.¹³⁷

The associational discrimination cases demonstrate that within workplaces governed by White supremacist ideologies, we can detect racial work at play through intragroup dynamics between Whites. Indeed, workplaces are not only gendered, but also raced.¹³⁸ As Devon Carbado and Mitu Gulati argue, workplaces are often governed by racial ideologies.¹³⁹ Thus, a Black employee may be incentivized to conceal racial critique or opinions in order to avoid appearing to be “racially sensitive, uncollegial, a potential troublemaker.”¹⁴⁰ Carbado and Gulati’s work, as well as other scholarly work on workplace racialization, revolves mostly around how such racialization affects racial minorities and the extra burden it places on their shoulders. Such arguments are important, as they allow antidiscrimination theory to recognize the often-hidden ways in which racism and racial stereotypes intermingle with inequality. However, little attention has been paid to how the White workplace inherently requires racial work within the White racial group in order to subject its members to racial expectations regarding Whiteness.

Importantly, Whiteness, like masculinity, is performed.¹⁴¹ As with any ideology, nonconformity by group members threatens its sustainability.¹⁴² Some-sex discrimination cases illustrate the point perfectly. When men behave or perform their identity in ways that do not conform to the ideal of masculintity, they risk devaluating the “worth” of maculinity, which is associated with dominance and control of women.¹⁴³ Thus, group members are prompted to police men’s behavior in order to force them to conform to patriarchy’s ideological lines.¹⁴⁴

Louis Althusser’s idea of interpellation—specifically the act of “hailing”—helps crystallize how same-race discrimination cases work within the workplace.¹⁴⁵ Althusser’s concept of interpellation is relevant here, as it ties together ideology and interpersonal exchange. Ideology, according to Althusser, constitutes concrete subjects through the act of interpellation.¹⁴⁶ The ideological apparatus manifests itself through rituals and practices in which individuals take part.¹⁴⁷ When individuals are recognized and recognize themselves and their designated role in said rituals, they are interpellated into this ideology and thus become its subjects.¹⁴⁸ When a police officer, for instance, hails you in the street, saying “Hey, you there!” and you turn around, you become a subject via the mere act of turning because you recognize this hail as being addressed to you and you take part in the practice or ritual of the governing ideology. You are formed as a specific type of subject—a citizen that follows the instructions and rituals of the regime, and inherently, its ideological apparatus.¹⁴⁹

Althusser’s idea of interpellation is aimed at highlighting subject formation through ideology in more subtle interactions. However, his argument should apply a fortiori to harsher interactions of harassment and discrimination. As previously mentioned, Bernstein describes stereotypes as a “technology of prejudice” that unjustly constrains the individual.¹⁵⁰ These constraints, she argues, emerge from both external and internal stereotyping.¹⁵¹ I argue that this claim ought to be understood, in Althusserian terms, as the way in which stereotyping as interpellation produces individuals as subjects who recognize themselves in the relevant ideological apparatus regulating the workplace. Internal constraints are therefore also inherently the outcome of external constraints that form the individual as a specific subject through interpellation. Put differently, when someone forces us to recognize ourselves in societal stereotypes, and we perceive them to be directed at us, they can also become internal(ized) constraints. Understanding how ideology functions in situations of workplace discrimination is important because it helps highlight the structural problem arising from workplace discrimination as well as the reason such discrimination is “because of race.” Comments such as “stay with your kind,” we now see can echo a specific type of ideology, and interpellate employees into its subjects.

This recognition of intraracial racialization between Whites is therefore in line with the stereotype doctrine and Title VII. Acts of expectation policing within the workplace are not only an enforcement of White supremacy but are also forbidden racial stereotyping, which amount to forbidden racial discrimination under Title VII.

IV. New Avenues for Intra-White Discrimination: “White Trash” as Failing White Performativity

The value of Whiteness—or the property interest in Whiteness¹⁵²— for White supremacy is not threatened solely by the act of mixing, although it is one of the perceived “threats” to it.¹⁵³ Examining other stereotypes regarding Whiteness as key in the production of Whiteness and White supremacy may open other avenues for combating regimes of Whiteness within the workplace. Such dynamics do not have to include racial minorities for courts to recognize that race is at play.

One example of intra-White discrimination may illuminate such possibilities. Camille Gear Rich discusses in her article “Marginal Whiteness” the category of “low-status Whites.” Marginal Whites, according to Rich, are those who “have more limited access to White privilege”¹⁵⁴ and enjoy it only in “contingent, context-specific ways.”¹⁵⁵ Further, Rich argues, high-status Whites may impose economic and dignitarian costs on low-status Whites in order to preserve resources for themselves or in order to disguise anti-Black discrimination as racially neutral.¹⁵⁶ These dynamics, however, are not translated to legal language via current antidiscrimination doctrine.¹⁵⁷

Indeed, similar to the understanding that Blackness is not one singular racial experience, as Gulati and Carbado’s The Fifth Black Woman illustrates, there are varying ways to perform Whiteness, and some are more socially acceptable and socially rewarded than others.¹⁵⁸ To expand upon Harris’ idea of Whiteness as property,¹⁵⁹ not all types of Whiteness performativity yield similar “value.”

The type of discrimination suggested by Rich—between low- and high-status Whites—could potentially be litigated via the stereotype doctrine in cases where the circumstances indicate that the motivation for discrimination was based on stereotypes or expectations regarding the “right” way to perform Whiteness.¹⁶⁰

One such argument is presented by both Matt Wray and Nancy Isenberg, who study the social othering of poor rural Whites, or “White trash.”¹⁶¹ As Wray argues, individuals referred to as “White trash” were historically seen by high-status Whites as a social group threatening the “contamination” of the White race and were accordingly perceived as “filthy,” “lazy,”¹⁶² and morally and evolutionarily inferior.¹⁶³ Isenberg adds that White trash individuals were socially understood as those “who lack the civic markers of stability, productivity, economic value, and human worth .”¹⁶⁴ This is specifically relevant to our discussion as stereotypes regarding White trash collide with qualities employers seek in potential employees. Accordingly, stereotypes against poor rural Whites can lead to employment discrimination.¹⁶⁵

Stereotypes associated with poor rural Whites should not be mistaken as merely class stereotypes. Importantly, they were always created to distance White trash from the core of Whiteness, not affluency;¹⁶⁶ scientists described their “yellowish”, tallow-colored skin, which was explained both through the depiction of them as “clay eaters” as well as through interracial sex “leaving traces” of “negro blood.”¹⁶⁷

Furthermore, similar symbolic properties, characteristics, and traits were used from very early on to refer to both Blacks and poor Whites. As Wray notes,

[b]ehaviors and attitudes regarding conventional morality and work were particularly salient here, with the lower classes and lower races typically characterized as holding deep aversions to both. Also highly salient in the minds of observers were behaviors regarding cleanliness—the lower sorts were consistently characterized as dirty, smelly, and unclean. What is striking about reading historical documents of the period then is the similar ways in which poor Whites, Indians, and Blacks are described—as immoral, lazy, and dirty.¹⁶⁸

Certainly, stereotypes regarding Whites as clean, moral, and hard-working historically constituted the racial lines between Whites and Blacks in the U.S. and thus constituted the core around which the concept of Whiteness was formed.¹⁶⁹ Accordingly, discrimination against White trash could be analyzed as stemming from their failing performance of Whiteness.

Instances where such stereotypes are the motivation behind intraracial discrimination between Whites should be seen as a form of policing Whites back into the boundaries of acceptable Whiteness and thus as a form of illegal racial discrimination. Notably, while discriminating against or stereotyping poor rural Whites may stem partially from class, § 703(m) of Title VII acknowledges the possibility of mixed-motive discrimination. Thus, being able to show that discriminatory treatment stemmed partly from stereotypes about the “proper” performance of Whiteness is sufficient even if the discrimination was also motivated by other reasons.

A better, more nuanced theorization of same-race discrimination cases could account for the possibility of discrimination by high-status Whites against low-status Whites and explain it as racially motivated discrimination.

V. The Anti-Subordination Challenge

At the beginning of this Article, I presented three competing views on antidiscrimination to argue that anti-essentialism is favorable both in advancing Title VII’s goals and in dealing with intragroup discrimination.¹⁷⁰ However, my argument regarding intraracial racialization may also resonate with both anti-classification and anti-subordination theorists.

The challenge posed by anti-classificationists is rather minimal. Even though I have argued that anti-essentialism is better suited to explaining the phenomenon of intraracial racialization, I believe that once it is theorized, anti-classificationists would agree that any race-based classifications between White workers are unacceptable.

Anti-subordination theorists might have a harder time accepting my proposition. Some might fear that allowing White plaintiffs to sue for racial discrimination is the legal manifestation of “all lives matter”¹⁷¹ and that it risks ignoring the reality in which racial minorities are the primary targets of racial discrimination in the workplace. Further, and especially due to the damaging effect that White plaintiffs have had on the advancement of Title VII litigation, for instance in Ricci ,¹⁷² anti-subordination theorists might argue that opening up more legal avenues for Whites to claim racial discrimination requires meaningful justification. In this section, I dispel some of the apprehension this argument might cause and present several arguments that illustrate how the under-theorization of intra-White discrimination is harming racial minorities’ interests, thus highlighting the positive externalities of my suggestion for the goals of anti-subordination theory.

A. De-racialization of Whiteness Grants White Employers Immunity From Lawsuits

On a pragmatic level, the inability to acknowledge diverse scenarios of intra-White discrimination grants White employers immunity from discrimination lawsuits that Black employers do not enjoy.

Recall that under the courts’ broad understanding of same-race discrimination between racial minorities, discrimination “because of race” has been analyzed and understood according to the relevant circumstances of each case and includes acts of racial harassment in the form of repeated racial slurs.¹⁷³

In striking contrast, and in keeping with the example of high/lowstatus Whites, a review of all Title VII cases including the phrase “White trash” or “hillbilly” reveals that there are almost no cases in which White employers have been sued for referring to their employees as “White trash.”¹⁷⁴ Rather, the majority of those accused of using this term within these cases are racial minorities,¹⁷⁵ either in “reverse racism” discrimination cases¹⁷⁶ or when racial minorities sue for racial discrimination, and then face accusations that they themselves engaged in a racially charged manner by referring to colleagues or supervisors as “White trash.”¹⁷⁷

This is not a reflection of societal reality, but rather of the narrow range of cases that find a place within Title VII courts. It thus appears that within the imagined borders of Title VII litigation, mostly racial minorities use the words “White trash” to refer to White colleagues and employees and, almost exclusively, they are the ones reprehended for doing so.

In only a few instances did White employees try to argue that they were harassed by other White coworkers or supervisors using the term “White trash.”¹⁷⁸ In some of them, female plaintiffs attempted to explain the use of the term by their male supervisor as creating a sex-based hostile work environment. These were mostly rejected for failing to prove that the term was motivated by their sex.¹⁷⁹ In the only case where a White employee claimed a race-based hostile work environment due to the use of the term “White trash” by her White coworkers, the court granted the defendant’s request for summary judgment on the hostile work environment claim, concluding that the plaintiff failed to prove that her col-leagues had any “racial animus” towards her.¹⁸⁰

The current understating of same-race discrimination thus reinforces a kind of meta-inequality—inequality in the enforcement of antidiscrimination laws where White supervisors and employers receive de facto immunity from discrimination charges to which non-Whites are currently exposed. The inability to acknowledge intraracial discriminatory pat-terns within Whiteness, except for specific and limited circumstances, creates a shield around Whiteness that protects the most powerful mem-bers of the group.¹⁸¹

B. De-racialization of Whiteness Redirects Whites’ Claims Towards Racial Minorities

If various intra-White conflicts and discriminatory practices exist in society but receive no legal redress through antidiscrimination laws, instances of discrimination remain individualized and lose social meaning and importance. The assumed cohesiveness of Whiteness within Title VII thus pits marginalized social groups from different races against each other, at times placing the advancement of Blacks and other racial minorities at risk.¹⁸²

The following hypothetical might help illuminate my point. Let’s assume, for this discussion, that a White person (Bob) who fails to conform to White stereotypes is subject to bias by fellow Whites. He applies for a job with a White employer, and, after several remarks from his potential employer about rural Whites not being “White enough” or good enough for the job, or questions regarding his hygienic routine, he is not accepted for the position. Now let’s say that in scenario A, another White person (with different performativity markers) gets the job. In scenario B, a Black candidate (regardless of his status) gets the job rather than Bob. Under the current theorization of same-race discrimination between Whites within Title VII, only in scenario B does Bob have legal recourse, and he can only articulate it as “reverse racism” or as illegitimate affirmative action, arguing that he did not get the job because he is White. Perhaps due to cognitive dissonance (along with a racist bias), Bob will eventually convince himself that being White (rather than not being White enough) is what cost him the job. Title VII’s inability to acknowledge the complex patterns of intraracial racialization prevents Bob from describing his grievance differently.

An inability to recognize the nature of discrimination between Whites thus places racial minorities’ advancement (e.g., job opportunities) at risk of being dismissed as resulting from bias or affirmative action while similar advancements by Whites are framed as neutral and merit-based.

C De-racialization of Whiteness Reinforces the Category of Whiteness as

Neutral and Invisible

The inability to acknowledge the various intraracial discriminatory practices between Whites leads to the construction of Whiteness as a cohesive, singular, natural, and, simultaneously, invisible category.¹⁸³ As mentioned above, one of the main technologies of Whiteness is its ability to seem as the norm, thus masking its racial coloring.¹⁸⁴ Under this paradigm, Whiteness must be constantly constructed and concealed.¹⁸⁵ Acknowledging the racial work necessary to maintain Whiteness exposes Whiteness as a project of White supremacy. This is most evident in associational discrimination cases, in which racial work in preventing the mixing of races historically has been more visible. Revealing and exposing hidden divisions within Whiteness may also subvert the natural and neutral conventions regarding Whiteness. Acknowledging that not all Whites perform Whiteness in the same way and do not enjoy Whiteness in similar ways forces us to see Whiteness not as flowing naturally (and merely) from skin color, biology, or ancestry but rather as a mechanism of power, constructed on an ongoing basis to maintain and justify dominance and supremacy.

In addition, providing White plaintiffs with legal avenues to name, blame, and claim¹⁸⁶ intraracial racialization and discrimination may also help undermine these marginal White groups’ current broad loyalty to Whiteness and fellow Whites simply due to their assumed Whiteness. Such a legal development may have significant implications for the viability of Whiteness as a social project.¹⁸⁷

My project is therefore not an attempt to merely describe low-status Whites—for instance, through the rhetoric of identity politics—in what Nancy Fraser would describe as an “[a]ffirmative strategy for redressing injustice.”¹⁸⁸ Rather, my project uses divisions within Whiteness as a catalyst for transformative change towards its dismantling—one that may push people away from the fiction of Whiteness and challenge the seemingly natural/biological regime of White supremacy.¹⁸⁹

D. De-racialization of Whiteness Maintains the Whiteness of Workplaces

One of the challenges to antidiscrimination law generally, and to the stereotype doctrine specifically, is how to address the discriminatory norms of the workplace via existing legal tools. In Price Waterhouse , the Court rightly recognized that the defendant’s company encouraged norms socially associated with masculinity, such as aggressiveness and toughness.¹⁹⁰ Recall Justice Brennan’s critique of the “Catch 22” for women in the workplace: out of the partnership track if not aggressive enough, and out of it if they are.¹⁹¹ While the struggle to allow women to behave aggressively in the workplace is a necessary step towards equality, it still only challenges half of the equation, as it accepts the gendering of the workplace as masculine, leaving that aspect of hetero-patriarchy intact.¹⁹² “Catch 22” arguments are thus powerful, but also limiting. When women have tried to challenge masculinity norms in the workplace, in instances without similar double binds, these attempts generally have been unsuccessful. This is effectively illustrated by cases where women tried challenging grooming codes in the workplaces,¹⁹³ as well by the Wal-Mart decision.¹⁹⁴

Interestingly, it was the same-sex discrimination cases between men that forced courts to tackle the hyper-masculinity of many workplaces.¹⁹⁵ The male privilege of performing masculinity without being stereotyped or discriminated against rendered the “Catch 22” argument irrelevant— men simply do not face the type of “Catch 22” situation described by Brennan. However, the inability to fall back on “Catch 22” arguments focused the discussion around the various ways in which the masculinity of workplaces harmed men who failed, or simply did not want to conform to expected masculine behavior.¹⁹⁶

Acknowledging the limited scope of “Catch 22” arguments is important when shifting our discussion from sex back to race. As Kenji Yoshino stresses, while racial minorities are often required to “cover” traits that do not conform to the dominant White culture, women are socially expected to simultaneously “cover” and “reverse cover.”¹⁹⁷ Put differently, racial minorities who “dress [W]hite” or “speak unaccented English” find safe harbor while women are generally expected to act feminine.¹⁹⁸ Therefore, “Catch 22” arguments are mostly irrelevant with regard to racial discrimination. This could explain why Title VII jurisprudence has not developed a racial stereotype doctrine alongside the sex stereotype doctrine.¹⁹⁹

However, the general expectation that racial minorities “cover,” while sparing them the “Catch 22” scenario, does not mean they do not bear the costs of conforming to the White norms of most workplaces. The often-invisible racialization of many workplaces places a heightened burden on the shoulders of racial minorities to perform their working identity strategically. Such acts of strategic performance consume time and effort, and they often come with psychological costs and potential risks.²⁰⁰

Enabling White plaintiffs to sue employers who pressure them to perform Whiteness in a certain way could help racial minorities in challenging the racial norms of the workplace. By grounding same-race discrimination between Whites in the stereotype doctrine White plaintiffs would be incentivized to expose the racialized nature of Whiteness and the mechanisms through which it polices employee behavior. Exposure of hidden norms opens the way for their subversion. Opening legal avenues for White plaintiffs to sue their White employers or supervisors is therefore in the interest of racial minorities.

VI. Practical Suggestion

This Article argues that same-race discrimination between Whites ought to be theorized and understood via the stereotype doctrine. While the practical implications of this argument are self-evident, it is nevertheless worth sketching very briefly how such cases might look.

Applying the stereotype doctrine, courts should allow a White plaintiff to prove a prima facie case that discrimination was “because of race” by showing that the discrimination stemmed from perceived failure to properly perform their Whiteness. Whether a plaintiff has proven such a prima facie case due to stereotypes regarding Whiteness should be decided according to the unique circumstances in each case.

Accordingly, the doctrine of racial stereotypes regarding Whiteness will develop on a case-by-case basis. This is important, as the content of Whiteness shifts and changes according to the needs of the ideology of White supremacy. The rise of the Alt-right and White supremacy movements since Trump’s election in 2016, for instance, could bring forth new dynamics of intraracial racialization that courts will have to address.²⁰¹ Such movements may charge Whiteness with new meanings that expand the inner expectation from its members beyond the idea of “purity,” already addressed under the associational cases. A flexible doctrine of racial stereotypes, and its adaptation to same-race discrimination patterns between Whites, would thus be able to accommodate such changes.

Finally, the McDonnell Douglas framework, which requires that plaintiffs be members of a protected class, will not be available to White plaintiffs. This asymmetry between White plaintiffs and racial minorities is appropriate, given the asymmetry between the respective privilege of Whites and racial minorities. While the invisible nature of Whiteness could make it hard for White plaintiffs to prove that the discrimination they faced was “because of race,” cases in which the enforcement of White norms is overt should nevertheless lead courts to acknowledge the possibility of race-based discrimination between Whites. With time and doctrinal developments, proving such patterns of same-race discrimination should become easier.

Conclusion

Matt Wray finishes his book Not Quite White with an excerpt from Erskine Caldwell’s God’s Little Acre .²⁰² The novel depicts a group of poor southern Whites digging for gold without luck. Their “futile mining efforts are destroying what little is left of their land.”²⁰³ The secret to finding gold, local folk wisdom says, is finding an albino. “[A] man ain’t got as much of a chance as a snowball in hell without an albino to help,” one of the characters, Pluto, says at the beginning of the novel.²⁰⁴ Albinos apparently possess the magical ability to find gold. When protagonist Ty Ty Walden inquires as to what an albino is, Pluto explains: “An albino is one of these all-white men, Ty Ty. They’re all white; hair, eyes, and all, they say… It’s the all-whiteness, Ty Ty.”²⁰⁵ So, their only way to find gold and to enjoy wealth and success is “to have pure Whiteness on their side.”²⁰⁶

This anecdote illustrates my argument regarding Whiteness as a social goal rather than merely a biological trait. The magical albino, much like the “ultimate macho man” or the “perfect lady” (that Price Water-house executives were envisioning), serves as a mythical state of being that no one can actually fully obtain²⁰⁷ but that everyone nevertheless seeks.²⁰⁸ The albino here is the epitome of the White man—his blood is pure, removing any doubt or suspicions of interracial association. He is the one who can find gold and is thus the one poor Whites must aspire to find, to be .

The efforts to attain the idealized version of Whiteness, masculinity, or femininity define social categories and boundaries.²⁰⁹ The inevitable gaps between the ways we perform our identities and the mythical ideals we aspire to reach are the spaces into which stereotype-based discrimination often enters. Such acts of discrimination are simultaneously a reflection of individuals’ failed attempts to become the ideal subjects of hegemonic ideologies and a mechanism through which these ideologies keep individuals in line by imposing social sanctions on those who fail or refuse to fall in line.

Being able to identify the racialized nature of such discrimination reveals the power of the stereotype doctrine. Specifically, the stereotype doctrine provides a remedy for discrimination against those who do not conform to these identitarian mythologies.

This Article has suggested that same-race discrimination is often a form of intraracial racialization, i.e. a way in which racial expectations are enforced on members of a racial group by their fellow members. By utilizing the stereotype doctrine, these practices can be recognized as wrongful race discrimination under Title VII.

Courts’ tendency to de-racialize Whiteness and view it as invisible has led to a limited doctrine of same-race discrimination between Whites, one which recognizes the possibility of such discrimination being “because of race” only when racial minorities are involved. The stereotype doctrine has the potential to racialize Whiteness by exposing the racial work necessary to maintain its content, meaning, and borders and, in doing so, also lead to its subversion.