Coercive Assimilationism: The Perils of Muslim Women’s Identity Performance in the Workplace

Sahar F. Aziz October, 2014

Should employees have the legal right to “be themselves” at work? Most Americans would answer in the negative because work is a privilege, not an entitlement. But what if being oneself entails behaviors, mannerisms, and values integrally linked to the employee’s gender, race, or religion? And what if the basis for the employer’s workplace rules and professionalism standards rely on negative racial, ethnic or gender stereotypes that disparately impact some employees over others? Currently, Title VII fails to take into account such forms of second-generation discrimination, thereby limiting statutory protections to phenotypical or morphological bases. Drawing on social psychology and antidiscrimination literature, this Article argues that in order for courts to keep up with discrimination they should expansively interpret Title VII to address identity-based discrimination rooted in negative implicit stereotypes of low status groups. In doing so, the Article brings to the forefront Muslim women’s identity performance at the intersection of religion, race, gender, and ethnicity—a topic marginalized in the performativity literature. ¹ I argue that Muslim female employees at the intersection of conflicting stereotypes and contradictory identity performance pressures associated with gender, race, and religion are caught in a triple bind that leaves them worse off irrespective of their efforts to accommodate or reject coercive assimilationism at work. ²

Introduction

As soon as Sarah Maher walked into the room, their body language became noticeably tense. She was not what they expected to see when they spoke to her on the phone. Dressed in an ornate long-sleeve top extending to her knees with hand stitched colorful Palestinian embroidery, loose black plants, and a matching headscarf, Sarah was identifiably Muslim. Her dark olive complexion, long slender nose, and high cheek bones revealed her Arab roots. And yet, she had no foreign accent, she wore makeup, and exhibited a strength of personality and selfconfidence that contradicted her conservative dress. Within a matter of minutes, she had lost her audience. Despite having been raised in the United States, her headscarf quickly marked her as an outsider. Her Arab features betrayed her seemingly Anglo sounding name. And her assertive personality came across as pushy with a tinge of self-entitlement. Sarah had failed to assimilate her religious, ethnic, and gender identity in accordance with the predominant social groups’ norms. Although the company boasted women, Muslims, and racial minorities among their employees, Sarah was not the “right kind” of minority employee. Unlike the other Muslim and minority employees, Sarah openly expressed her identity through her dress rather than attempt to cover it. Her strong personality and unabashed self-confidence was off putting for the women and men in the room whose expectations of professional women included deference, discreteness, and humility. Although the interviewers included a woman, a Muslim, and white Christian male, they each followed and expected others to follow assimilationist demands, as had they. In the end, they agreed that though Sarah Maher was well qualified on paper, she just was not the right fit for the company’s culture.

Unlawful discrimination continues to ail American workplaces.³ Despite the prevailing narrative that America is now “post-racial” after the election of its first African American president, equal opportunity still eludes many Americans.⁴ For Americans who belong to racial, ethnic, or religious groups stigmatized as the “other,” their opportunities to access quality education, political office, and equal opportunity in the workplace are stunted.⁵

When Title VII of the 1964 Civil Rights Act was passed, victims often experienced explicit biases against their protected group.⁶ The law’s immediate effect was to ban overt prejudice causing disparate intergroup discrimination on the basis of race, ethnicity, color, gender, or religion.⁷ But, as the data show, the absence of discriminatory policies on paper does not always translate into a discrimination-free workplace in practice.⁸ Rather, it pushes bias into more covert manifestations wherein facially neutral factors become proxies for unlawful discrimination.⁹ Title VII, therefore, has been relatively successful in rooting out explicit bias in employment while leaving implicit bias untouched.¹⁰

More specifically, Title VII is ill-equipped to prevent two increasingly prevalent forms of discrimination: (1) implicit bias arising from negative stereotypes of protected classes; and (2) disparate treatment of subgroups of protected classes who do not conform to coercive assimilationist pressures.¹¹ Taking this into account, courts should not exclude intra-group comparative evidence or singularly focus on inter-group comparative evidence in ascertaining whether unlawful discrimination was the motivating factor for the adverse employment action.¹²

Of course, if the different treatment among the subgroups is based on performance and skills directly related to the work at issue, then no liability should attach. But that is not always the case. Disparate treatment of members of the same protected class may arise from negative racial, ethnic, gender, or religious stereotypes that privileges those able and willing to perform their identity to appease assimilationist demands of the majority group.¹³ Such pressures to perform one’s identity in accordance with the high status groups’ norms and values produce what I call “coercive assmiliationism.” The effect of failing to adhere to coercive assimilationism is intergroup discrimination based on intragroup differences rooted in implicit or explicit negative stereotyping.¹⁴

Female employees who fall under multiple protected classes face an intersection of identity performance pressures as women, racial or ethnic minorities, and religious minorities.¹⁵ The dominant group’s expectations of how women or members of minority groups should behave, dress, and communicate in order to be “professional” are often contradictory due to conflicting stereotypes.¹⁶ A Black woman, for example, who is assertive, ambitious, and exhibits leadership qualities associated as masculine characteristics risks being stigmatized as aggressive, insubordinate, and threatening because of negative stereotypes of Blacks.¹⁷ Simultaneously, her behavior contradicts gender conformity norms that women should be deferential, gentle, soft spoken, and pleasant.¹⁸ And if she is a Muslim, then her behavior triggers stereotypes of Muslims as terrorists, disloyal, foreign, and suspect.¹⁹ Such stigmatization may occur notwithstanding that these very traits are necessary for effective performance of the job and would be viewed as strengths if exhibited by male white employees.

For workplace anti-discrimination laws to eradicate these multiple binds that disparately impact women of color,²⁰ this Article argues that Title VII jurisprudence should take into account intergroup discrimination based on intragroup identity performance to assure all employees within protected classes, not just a subset, are covered by workplace antidiscrimination law.²¹ I draw on Kenji Yoshino’s work on identity performance in the workplace that theorizes prejudice coping mechanisms by members of low valued groups.²² Yoshino identifies three ways minorities attempt to avoid the costs of their devalued group membership and attain the benefits of the socially dominant group: converting, passing, and covering.²³

I also incorporate Devon Carbado and Mitu Gulati’s scholarship that examines the great lengths to which minorities go to efface their Black, Latina, Asian or other low value traits and behaviors in order to reassure colleagues and supervisors that they are not dangerous, loud, immoral, lazy, or possess few interests in common with the majority-race crowd.²⁴ The minority female employee thus does double duty—she must complete her work as well as expend significant energy communicating to her coworkers that she is just like them.

Coercive assimilationism exacts a disproportionately high toll on members of non-dominant social groups²⁵ as facially neutral rules mask a bias towards the needs, interests, and inherited circumstances of the dominant group.²⁶ Minority employees find themselves expected to behave, talk, and dress in ways that emulate the dominant group, or at the very least do not threaten their power to define professional norms.²⁷ By the same token, subjective aesthetic values determine who and what is valued and entitled to control the workplace, and by extension the distribution of wealth.²⁸ Racial or ethnic minorities who engage in cultural displays and exhibit behaviors disfavored or out of sync with the dominant white, Protestant, heterosexual male culture find themselves deemed unprofessional or incompetent, resulting in their exclusion or marginalization in the workplace.²⁹ While members of the dominant group are able to live and work with minimal pressure to compromise their cultural values and norms, those deemed outsiders are coerced to relinquish or at the very least hide their foreign languages, clothing, cultural practices, hairstyles, and associations with other outsiders to obtain gainful employment.³⁰

The effect is what Laura Roberts and Daryl Roberts call “cultural profiling” where people who fail to show that they fit into a company’s culture are not invited to join or are purged if they later exhibit nonassimilationist identities.³¹ Behaviors or traits that remind the employer of the employee’s low social status and potential to thwart cultural hegemony in the workplace result in adverse employment actions.³² In contrast, members of minority groups who perform their identities in accordance with coercive assimilationist demands receive better treatment than members in the same group who fail to do so.³³ As a result, members of low status groups must exert more energy than members of high status groups to assuage their employers that they are not a threat to the organization’s culture.³⁴ The heightened sense of self-consciousness regarding all aspects of their cultural and status displays imposes psychological stress and health costs on minority employees that go unnoticed by employers and courts.³⁵

While the anti-discrimination literature is replete with articles on African Americans, African American women, and LGBT communities,³⁶ little is written on Muslim women of color. Accordingly, this Article makes a scholarly intervention by examining the complexities of Muslim women’s experiences through the lens of identity performance theory. Part I lays out the theoretical underpinnings of anti-discrimination law and social psychology including the scholarly debates between assimilationism and multiculturalism, intersectionality theory, social identity formation, stereotyping theory, and essentialism. Although rarely discussed in court opinions, social psychology theories illuminate the gravity of the harms caused by assimilationist pressures on low status groups to perform their identities to the liking of high status groups.³⁷

Part II applies social psychology and anti-discrimination theories to the case of Muslim women of color in the workplace, an under-researched area in legal scholarship.³⁸ In doing so, I examine the identity performance challenges and contradictions faced by Muslim women of color as “intersectionals” facing stereotypes against (1) Muslims as terrorists, violent, and disloyal;³⁹ (2) Muslim women as meek, oppressed, and lacking individual agency;⁴⁰ (3) women as sexualized,⁴¹ terminally second best to men, and uncommitted to their careers;⁴² (4) immigrants as forever foreign and undeserving of equal treatment;⁴³ and (5) ethnic minorities from the Middle East and South Asia as barbaric, misogynist, and anti-American.⁴⁴ I conclude that Muslim women of color are at risk of falling between the cracks of Title VII jurisprudence due to courts’ unwillingness to recognize the harms and the triple binds caused by coercive assimilationist pressures to conform one’s identity to comport to high status group norms.

Part III highlights the triple bind in which many Muslim women of color find themselves wherein they cannot simultaneously adhere to the various identity demands. Facing the brunt of negative stereotypes of Muslims as terrorists, gender stereotypes of Muslim women as weak and oppressed, and stereotypes specific to her race or ethnicity, a Muslim female employee is caught in a triple bind.⁴⁵ If she assertively expresses her independent views, demonstrates ambition for promotion, and dresses in Western attire; her coworkers will admire her for defying the stereotype of the meek, oppressed Muslim woman. At the same time that she is admired for defying the purported yokes of Arab cultural oppression, she is penalized for violating American gender norms that deem ambition and assertiveness a liability for women.⁴⁶ She may also trigger fears of Muslims as disloyal terrorists in waiting. But any attempts to exercise deference to allay suspicions of her loyalty reinforce stereotypes of her submissiveness and inability to lead.⁴⁷ Thus, she pays a high price regardless how she chooses to perform her identity.

Part IV offers a new doctrinal proposal that addresses intergroup discrimination based on intragroup differences in identity performance. Building off of Melissa Hart and Paul Secunda’s work on social framework evidence in employment discrimination,⁴⁸ I argue that courts should incorporate social psychology theories to recognize the invidious impact of negative stereotypes in employers’ purportedly objective employment decisions. Following the sex-stereotyping jurisprudence established in Price Waterhouse Cooper v. Hopkins ,⁴⁹ judges should take seriously plaintiffs’ circumstantial evidence that stereotypes against race, religion, and gender motivated the employer’s action. While Title VII jurisprudence acknowledges the harms caused by explicit stereotyping in intergroup dynamics, it has yet to meaningfully incorporate implicit stereotyping that discriminates based on intragroup differences.⁵⁰ As such, this Article calls on courts to recognize the interaction between identity performance, assimilationist demands, negative stereotyping and discrimination at the intersection of race, religion, and gender.

I. Theoretical Underpinningsof Antidiscrimination

Law and Policy

Each society experiences social stratification based on the norms, values, and culture of the socially dominant group.⁵¹ Currently in the United States, the socially dominant group is white, Protestant Christian, heterosexual, and male.⁵² The privileges of membership in the dominant social group are many. Institutional rules put in place by its members allocate resources that secure their status at the top of the social hierarchy.⁵³ The socially dominant group defines the values, behaviors, and other characteristics that constitute what is “normal,” “competent,” “good,” and “professional.”⁵⁴ Others must then assimilate in order to have the opportunity to attain economic, social, and political privileges. Those unable or unwilling to do so pay a high price ranging from under or unemployment, inaccessibility to education, poor quality housing, intergenerational poverty, and targeted enforcement of criminal laws.⁵⁵ Coercive assimilationism, therefore, imposes dignitary and psychological harms that warrant legal redress.

As the US economy becomes increasingly corporatized, the predominantly white Christian male managers who manage them set dress and behavioral standards that affect millions of American workers.⁵⁶ Seemingly neutral practices ostensibly aimed at increasing productivity effectively single out members of historically disadvantaged, marginalized, and underrepresented groups.⁵⁷ For example, workplace rules that bar Black women from wearing corn rows in their hair, Black men from having dreadlocks, or Latinos from speaking Spanish during work breaks merely reinforce the dominant culture and exclude non-conformists.⁵⁸ When these practices are challenged in court, judges often defer to corporations’ subjective definitions of professionalism, even if clearly disadvantageous to racial minorities.⁵⁹ The courts deem cultural practices as unprotected voluntary choices distinct from protected immutable morphological characteristics.⁶⁰

Although organizational culture is framed under capitalist, profitmaximizing objectives for maintaining a productive and cohesive workplace, the underlying values and norms that define the workplace culture may stem from the socially dominant group’s norms and preferences as opposed to objective criteria tied to productivity.⁶¹ Indeed, it is questionable whether assimilation is in fact necessary to create a productive and cohesive workplace. In a culturally diverse American society, workplace rules based on cultural assimilationsim may instead compromise the very cohesion and productivity they purport to promote by privileging some groups over others.⁶² Indeed, assimilationist policies send a message to minority employees that their cultural displays, values, and behaviors are inferior, resulting in stigmatization.⁶³ And as long as the psychological cost of such stigmatization is imposed on low status out-groups, employers are unlikely to voluntarily change their work cultures. Thus, Title VII becomes all the more important as a mechanism for countering the harmful effects of coercive assimilationist practices, and instead, supporting a multiculturalist model.⁶⁴

A. Coercive Assimilationism and Multiculturalism

Multiculturalists argue that colorblind policies are merely rationalizations for ignoring illegitimate racial hierarchies and racial bias.⁶⁵ Richard Delgado and Kevin Johnson, among other legal scholars, challenge “blindness to differences” policies and call for a multicultural citizenship model.⁶⁶ They argue that a nuanced understanding of citizenship acknowledges, respects, and even nourishes group-based distinctiveness based on a belief that these cultures are intrinsically good and valuable.⁶⁷ Accordingly, incorporating identity performance into anti-discrimination jurisprudence is an integral part of the state’s commitment to diversity.⁶⁸

While multiculturalism may alleviate the harms imposed by coercive assimiliationism, it is certainly not flawless. Inherent in protecting a particular culture and its adherents is defining the values, practices, and norms that distinguish that culture. In turn, mainstream society may take certain definitions as truth notwithstanding diversity within a culture.⁶⁹ As aptly noted by Richard Ford, should descriptions of identity become codified into law, then normative injunctions about how group members ought to act may strip individuals of the autonomy to shape their own identity within a particular social group.⁷⁰ Paradoxically, legally protecting cultural practices and behaviors of protected classes may in effect deny agency to members of low status groups. Courts’ rulings would thus legitimize one version of a group identity above all others while reinforcing the notion that groups possesses a defined essence.⁷¹

These risks have a particularly acute effect on women. Privileged male members within the cultural group are often the gatekeepers for defining the group’s culture.⁷² Their status grants them greater authority to impose patriarchal visions of the community, thereby subordinating female and other underprivileged members.⁷³ Intragroup hierarchies become reinforced to alleviate intergroup hierarchies.⁷⁴ As a result, feminist and progressive positions within the community that challenge existing power structures find themselves marginalized and silenced.⁷⁵ Moreover, the implicit deference to cultural autonomy within a multiculturalism model relieves mainstream society of its responsibility for subordinating certain members of minority groups.⁷⁶

In the end, the subordinated members of low status groups, often women, become the biggest losers in a multiculturalist model unless institutions equip them to dismantle the power hierarchies within their ethnic communities and broader mainstream society that subordinates them in the first place.⁷⁷

B. Social Identity Formation and Stigmatization

Debates on multiculturalism versus assimilationism implicate individual social identity formation because every individual has a social identity that she constructs in relation to others.⁷⁸ As members of particular social groups, we see ourselves as sharing specific attributes and concerns with those who share our social identity. Social identity is not static, but exists within a continuous process of negotiation and renegotiation such that social identification is a dynamic process.⁷⁹ The attributes, behaviors, and meanings of an identity group are socially defined both by society at large and the experiences of the in-group with whom a person identifies.⁸⁰ The meanings associated with a particular social category, therefore, may change as well as the importance attached to an identity by a particular individual.⁸¹

The importance of a particular group to an individual’s identity is a significant determinant in how an individual perceives and copes with a discriminatory event.⁸² Social identity theory posits that targets of prejudice are not viewed simply as individuals but rather as representatives of a group of like people possessing innate, biological traits.⁸³ Stereotypes of particular identity groups are based on assumptions held by outsiders of which the consequences are exclusionary and detrimental to the target group.⁸⁴ Stigmatized individuals possess some attribute or characteristic that conveys a social identity that is devalued in a particular setting.⁸⁵ Determinations regarding which cultural values are devalued or which groups are stigmatized are subjective rather than objective realities.⁸⁶

In the case of African Americans, for example, studies show that they encounter a set of circumstances and experiences that represent their differential treatment from European Americans.⁸⁷ Prejudice is manifested in various ways, including, but not limited, to verbal rejection, avoidance, discrimination, and physical attack.⁸⁸ In the workplace, members of stigmatized groups experience limitations in access to opportunities and resources as a result of what social psychologists call insidious trauma: chronic events linked to the social structure and institutionalized and ubiquitous forms of oppression experienced in daily life.⁸⁹

The chronic experiences of prejudice produce greater general stress due in part to the cognitive appraisals of threat by the victim towards the antagonist and normative developmental events specifically linked to membership in an oppressed group.⁹⁰ Some targets of negative stereotyping who recognize others’ negative views of their group membership internalize the negative evaluations and develop lower self-esteem.⁹¹ Members of oppressed groups suffer tangible costs in terms of direct effects on life outcomes such as “rates and experiences of unemployment and underemployment, income level and social status, infant mortality, physical health and injury, emotional distress, and psychopathology.”⁹² This is consistent with studies finding that the more women or African Americans perceive themselves as victims of gender or racial discrimination; the more they exhibit adverse psychiatric and physical health symptoms including higher levels of depression.⁹³ Prejudices from the dominant out-group that view a woman as the “other” trigger feelings of helplessness, resentfulness, and anger.⁹⁴

As a result, people identified as members of a stigmatized group, including Muslim women of color, find themselves facing a social world that is in part hostile. Various forms of subtle and blatant prejudice infiltrates the lives of low status group members, making prejudice an ongoing lived experience within everyday life.⁹⁵ In response, stigmatized individuals adopt different strategies to cope with perceived discrimination depending on the magnitude of the threat and the individual’s level of identification with a disadvantaged group.⁹⁶ The high identifiers with the disadvantaged group employ group-based strategies while low identifiers employ individual mobility strategies.⁹⁷

Persons who self-categorize at the individual level, as opposed to the group level, respond to negative stereotypes about their social identity group by attempting to set themselves apart from fellow in-group members. This is known as identity negation.⁹⁸ Identity negation can take three forms: (1) eliminating an identity altogether, known as “conversion” in identity performance theory; (2) identity denial known as “passing” in identity performance theory; and (3) lowered identification known as “covering” in identity performance theory.⁹⁹ Ultimately, identity performance strategies are coping mechanisms in response to negative stereotypes.

C. Essentialism and Stereotyping Theory

Negative stereotyping of low status groups perpetuates prejudice and discriminatory acts.¹⁰⁰ Stereotyping assumes individuals within a particular low status group possess the same qualities and characteristics by virtue of their common social group membership.¹⁰¹ Negative stereotypes arise from negative associations of certain traits that reinforce notions that individuals and groups possessing such traits are intellectually, morally, and culturally inferior to members of the dominant group.¹⁰² The misdeeds of one group member are attributed to other members, denying low status groups the individual agency afforded to the high status group. Yet, when a member of a low status group achieves success, she is often treated as an exception to the stereotype rather than evidence of the fallacy of the stereotype.¹⁰³

Each low status group is burdened with different negative stereotypes depending on a nation’s historical, political, and social circumstances. African Americans, for example, are often stereotyped as undisciplined, insubordinate, and unwilling to assimilate into America’s purported “melting pot” society.¹⁰⁴ Some stereotypes are gendered. Black males, for example, are presumed irresponsible, violent, sexual predators, drug dealers, and prone to criminality.¹⁰⁵ Black women are stereotyped as sexually insatiable, promiscuous, immoral, aggressive, and tough.¹⁰⁶ When a Black woman is viewed as independent, tough, assertive, or a matriarch, these are negative attributes that place her outside of socially acceptable womanhood and labels her a “bad employee” in stark contrast to a white male who is praised for possessing similar traits.¹⁰⁷

In the case of Muslims, religious essentialism falsely assumes a monolithic “Muslim Experience,” or “Muslim Women Experience” that imposes immutable characteristics upon all Muslims such that the essentialist is relieved of the effort to learn about the lives of individuals with all of the discomforts that it entails.¹⁰⁸ Like Blacks, stereotypes against Muslims are gendered wherein Muslim males are stereotyped as terrorists, disloyal, suspect, barbaric, and violent.¹⁰⁹ Muslim women are often stereotyped as meek, oppressed by their male relatives, discouraged by their families from pursuing their professional aspirations, pressured to be housewives, and granted less educational opportunities than their male siblings.¹¹⁰ After the September 11th terrorist attacks, Muslim women found they were doubly burdened with gendered religious stereotypes as well as “raced” religious stereotypes where their Muslim headscarves equated them with terrorists and violence against Americans.¹¹¹ As a result, Muslims across the nation in schools, on the streets, on buses and metros, and at work found themselves the objects of intensified suspicion and surveillance.¹¹²

The psychological and physical health costs of stereotyping are significant. Stigmatization arising from negative stereotypes stifles motivation and energy and diverts attention away from performance towards affective and behavioral regulation.¹¹³ This translates into limited access to resources and produces lower job performance and lower income.¹¹⁴ To cope, some members of oppressed groups minimize their investment and personal identification with specific domains of performance in which they are stereotyped as incompetent.¹¹⁵ For example, women and African Americans are stereotyped as unable to succeed in math and engineering thereby discouraging many members of these low status groups from pursuing certain careers.¹¹⁶ Moreover, when women and racial minorities have opportunities in workplaces with small representations of their in-group, they may opt not to pursue them due to fears they will unlikely be accepted as equals.¹¹⁷ By avoiding potential rejection, these women seek to spare themselves the interpersonal stress associated with being a minority.¹¹⁸ They end up settling for an objectively less desirable job with less pay, prestige, and growth opportunities.¹¹⁹

Despite temptations to attribute negative stereotyping to merely cognitive errors by well-intentioned actors, American history provides multiple examples of how stereotypes were used as a control device to justify oppression, assuage whites’ guilt for slavery, and perpetuate economic privileges along racial and gender lines.¹²⁰ Though the most egregious manifestations of such stereotypes are now condemned, their pernicious influence remains, albeit in subtle forms. For example, Samuel Huntington and Lino Graglia argue that disparities in educational achievement, socioeconomic status, and professional success are attributable to particular cultures’ failure to value education and hard work.¹²¹ Similarly, others argue that women are not senior executives in corporations and law firms because they are unwilling to make a commitment to their careers or simply do not have the willpower and intellect to handle the stress.¹²² In the end, stereotypes allow the public to shift the blame on targets of disparate outcomes rather than address the systemic societal inequities perpetuated by the stereotypes.

Although all humans make use of stereotyping, social psychologists have found that stereotyping is commonly practiced by people who perceive human groups as rigid, undifferentiated, and dichotomous.¹²³ To these essentialists, human attributes are biologically based rather than socially constructed, and thus stereotypes are justified as a reflection of innate and inherent factors possessed by a particular group.¹²⁴ Essentialists impose cultural group responsibility such that a group’s culture causes inferior outcomes for a low status group.¹²⁵

Studies by social psychologists Zoe Richards and Miles Hewstone show that the more familiar a person is with a particular group, the more variable the group is perceived.¹²⁶ However, when some perceivers are faced with disconfirming information that challenges their stereotype, they tend to maintain the stereotype by grouping together disconfirming members into a subtype and treating them as an exception unrepresentative of the group.¹²⁷ In identity performance theory, this phenomenon is known as racial exceptionalism wherein the majority points to a select number of minorities they have hired to disprove allegations of unlawful bias.¹²⁸ Often times those individuals possess the phenotype of their race or ethnicity that may be the basis for forming the stereotype but perform their identities in accordance with the demands of the majority group. Thus, calls for increased interaction between different identity groups should not be limited to intergroup interactions but also exposure to the various intragroup differences that dispel homogenizing stereotypes.¹²⁹

D. Intersectionality Theory

Any discussion of women of color and discrimination law entails examining how belonging to multiple low status groups further complicates intergroup dynamics. The intersection of identities confounds the essentialist discriminator while also leading to uniquely tailored stereotypes of Black women, Latina women, or Muslim women, among others.

Intersectionality theory interrogates the interplay between gender, race, religion, and other categories of differences in individual lives, social practices, institutional arrangements, and cultural ideologies.¹³⁰ Rather than examine prejudice and discrimination through binaries of solely race, gender, or religion, intersectionality theorizes identity in a more complex manner.¹³¹ It posits that legal theory and social policy that focuses on discrimination against individuals on the basis of protected traits as separate and distinct from each other, rather than interactive with each other, fails to uncover the gender components of racism, race components of sexism, and the gender and race components of religious bias.¹³² As such, intersectionality affects outcomes of power, access to resources, and distribution of wealth.¹³³ Social and material realities of women of color’s lives are affected by how their race, class, and gender identities interact to produce and transform power relations to the disadvantage of low status groups.¹³⁴

Focusing on Black women’s experiences,¹³⁵ Kimberle´ Crenshaw and Angela Harris argue that the distinct history of Black women and the negative stereotypes associated with them dictates a tailored analysis of discrimination that expounds on how their interactive low status identities impact access to equal opportunity in the workplace.¹³⁶ Absent recognition of the interaction of multiple identities, Black women are at risk of being denied the same protections available to other individuals protected by antidiscrimination law.¹³⁷ Indeed, courts consistently fail to comprehend intersectionality. They incorrectly assume that racism and sexism operate independently such that a Black woman must show either that she was discriminated against because she was a woman or because she was Black rather than because she was a Black woman.¹³⁸ An employer, therefore, may defeat the Black female plaintiff’s prima facie case by pointing to other women or other Black males who were not subjected to the alleged disparate treatment.¹³⁹

I argue the same analysis applies to Muslim women of color with the addition that they face a triple bind. They face stereotypes unique to Muslim women that depict them as oppressed, subjugated, unable to lead, and in need of saving by American notions of gender equality. Muslim women also find themselves discriminated against as women expected to be feminine, deferential to male authority, and attractive at work.¹⁴⁰ And they are stigmatized as suspect Muslims with covert terrorist agendas.¹⁴¹ Their intersectional identities destabilize notions of a universal woman, Muslim, Arab, or other low status group by highlighting that multiple sites of oppression intersect to the terms and relations of power in society, including in the workplace.¹⁴²

The next section incorporates the fore-mentioned legal and social psychology theories into an examination of how Muslim women of color, an under-researched group, have performed their multiple identities in a workplace infected by coercive assimiliationism. I proffer a nuanced explication of the contradictory identity performance pressures that leave many of them unprotected by current Title VII jurisprudence—regardless whether they reject or succumb to coercive assimilationism. For these reasons, Part IV offers doctrinal recommendations calling for more expansive interpretations of Title VII to address these forms of latent discrimination.

II. Performing Identity at Work: The Case of

Muslim Women of Color

The antidiscrimination literature is replete with articles on African Americans, African American women, and LGBT communities,¹⁴³ but little is written on Muslim women of color. Accordingly, this Section expands the literature through an examination of the complexities of Muslim women’s experiences through the lens of identity performance theory. Section A describes the unique ways in which Muslim women adopt the individual identity performance strategies of converting, passing, and covering. Section B turns to group level strategies wherein Muslim women increase their identification with Muslim communities, also known as identity enhancement or social competition group strategy, to maintain a positive social identity and self-esteem in the face of prejudice. By expounding on individual and group level strategies, this Section offers a nuanced perspective on how Muslim women’s identity performance pressures are both similar and different than those faced by other women of color. As a result, Muslim women adopt coping strategies unique to their cultural, religious, and racial circumstances all of which should be considered by courts presiding over employment cases involving intergroup discrimination against Muslim women based on intragroup difference.

A. Muslim Women’s Identity Performance Strategies

Social psychology scholars Branscombe and Ellemers find that when presented with opportunities to gain membership in higher status group, most people will attempt to negate their identities associated with the devalued group and pursue individual mobility strategies.¹⁴⁴ Such findings corroborate racial hierarchy theory in critical race studies wherein members of stigmatized races may discriminate against other stigmatized races as a means of increasing their association with the dominant white race.¹⁴⁵

Along those lines, identity negation entails a willingness to make significant changes to one’s self-definition in order to decrease or eliminate the negative consequences of an existing identification.¹⁴⁶ Some individuals eliminate an identity by labeling themselves as an “ex-member” of the group that has been abandoned. Others go so far as derogating other ingroup members as inferior to distance themselves from the stigmatized group.¹⁴⁷ Similarly, identity denial occurs when an individual denies her identity and attempts to pass as a member of the majority. In the workplace, successful individual mobility strategies can lead to increased opportunities for higher quality work, business development opportunities, good evaluations, promotions, and higher pay.¹⁴⁸ Towards those ends, three individual mobility strategies are most often employed: converting, passing, and covering.

“Converting” entails changing one’s underlying identity altogether. A Muslim woman converts by converting out of Islam into Christianity, the religion of the dominant social group. She legally changes her birth name from a Muslim, Arab, or non-white name to an Anglo sounding name. Her wardrobe and lifestyle eliminate all traces of her Muslim or non-white identity. She marries a Christian, white male with whom she socializes in his dominant social group. Their children are raised Christians with Anglo Saxon names and socialize with other white, Christian children. In the end, the converted Muslim woman completely disassociates from her Muslim and ethnic identity as she converts into her Christian, white identity. In her mind and the minds of others, she is a member of the socially dominant group.

“Passing” occurs when the underlying identity is retained but masked.¹⁴⁹ A Muslim woman who passes hides her Muslim identity by adopting an Anglo nickname, such as Katy instead of Khadija, but does not legally change her birth name.¹⁵⁰ Although she may associate with some Muslims privately, she hides these associations from her white, Christian co-workers. Instead, she strategically socializes with dominant group members to avoid the stigmatization of being associated with her low status group.¹⁵¹ She partakes in traditionally American social activities such as dancing, drinking, and having American boyfriends—all of which are at odds with the Islam practiced by her in-group.¹⁵² Her western American wardrobe does not disclose her ethnic roots or religious identity, and her marriage to a fair skinned man who also passes as white further obscures her racial and ethnic identity.¹⁵³ When her underlying identity is discovered, she is often told “I had no idea you were a Muslim or an Arab” to which she may respond dismissively as an accident of birth and irrelevant to her self-identification.

The option to convert or pass is available only to persons whose skin color and phenotype “look white” enough for the dominant social group to believe they are in fact members of the high status group.¹⁵⁴ Otherwise, attempts to convert or pass leave the person worse off as she is rejected both by her low status group and the high status group.¹⁵⁵ Due to the non- European geographic origins of most Muslim immigrants in America, converting and passing is available to very few.¹⁵⁶ Thus, covering is adopted by Muslims whose phenotype and physical characteristics are perceived as typical of a particular low status group. It is the most common form of identity performance employed to avoid stigmatization.¹⁵⁷

Covering entails adopting appearances, associations, speech, and behaviors that allay the dominant social group’s discomfort with or fear of the low status group. The minority engages in racial comforting by allaying the guilt caused by the dominant group’s bias against her low status group.¹⁵⁸ She also engages in racial distancing from her low status in-group so that she can be viewed as the exception to negative stereotypes, thereby avoiding stigmatization.¹⁵⁹ Ultimately, the individual does not want to be perceived as “too Black,” “too Muslim,” “too feminist,” or “too Arab” depending on the stigmatized groups to which she belongs. She seeks to assuage the dominant group that she will not come to work one day with a headscarf on, start praying at her desk, or proclaim “Allah Akbar” when she receives good news. Whether or not she wants to engage in such acts is irrelevant because her individuality is subsumed in the negative stereotypes presumed about her low status group.

In covering her identity, a Muslim woman retains and discloses her underlying identity but performs it in such a way that makes it more palatable for the socially dominant group to not feel threatened by her presence. She does not wear a headscarf, she does not speak Arabic or another foreign language in front of her colleagues, she speaks in the local vernacular accent, straightens her hair, and wears clothes viewed as Western and liberal as opposed to overly conservative and Islamic.¹⁶⁰ She chooses names for her children that are both Arabic and English such as Sara, Adam, Zack, Miriam or Sophia so that her children can also cover their Muslim and ethnic identities.¹⁶¹ She makes an effort to inform her coworkers about her active participation in traditionally American activities such as the Parent Teacher Association, volunteering at the Salvation Army, leading her daughter’s Girls Scouts troop, donating to the United Way, and other typically American extracurricular activities. Even though she may be a practicing Muslim, she does not publicize her religiosity or seek religious accommodation at work. Nor does she inform her coworkers of her trips back to her country of origin as this may be perceived as evidence of divided national loyalties.¹⁶²

A Muslim woman who covers her identity also goes out of her way to express her patriotism and does not criticize American foreign policy.¹⁶³ In attempting to racially comfort her colleagues, the Muslim woman laughs with her colleagues, rather than complains about, bigoted jokes about Muslims or her ethnic group, she does not challenge stereotypes that Muslims are more prone to terrorism or Muslim women are oppressed.¹⁶⁴ Indeed, she may go so far as to engage in self-hating humor about her backward country of origin and fanatical religion to validate mainstream stereotypes.¹⁶⁵ She becomes a “cultural Muslim” rather than a “real” (bad) Muslim whose embrace and practice of her Islamic and ethnic identity are viewed as a threat by her coworkers.¹⁶⁶ The identity covering Muslim woman becomes the person her employer points to counter allegations of anti-Muslim, anti-Arab, or even anti-women bias and tout the employer’s workplace diversity. As a result, her willingness to accommodate coercive assimilationist pressures makes her more vulnerable to being a token.¹⁶⁷

B. Group Enhancement Strategies: Refusing to Perform

Coercive Assimilationism

Not all members of stigmatized groups respond to prejudice through identity negation or dissociation.¹⁶⁸ Individuals highly identified with their devalued group defend their in-group and derogate the out-group.¹⁶⁹ Indeed, some high identifiers respond with anger to the negative perceptions of their group.¹⁷⁰ They view discrimination against their in-group by the dominant group as a “badge of distinction rather than a mark of shame.”¹⁷¹ To the high identifiers, the poor outcomes of the in-group in terms of employment, education, and other socio-economic factors are a product of discrimination that illegitimately and collectively devalue the entire group.¹⁷² As a result, they are likely to reject dominant group standards, engage in separatism, and place greater value on how they differ from the dominant group.¹⁷³

Increased identification with a low status group, also known as identity enhancement or social competition group strategy, maintains a positive social identity and self-esteem in the face of prejudice.¹⁷⁴ As a consequence, many members of socially devalued groups derive great pride from their group membership as was the case with Black consciousness movements in the United States during the Jim Crow era and currently evinced in gay pride parades.¹⁷⁵ Similarly, many Muslims coalesce around their faith communities to cope with the distress from post-9/11 discriminatory experiences.¹⁷⁶ If a person believes that her group’s low status might be improved and that its low status was assigned illegitimately, then she is more willing to engage in collective efforts to improve the group’s position.¹⁷⁷

But group-based identity strategies carry significant risks. Highly identified group members are more susceptible than low identified members to discrimination by dominant groups who respond defensively and try to strike back at attempts to effectuate social change.¹⁷⁸ Refusal to adhere to the norms set by the dominant social group and negation of intergroup similarities can preclude the in-group member from access to valued outcomes such as jobs, access to good schools, and wealth.¹⁷⁹ For example, African Americans who are less acculturated into mainstream (white) society and more immersed in African culture are more likely to report experiences of prejudice.¹⁸⁰ The highly identified person is viewed by the higher status group as an extremist or troublemaker, which further blocks the possibility of acceptance into the higher status group.¹⁸¹

Meanwhile, identity enhancement strategies also entail benefits. Members of devalued groups who view their common identity with ingroup members improve their psychological well-being and fulfill their need to belong.¹⁸² One study of African American women found that, “those who feel excluded by their minority group and also perceive high discrimination from the majority exhibit significantly lower self-esteem than those who feel accepted” by the in-group or out-group.¹⁸³ Similarly, studies of Muslims find that higher religiosity is linked to positive methods of coping with post-9/11 discrimination.¹⁸⁴ Strong identification with one’s devalued group, therefore, can buffer against the negative psychological effects that accrue from feeling excluded from the dominant group.¹⁸⁵

Due to the heavy psychological costs and risks arising from identity negation strategies, some members of low status groups respond to prejudice through intensified group contact with their in-group.¹⁸⁶ Such contact enhances self-esteem and assists them in coping with stigma as a means of counteracting discrimination.¹⁸⁷ With the endorsement of others in their in-group, low status members affirm the value of their group membership rather than incorporate the negative views of the high status group.¹⁸⁸ They voluntarily segregate by seeking refuge in their communities where they can limit interactions with prejudiced high status groups.¹⁸⁹

Examples of group enhancement strategies include attending houses of worship where attendees are exclusively members of the in-group, limiting socialization outside of work with families within the in-group, enrolling their children in private schools wherein most of the students are members of the in-group, and living in neighborhoods where the ingroup is the majority.¹⁹⁰ Through these activities, individuals develop a commitment and sense of belonging to the group, a positive evaluation of the group, and an investment in the success of the group.¹⁹¹ In practicing what social psychologists call avoidance, the in-group members “move away from the oppressor” by developing separatist communities, migrating to less discriminatory locations, and reducing contacts with the majority.¹⁹² The in-group members develop a secure sense of self and a strong ethnic identity, which bolsters their self-esteem.¹⁹³ Although such strategies may preserve the in-groups’ collective self-esteem, it relieves the majority group of the responsibility for systemic biases as they justify the segregation and disparate outcomes as reflecting the minority group’s disinterest in racial integration and attendant opportunities.¹⁹⁴

Collective social change is another group identity enhancement strategy. Social change strategies aim to change beliefs and behaviors of the socially dominant group. They seek systemic changes to the social system to facilitate expression and recognition of their identity without stigmatization. Public education, public relations campaigns, large protests, and high impact litigation are among the various tactics used to challenge unfair institutional practices and rebuke negative stereotypes.¹⁹⁵

In the case of Muslim women, those facing discrimination who respond through group enhancement strategies tighten their grip over their Muslim identity.¹⁹⁶ They believe that Islamic rules and prescriptions can provide solutions to their everyday problems, including the psychological pressures arising from coercive assimilation and negative stereotypes about Islam, Muslim women, and their ethnic group.¹⁹⁷ By wearing a headscarf, dressing conservatively in accordance with Islamic principles, and naming their children identifiably Muslim names, they are engaging in both religious and culture enhancing lifestyles. However, they fear the animus against their Muslim headscarf or other visible cultural displays will be imputed onto their children through school bullying.¹⁹⁸ This may cause them to become more insular within their religious and ethnic communities in hopes of shielding their children from exposure to alcohol, drugs, and sex as well as anti-Muslim prejudice. Group enhancing Muslim women attend their local mosque more frequently, enroll their children in full time Islamic schools, look for work at Muslim owned businesses, and socialize only with other Muslims and persons of the same ethnicity.¹⁹⁹

Withdrawal is not available to all highly identified members of low status groups. Although some may seek out employment where their ingroup is predominant, others may have no other choice than to work in an environment that defines professionalism based on the dominant social groups’ norms. Moreover, some highly identified members of low status groups may “refuse to perform” their identities to accommodate coercive assimiliationist pressures at work. For them, retaining an authentic racial and religious identity manifested in their dress, names, associations, behavior, language, religious practices, and other cultural displays is vital to their self-esteem and quality of life.²⁰⁰ They view impositions of dominant social norms as a requirement for employment, promotion, and professional success as a form of prejudice, and thus contrary to antidiscrimination law and policy.

Some Muslim women invest in their Muslim identity by redefining it and taking control of it based on recognition that there is no escaping mainstream society’s negative stereotypes of Muslim women and Muslims.²⁰¹ Accordingly, they respond to devaluation of their Muslim and ethnic identities by wearing a headscarf to emphasize their Muslim identity.²⁰² The headscarf is their way of resisting assimilationist pressures while challenging the meaning of the headscarf as a symbol of oppression.²⁰³ Many of these headscarved women, as well as non-headscarved women, engage in social change by participating in public advocacy campaigns and lobbying efforts condemning the rise of anti-Muslim bias after the September 11th terrorist attacks.²⁰⁴

Not only do those “refusing to perform” affirmatively display their low status identity at work, but they assertively and publicly respond to prejudice. When faced with offensive behavior or stereotyping,²⁰⁵ they visibly communicate their displeasure to the perpetrator.²⁰⁶ They may use the opportunity to educate the perpetrator about the impropriety and harms caused by prejudice or file a formal complaint with the employer seeking reprimand of the perpetrator. Studies of Muslim women wearing headscarves report that many of them are asked questions about Islam, subjected to racial and religious slurs, or treated unfairly on account of their Muslim identity.²⁰⁷ This compels them to “represent the race”²⁰⁸ and dispel myths about their religion.²⁰⁹ Despite their efforts to educate or hold discriminators accountable, majority group members may minimize a Muslim woman’s objections by suggesting she is oversensitive, paranoid, or adversarial.²¹⁰ In turn, this causes retaliation by discrediting the employee as a trouble maker, which can lead to poor job evaluations alleging “attitude problems,” denials of promotion, job transfer, or termination.²¹¹

Although assertive responses to prejudice entail serious risk, failing to assertively respond also entails risks. The victim that passively absorbs the prejudice feels disempowered, self-disappointment, and guilt over her failure to defend herself.²¹² She may develop displaced aggressive or passiveaggressive defiance of behavioral norms that lead to physiological effects such as higher blood pressure and stress.²¹³ Indeed, studies of African American women find that those who quietly accepted discrimination were four times more likely to report hypertension than African American women who took action or talked to others. Similarly, African American women who did not report experiencing sexism or racism had a 2.6 times greater risk of high blood pressure than African Americans women who reported their experiences as targets of sexism and racism.²¹⁴

While the social science literature on Muslim women in the United States is still in its nascency, certain trends are clear. Like other women of color, Muslim women face stereotypes and identity performance pressures both within their religious and ethnic communities as well as mainstream society. Often times these pressures are contradictory such that regardless how a particular Muslim woman responds to coercive assimilationism— through individual mobility or group enhancement strategies—she is caught in a Catch 22.²¹⁵

III. The Triple Bind: Irreconcilable Intergroup, Intragroup, and Intersectional Identity

Performance Pressures

Much of the literature on performance identity revolves around the psychological, economic, and physical harms associated with accommodating or rejecting what I call “coercive assimilationism” in the workplace. However, scholarship on women of color in the workplace has yet to address the triple bind faced by Muslim women of color, thereby making them vulnerable to discrimination irrespective of how they perform their identity.²¹⁶

Women in the American workplace experience identity performance pressures to be deferential to (male) authority at work, conceal their ambition, avoid being assertive, be feminine but firm, accept lower pay than their male counterpart,²¹⁷ and be thin and attractive but not sexy.²¹⁸ Starting at a young age, American society reprimands girls for being too bossy when they lead while boys are praised as engaging.²¹⁹ Girls are also acculturated to fear being disliked, drawing negative attention, or overreaching.²²⁰ Thus, aggressive and hard-charging professional women violate unwritten rules about acceptable social behavior.²²¹

Meanwhile, when women employees possess a particular skill, ability or background, such qualities tend to carry less weight based on subjectively defined “merit” systems that hostile or unsympathetic superiors can use to justify discrimination.²²² For instance, women leaders who exhibit professional success are stigmatized as unlikeable,²²³ whereas “[e]ntrenched cultural ideas associate men with leadership qualities and women with nurturing qualities.”²²⁴ These same nurturing qualities cause some employers to refrain from hiring or promoting women based on doubts of women’s long term commitments to the job and their careers.²²⁵ Cumulatively, this leads to working women experiencing greater role conflict than men and higher stress levels.²²⁶

At the same time, parts of the American public view Muslims as highly suspect after the events of September 11th.²²⁷ Muslim employees, therefore, feel pressures to prove their patriotism and be on their best behavior lest they be investigated for ties to terrorism.²²⁸ Not only must a Muslim woman of color decide whether she is willing to succumb to coercive assimilationist demands, but she may not be able to do so in light of the contradictory demands on her identity. Being a “Good Muslim Woman” as defined by the dominant social group may avoid the adverse effects of negative stereotypes against Muslim women but at the same time trigger negative stereotypes of women, immigrants, and Muslims.²²⁹

These contradictory demands expose Muslim women of color to identity-based discrimination irrespective of their willingness or ability to accommodate coercive assimilationism in the workplace; making the incorporation of identity-based discrimination into Title VII jurisprudence all the more compelling.

A. Sandwiched Between Intragroup and Intergroup Identity

Performance Pressures

Meek, oppressed, and subjugated Muslim women are purportedly in need of saving by American feminism and liberalism.²³⁰ Lacking individual agency, Muslim women are viewed as charity cases adopted to appease American liberals’ ambivalence towards their government’s interventions in Muslim majority countries.²³¹ To avoid the harsh reality that America’s imperialistic endeavors make women (and men) worse off, American feminists and liberals justify military occupations in Iraq and Afghanistan as a means of liberating Muslim women from the yokes of oppressive patriarchal Islam. Hence much is vested in these negative stereotypes of Muslim women—politically and economically.²³²

After the September 11th attacks, the project to “save Muslim women” became more complicated.²³³ The headscarf and other forms of traditional Islamic dress came to signify a threat rather than a vulnerability.²³⁴ Muslim women were no longer perceived as benign, helpless creatures in dire need of rescue, but rather suspiciously associated with their terrorist husbands, sons, and fathers, and “[the label ‘terrorist’ . . . seeped corporeally and discursively onto the[ir] female Muslim bod[ies].”²³⁵ American feminists and liberals found themselves conflicted between Orientalist infantilization of Muslim women²³⁶ and the new clash of civilizations between the purported free Christian West and the violent Muslim East.

As Islamophobia gripped the American public,²³⁷ Muslim women donning headscarves found themselves physically attacked in public, evicted from courtrooms, and their children bullied.²³⁸ At work, women identifiably Muslim through dress or identity performance experienced hostile work environments as they were called terrorists, accused of disloyalty, and treated as a fifth column.²³⁹ Many could not obtain employment without removing their headscarves while others refrained from requesting religious accommodation from fear of retaliation.²⁴⁰

Facing the brunt of both negative stereotypes of Muslims as terrorists and gender stereotypes of Muslim women as weak and oppressed, Muslim female employees are caught in a triple bind. The more assertive Muslim women behave to cast off misperceptions of their passivity, the more threatening they are as Muslims to their coworkers. At the same time, Muslim women’s assertiveness may violate gender norms further exposing them to discrimination based on gender stereotyping. But any attempts to exercise deference to allay suspicions of their loyalty reinforce stereotypes of their submissiveness and inability to lead.²⁴¹ And further complicating their predicament, the women’s non-white status imputes upon them additional negative stereotypes specific to their ethnicity or race.²⁴²

Muslim women also experience pressures to perform their identities to accommodate intragroup gender norms. Many Muslims in the United States are first or second generation immigrants of non-European origin.²⁴³ Similar to other immigrant communities, they are developing new identities shaped by American culture, cultural practices from their countries of origin, and religious practices.²⁴⁴ As a consequence, Muslim communities are experiencing significant tensions arising from disagreements between immigrant and American born members and various ethnic groups with competing visions of the future of Islam in America.²⁴⁵ Intracommunity gender norms are currently under pressure to adapt to the new economic and social environment where many Muslims are experiencing for the first time the stigma attendant with ethnic and religious minority status.²⁴⁶ Yet, they still face pressures to conform to cultural traditions and practices based on Islamic principles or cultural practices from their country of origin.²⁴⁷

Within some Muslim communities, Muslim women face familial pressures to control their sexuality and mobility because women’s morality reflects on the morality of their families and religious and ethnic communities’ writ large.²⁴⁸ As a result, many Muslim women are pressured to follow in-group gender norms that mandate finding a suitable husband approved by their families and preserving the family’s reputation. Indeed, unmarried Muslim women often lament the pressures of living between different worlds wherein they worry about the social price their parents may pay for their choices in violation of traditional Islamic gender norms.²⁴⁹

Having to compartmentalize parts of their identities to exist in their different worlds at home, school, and their peer worlds, Muslim women face contradictory identity pressures.²⁵⁰ Conscious of being scrutinized by the government, their religious communities, and their families, young Muslim women carry a heavy burden of living between and within multiple cultures and selves.²⁵¹ As wives, they are expected to prioritize their family’s needs over their own professional ambitions resulting in “off ramping” from their careers, an experience affecting many American working mothers.²⁵² The more conservative her religious and ethnic community, the more socially conservative and traditional she is expected to behave, including devoting her life to working inside the home. Failure to accommodate what she views as misogynist or anachronistic cultural practices may result in expulsion from her religious and ethnic community, which entails significant psychological costs.²⁵³

At work, Muslim mothers face the same pressures as other women who struggle to balance their careers with their family commitments. They, too, are suspected by their employer of prioritizing family over work such that higher quality work, promotions, and opportunities that lead to long term success and prestige are denied.²⁵⁴ To offset this stereotype, they feel pressure to work more hours than their male colleagues and demonstrate their willingness to put work over family even if the same is not expected of male colleagues.²⁵⁵ All the while, they must be firm but pleasant leaders who keep a smile on their face while male colleagues are forgiven for emotional outbursts caused by the stresses of the job.²⁵⁶

Like other women, Muslim women must cautiously guard their professional ambition so as to avoid triggering resentment for being “too political,” “too aggressive,” or “not a team player.”²⁵⁷ And their personal presentation must adhere to traditional notions of femininity and attractiveness, but be careful not to be seen as too sexy such that they will not be taken seriously or invite sexual harassment.²⁵⁸ In the end, Muslim women’s appearances and behaviors are heavily scrutinized and judged based on prevailing gender stereotypes.

But the scrutiny does not end there. They are also subject to stereotypes of Muslims in general and Muslim women in particular. The American public views Muslims as highly suspect, inclined to engage in or support terrorism, and foreigners from uncivilized nations.²⁵⁹ Muslim communities are accused of treating Muslim women as property who must obey their husbands and fathers.²⁶⁰ Muslim women, therefore, are pressured to perform a “Good Muslim Woman” whose assertiveness counters misperceptions about her inability to lead and think independently. Her liberal Americanized dress, consumption of alcohol, and romantic relations with non-Muslims signals full assimilation into American culture. She must also be a “Good Muslim” who repeatedly expresses her patriotism, criticizes her country of origin as backwards, agrees that Islam breeds terrorists, and supports selective counterterrorism enforcement against Muslims as necessary for America’s national security.

Regardless of how each woman responds to these conflicting identity pressures, she is often assumed to lack agency by the dominant social group or the Muslim community who view her behavior as a product of coercion or brainwashing by the other group.²⁶¹ The same rebellious nature she employs to fight against coercive assimilationism at work may cause her grief within the Muslim community she seeks to defend, reform, and belong. Her demands to reinterpret Islamic doctrine and practices, particularly as they apply to women, invite accusations of religious subversion.²⁶² As she is pulled in multiple directions by pressures to perform to intragroup and intergroup identity demands, each woman struggles to negotiate the contradictions to develop an authentic identity that allows for both professional success and psychological well-being.²⁶³

B. Negotiating the Contradictions

As women at the intersection of various stereotypes, Muslim women of color form a hybridized identity that rescripts notions of what it means to be a Muslim woman, a Muslim, a member of her ethnic or racial group, and a woman.²⁶⁴ They negotiate their sense of self in a politically charged environment marred by intolerance within mainstream society, and at times, within their Muslim communities.²⁶⁵ They resist and destabilize assumptions about members of their identity groups to show the dynamic nature of identity.²⁶⁶

As hybridized subjects, they reject the polarity between Orientalism,²⁶⁷ that imposes racist colonial imagery of Muslims as savages and Muslim women as their oppressed victims, and politicized Islam, that essentializes the ideal Muslim woman as an obedient wife, self-sacrificing mother, and apolitical follower of male religious leadership.²⁶⁸ Notwithstanding their intragroup contestations, many Muslim women deem the cases of female oppression over-emphasized by out-group Western authors as bad faith and profit-driven efforts to reinforce cultural hierarchy and racism against Muslims.²⁶⁹ Seldom do Western audiences contextualize the extreme cases within the victim’s socio-economic, geographic, and individual circumstances.²⁷⁰ Nor are Western audiences informed that the male bad actors are violating Islamic beliefs.²⁷¹ Refusing to be pigeon holed as either oppressed or liberated, Muslim women in the United States are negotiating their identities into the politics of race, ethnicity, migrant communities in the diaspora, and their family life.²⁷²

Women who identify as Muslims vary “greatly in terms of their levels of religiosity, [ ]ranging from cultural to spiritual” to devout.²⁷³ Some Muslim women accept religious and cultural rituals as integral to what they deem is their authentic identity, while at the same time rejecting the sexism found in some Islamic practices. The headscarf, for example, allows many women to create cultural space that reflect their hybridized identities.²⁷⁴ Some Muslim women who choose to wear the headscarf do so to insulate themselves from intracommunity restrictions that accompany their status as unmarried women.²⁷⁵ Other Muslim women don a headscarf as a form of resistance against the sexualization of women in American society.²⁷⁶ In doing so, their headscarves signal to society, and men in particular, their religiosity and adherence to Islamic tenets of pre-marital abstinence.²⁷⁷ By using the headscarf to elude gendered restrictions, they are able to take advantage of educational and employment opportunities while retaining their membership within their traditional Muslim community.²⁷⁸

Some Muslim women embrace parts of traditional Muslim female identity arising from a subconscious need to belong to the community or genuine spiritual belief in such practices.²⁷⁹ But these same women may refuse to perform other parts of traditional Muslim female identity based on their individualized conception of Muslim feminism.²⁸⁰ They conduct their own research of Islam and decide what they will accept or reject, thereby bestowing upon themselves agency to decide how to shape their intersectional identities.²⁸¹ As a result, they may contest the traditional view that the headscarf is mandatory.²⁸² Instead, they may view the headscarf as either optional or a patriarchal tool to control women originating in male, not divine, prerogatives.²⁸³ They claim a space for themselves within their diverse Muslim communities through a rereading of Islamic codes and practices, and negotiate a hybridized Muslim female identity.²⁸⁴ In the end, having the space to develop an authentic identity that reflects a Muslim woman’s individual values, norms, and religious beliefs free of disparate treatment is consistent with the purpose and spirit of Title VII.

Current workplace antidiscrimination doctrine, however, fails to take these nuances into account. The following section makes recommendations on how Title VII jurisprudence can be better informed by the complex ways identity performance pressures disproportionately impose harms on protected classes of employees.

IV. Expanding Title VII Jurisprudenceto Keep Up

With Discrimination

Although the harms caused by pressures to perform one’s identity to comport with coercive assimilationism are well documented,²⁸⁵ the question still remains as to whether the law can provide adequate relief without unduly burdening employers. Courts are understandably skeptical of deputizing employers to serve as identity gatekeepers. Similarly, employee advocates do not seek to legitimize essentialist portrayals of low status groups—a real risk that comes with granting employers authority to define what traits are authentic to a particular identity such that they are protected by Title VII. Hence the law and the courts must be careful to balance the interests of employees’ legal rights to meaningful equal opportunity with the employer’s interest in evaluating employees based on bona fide job related qualifications.

This section proposes that existing Title VII jurisprudence prohibiting employment discrimination based on sex stereotyping should be expanded to include ethnic, racial, and religious stereotyping to protect employees who competently perform their jobs but do not or cannot perform their identities in accordance with coercive assimilationism. Such protections are especially important for Muslim women of color who are faced with the triple bind of having to perform the conflicting identity demands of the “Good Muslim Woman,” the “Good Woman,” and the “Good Muslim.”

Part A starts by arguing that courts should expand Title VII jurisprudence by incorporating social psychology and implicit bias studies. In turn, Part B proffers that the seminal gender stereotyping case Price Waterhouse Cooper v. Hopkins provides a doctrinal foundation for applying stereotyping theory to Title VII jurisprudence. Part C examines how courts have failed to incorporate race and ethnicity into workplace stereotyping doctrine, leaving racial, ethnic, and religious minority plaintiffs subject to coercive assimilationist pressures based on negative implicit stereotypes with no legal recourse. Finally, Part D analyzes the unique case of Muslim women of color as further support for the claim that courts are failing to keep up with the changing nature of discrimination. For these reasons, courts should incorporate stereotyping and implicit bias theory into disparate treatment jurisprudence such that intergroup discrimination based on intragroup differences falls under Title VII’s protection.

A. Incorporating Implicit Bias Analysis into Title VII

While Title VII makes it unlawful to discriminate, courts are tasked with defining what discrimination means and what actions meet the definition.²⁸⁶ Notwithstanding advances in the understanding of bias and discrimination in the social psychology literature, judicial constructions of discrimination rely on the courts’ layperson understandings of the nature of psychological processes that produce bias.²⁸⁷ For instance, implicit stereotyping theory has minimally influenced federal disparate treatment jurisprudence notwithstanding its prevalence in the social psychology literature on bias.²⁸⁸ Moreover, the belief that America is “post-racial” such that systemic discrimination is now a thing of the past causes judges to recognize only the most egregious forms of discrimination while overlooking the rise in discrimination caused by implicit bias and stereotyping.²⁸⁹

For a plaintiff to prove a prima facie discrimination case under Title VII’s disparate treatment theory, the plaintiff must establish the following three things: (1) she is a member of a Title VII protected class; (2) she was subjected to some negative employment action such as failure to hire or promote, termination, demotion; and (3) her protected group status was a “motivating factor” in the challenged employment action.²⁹⁰ The burden of proof then shifts to the employer to produce a legitimate nondiscriminatory reason for the adverse employment action. Upon doing so, the employee must then prove the employer’s proffered reasons were pretext for discrimination.²⁹¹

To prove that her protected group status was a “motivating factor” in the challenged employment action, courts require plaintiffs to bring forth persuasive evidence of the employer’s intent to discriminate or that impermissible stereotypes played a role in the employer’s decision making.²⁹² In Price Waterhouse Cooper , Justice Brennan explained that a protected class is a motivating factor “if we asked the employer at the moment of the decision what its reason were and if we received a truthful response, one of those reasons would be that the applicant or employee was a woman.”²⁹³ Brennan’s reasoning assumes the discriminator was conscious that he was discriminating at the time he made the decision.²⁹⁴ However, numerous social psychology studies demonstrate that “disparate treatment can result from . . . implicit stereotypes” and subconscious biases, in addition to “deliberate, fully conscious” bias.²⁹⁵

Whether implicit bias contributes to discrimination depends on “the extent to which particular social norms are [ ] salient in [a] particular situation[ ], [the] decision makers’ perceptions of control,” “relevant information” available, and the decision maker’s “motivation to avoid biased decision making.”²⁹⁶ A well-meaning decision maker may be unaware that her employment decision was based on her biased judgment of a negatively stereotyped employee.²⁹⁷ And yet, courts often reject implicit stereotyping because judicially constructed understandings of discrimination follow Justice Brennan’s reasoning that presumes bias is explicitly expressed and operates with the discriminator’s knowledge.²⁹⁸

As shown in Part I, the psychological science has increasingly refined understandings of how implicit prejudices bias the social judgments and choices of people. Subjective construal of a situation is influenced by a variety of factors arising from social stereotypes such that biases may operate outside of the perceiver’s conscious, attentional focus.²⁹⁹ Decision makers, therefore, may believe their lukewarm or negative evaluations of employees are based exclusively on legitimate non-discriminatory reasons when in fact they may be based on perceptions and judgments tainted by stereotypes.³⁰⁰ They may subconsciously give high status group members the benefit of the doubt, be more forgiving of their mistakes, and mentor them while imposing a higher burden to prove competency on low status group members.³⁰¹

As a consequence, Muslim women of color face three dilemmas with regard to their social identity. First, Muslim women are pressured to perform their identity to assimilate into the dominant social group’s norms and culture³⁰² while facing intragroup pressures by their communities that contradict assimilationist demands.³⁰³ Second, Muslim women of color who choose to succumb to assimilationist identity pressures may find it is simply not possible to evade adverse treatment. The multiple stereotypes and contradictory performance expectations related to their multiple identities as women, Muslims, ethnic minorities, and Muslim women create a no-win situation. Third, the diversity among headscarved and non-headscarved Muslim women of color is obscured by an artificial polarity between assimilation and multiculturalism, stripping them of individual agency—the same Orientalist critique directed at Muslim societies.³⁰⁴ Ultimately, Muslim women face a false binary between full assimilation requiring that they dis-identify completely from their low status identities or reject altogether dominant group standards, when in reality, their social identities fall within a wide spectrum between multiple poles.

Incorporating stereotyping and implicit bias into Title VII is certainly not risk free. Richard Ford reasonably argues that identity-based claims should not be actionable because of the difficulty in determining what constitutes unlawful discriminatory.³⁰⁵ Identity-based rather than phenotype-based discrimination—the existing doctrinal model—entangles courts in defining the “wrong type” of Black, Latino, Muslim, woman, or other protected group such that an employer is guilty of discriminating against a subset of a protected class.³⁰⁶ Identity-based claims also risk essentializing protected groups into a pre-determined list of behaviors, attitudes, norms, and values that must be shown to prove unlawful identity-based discrimination.³⁰⁷ The criteria are often defined by male gatekeepers of a particular minority community, which can perpetuate intra-group disparities based on gender and minority status within the group.³⁰⁸

While such critiques are well founded, they under-estimate the harm caused by pressures to assimilate into an identity imposed by the dominant group to perpetuate a system that subordinates minority groups—precisely what the Civil Rights Act was aimed to prohibit.³⁰⁹ Institutional pressures to emulate and assimilate into the norms, values, and behaviors of the dominant group signals to low status groups that their cultural and racial characteristics are unbefitting of a “professional” workplace, and as a result are unwelcome.³¹⁰ Moreover, coercive assimilationist policies, even if implicitly enforced through identity performance pressures, create a dispiriting environment that penalizes individual authenticity,³¹¹ stifles creativity, increases health risks, and creates hierarchies of power among out-groups based on their ability to effectively perform their identity to serve the interests of the dominant group.³¹² All the while, the dominant social group’s work performance is unimpeded by coercive demands to look, act, speak, and live like someone else, which frees them to channel their mental energy and time towards bona fide work performance rather than stereotype-based identity performance.³¹³

As discussed in the next section, the Supreme Court in Price Waterhouse Cooper v. Hopkins struck down workplace rules that placed women in a double bind, such that accommodating one stereotype triggers violation of another stereotype resulting in adverse treatment regardless how the woman behaves. Similar considerations should be made in cases involving Muslim women who face a more taxing triple bind.

B. Price Waterhouse Cooper and Gender Stereotyping

Stereotyping can be ascriptive or prescriptive.³¹⁴ Ascriptive stereotyping “assumes that an individual possesses certain traits and attributes because of her group membership.”³¹⁵ Her ascriptive status is not dependent on her individual conduct, cannot be changed, and is presumed to be determined at birth.³¹⁶ In ascriptive gender stereotyping, for example, women are assumed to be genetically inferior to men in intelligence. Long before the Supreme Court ruled in favor of Ann Hopkins in Price Waterhouse Cooper v. Hopkins , ascriptive sex stereotyping had been struck down as unlawful.³¹⁷ Prescriptive gender stereotyping, however, is permissible.

Prescriptive stereotyping occurs when an employer requires that an employee exhibit certain traits or attributes because of her group membership.³¹⁸ In the case of Hopkins, her employer demanded that she “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry” because she was a woman.³¹⁹ When she failed to do so, she was denied a promotion notwithstanding her successful management of a multi-million government contract.³²⁰ Her superiors criticized her for being “overly aggressive” and “overcompensat[ing] for being a woman.”³²¹ She was advised to “take a course at charm school” even though her male counterparts were not penalized for similar behavior. In its opinion, the Supreme Court concluded that “we are beyond the day when an employer can evaluate employees by assuming or insisting that they match the stereotype associated with their group.”³²² While the Court’s ruling suggested a new anti-assimilationist antidiscrimination doctrine, the conception of stereotyping struck down by the Court was limited to consciously held beliefs about how women should behave.³²³ Implicit stereotyping perpetuating gender conformity arguably remained outside the decision’s scope.

Kimberly Yuracko has noted that prior to Price Waterhouse’s rhetorical ban on sex stereotyping, courts finding in favor of female plaintiffs relied on an unequal burdens test to differentiate between acceptable and unacceptable gender conformity demands, as defined by the social norms of the time.³²⁴ So long as the sex-based dress or appearance codes did not place a disproportionate burden on workers of one sex, whether male or female, workplace requirements that differentiated based on sex were lawful under Title VII.³²⁵

The unequal burden test is narrowly interpreted to apply only when gender conformity demands are not justified by conventionally gendered professional norms.³²⁶ Some courts, however, have struck down gender specific workplace practices that stigmatize women. In the case of O’Donnell v. Burlington Coat Factory Warehouse, Inc. , for example, the court struck down the requirement that women wear uniforms while men could wear professional business attire of their choosing.³²⁷ The court reasoned that sex differentiation consistent with conventional gender norms stigmatizes female employees.³²⁸

The linchpin of Price Waterhouse lies in the double bind test. The Court held that employees were prohibited from imposing gender conformity demands that conflicted with professional role demands.³²⁹ In Hopkins’ case, her employer demanded that she be demure, ladylike and hide her ambitions notwithstanding that successful performance of her job required her to be assertive and overtly competitive—traditionally male attributes.³³⁰ Hopkins was in a double bind wherein her employer placed her in “an intolerable and impermissible Catch 22: out of a job if [she] behave[d] aggressively and out of a job if [she] d[id] not. Title VII lifts women out of this bind.”³³¹ Consequently, the court applied the double bind principle broadly to include tensions, in addition to direct conflicts, between gender conformity demands and professional role demands.³³² Although the double bind concept would logically be extended to racial, ethnic, and religious conformity demands arising out of stereotyping and implicit bias, the courts have declined to do so.

C. Applying Stereotyping To Race, Ethnicity, and Religion

In stark contrast to gender, courts are unsympathetic to claims based on racial, ethnic, or religious identity demands.³³³ Some scholars argue this is a result of a pervasive belief within the judiciary that most Americans are now “colorblind” such that courts make minimal effort to understand the various stereotypes and racialized performance demands that minorities have to comply with in order to acquire and maintain employment.³³⁴ So long as conformity demands fit conventional professional norms—even if defined by white, middle-class, male dress and behavior—courts are unconcerned with the extra burdens in time, money, and energy costs imposed on minority employees.³³⁵ Courts often accept non-gender related conformity demands as uniform such that whatever burdens on racial or ethnic minorities exist are not the burdens that courts recognize for purposes of Title VII stereotyping jurisprudence.³³⁶

And yet employers may use workplace rules to communicate and reinforce their antipathy for particular racial and ethnic groups.³³⁷ When such practices are challenged in court, employers successfully argue that requirements to speak only English in the workplace;³³⁸ prohibit cornrows, braids, or dreadlocks;³³⁹ or uncover one’s hair are voluntary. Courts routinely discount the psychological and dignitary harms suffered by employees pressured to perform their racial or ethnic identities in accordance with the socially dominant group’s demands.³⁴⁰ Employees who perform their racial or ethnic identities in ways that trigger a cultural code associated with a low status group find themselves penalized and stigmatized.³⁴¹ In the case of Black women, for example, they must straighten out, curl up, or cover their natural hair to be accepted by and assimilate into white majoritarian society.³⁴² In the case of Muslim women, they must uncover their hair and bodies and disassociate from their purportedly backward religion and culture. But courts overlook the racial or ethnic animus rooted in negative stereotypical assumptions that causes an employer to categorically bar certain racial or ethnic behaviors.³⁴³

Courts’ narrow interpretations of Title VII, therefore, protect only involuntary displays of biological or visible characteristics or morphologies associated with a low status racial or ethnic group.³⁴⁴ Performed traits of a person that are part of an employee’s racial, ethnic, or religious identity are viewed as outside Title VII’s purview, notwithstanding the absence of a Congressional record barring claims involving voluntary performance identity.³⁴⁵ This leaves employers with unfettered discretion to discriminate among low status employees based on appearance, behavior, or other traits. Employees who are able or willing to perform their identities to comport with coercive assimilationist demands will be hired, retain their jobs, and receive higher quality assignments, better training opportunities, promotions, and pay increases.³⁴⁶ The same members of the low status group who do not or cannot convert, pass, or cover their low status identities find themselves adversely treated with no legal recourse under Title VII.³⁴⁷

Courts glean over the underlying biases and instead interpret the employer’s behavior and dress codes as a matter of personal choice rather than racial or ethnic status.³⁴⁸ Indeed, if choice and personal preference are the proper criteria, then Ann Hopkins should have lost her case as she could have voluntarily chosen to wear makeup, act more stereotypically feminine, and dress in skirts and heels. But the court found such expectations were discriminatory because they imposed gender stereotypes on female employees not imposed on male employees when no evidence existed that the gender conformity demands objectively related to work performance.

What judges fail to take into account is the racialization over time of certain social interactions, behavior, speech, religious beliefs, and physical traits other than skin color.³⁴⁹ Just as skin color, eye color, and nose shape are associated with particular races or ethnic groups; certain dialects, aesthetics, and mannerisms are associated with race and ethnic status.³⁵⁰ For example, all-braided hairstyles, cornrows, and dreadlocks trigger assumptions about the person’s African, African American, or West Indian ancestry.³⁵¹ Likewise, saris, bindis, and pashminas are associated with Southeast Asian women, thereby triggering perceptions of these groups.³⁵² Categorical workplace prohibitions of Spanish, Arabic, or other foreign languages associated with low status groups reflects a discriminator’s negative reactions and stereotypes of a particular racial or ethnic group. Penalizing behavior that does not mimic the social dominant group values burdens minority employees with obligations to convert, pass, or cover their identities that impose psychological and dignitary costs.³⁵³

As a result, courts should be more skeptical of vague, but unavoidably subjective, definitions of professionalism. Professionalism codes that convey a symbolic message of the inferiority of certain cultural, ethnic, or racial behaviors should be struck down. In making such determinations, courts should look at the facts from a historical and contemporary social perspective to determine if the mandated physical appearance or behavior is constitutive of race, gender, or ethnicity.³⁵⁴ Courts would inquire into whether a significant part of the racial or ethnic community at issue would see the challenged workplace policy as racially motivated. If so, then the court would presume that socially shared, unconscious racial attitudes influenced the decision maker, causing judges to be more probing in the alleged non-discriminatory purpose of the workplace rule at issue.³⁵⁵ For instance, judges should inquire whether the employer penalized dressing or behaving in a racially or ethnically salient manner because it caused discomfort to the socially dominant group or in fact harmed work product.

In sum, the employer’s conscious deployment of negative stereotypes should not be the only means of finding a violation of Title VII. Instead, judges should acknowledge that implicit stereotypes may have infected the employer’s professionalism codes such that behaviors, speech, and dress commonly associated with low status groups are banned in the workplace with no legitimate work-related justification.

D. Addressing the Case of Muslim Women of Color

Like other low status groups, Muslim women of color must work to prove to their employers that they do not fit multiple negative stereotypes. They must work harder to prove they are independent thinkers and able to take on responsibility to counter stereotypes that they are meek, oppressed, and subjugated.³⁵⁶ They must work harder to prove they are loyal team players who are grateful to be in America. They must work harder to prove they are respectful of male authority and adherents to conventional American gender roles in the workplace. And as they maneuver through conflicting identity performance pressures, they not only risk failing to negotiate the contradictions but they also suffer palpable psychological costs. The disparate identity performance demands remind them of their status as members of stigmatized groups. Their mental energies are taxed attempting to accommodate the contradictions while their coworkers benefit from the autonomy to be their authentic selves. The Muslim women who fail or are unwilling to accommodate coercive assimilationism are eventually demoted or terminated only to face courts indifferent to their plight.³⁵⁷

After investing years of her life in college, a professional Muslim woman is vested in her career and seeks to create a better financial future for her children. Losing her job as a result of failing to accommodate assimilationist pressures threatens her aspirations for social mobility as well as her identity as a professional, career woman. At the same time, she may identify with her religious and ethnic communities that provide her with a support network, a sense of self, and a welcoming space to raise her children. But unlike women from the socially dominant group, she faces contradictory pressures to perform her identity that strips her of individual autonomy over developing an authentic hybridized identity that reflects her diverse experiences.³⁵⁸ She seeks to rethink and reposition herself within her Muslim community as a woman who believes in gender equality and the right to choose how to live her life. She also seeks to create a space for herself within mainstream society wherein she can have access to professional success and opportunity while overtly maintaining an individualized Muslim and ethnic identity.³⁵⁹

Muslim women of color, therefore, find themselves in a unique position wherein they face a triple bind.³⁶⁰ The traits necessary to succeed in a “professional” white collar work environment and a “Good Muslim Woman”—independent thinking, assertiveness, ambition, and drive—are the same traits that trigger racial, ethnic, and religious stereotypes against women, Muslims, and ethnic minorities.³⁶¹ Following the findings in Ann Hopkins’s case,³⁶² courts should be more thoughtful and inquisitive in identifying whether stereotyping and implicit bias was a “motivating factor” in an adverse employment action.

Accordingly, this Article proposes that courts consider the following three factors in employment discrimination cases involving Muslim women of color: (1) does the employer’s expectations and evaluation of the Muslim woman employee impose an unequal burden on identity performance compared to other employees who are not Muslim women of color; (2) are the employer’s actions or rules motivated in part by negative stereotypes of Muslim women as meek, oppressed, or subjugated; of Muslims as terrorists, disloyal or suspect; or of the employee’s racial or ethnic group as backward, barbaric, or anti-American;³⁶³ and (3) does the employer’s actions or rules effectively stigmatize the Muslim woman employee as an outsider within the workplace.³⁶⁴ In doing so, courts would proactively consider these factors by looking at the evidence proffered by the parties, calling on experts in social psychology, stereotyping, and implicit bias, and holistically looking at what constitutes adverse employment action to look beyond the failure to hire or employment termination to include unequal access to training, high quality work, interaction with clients, and other opportunities that contribute towards professional growth.³⁶⁵

In addressing these three factors, courts should look to whether the traits the Muslim employee is criticized for possessing are traits that her male and non-Muslim coworkers also possess without penalty. Likewise, courts should thoughtfully consider whether her penalized traits—for example assertiveness, leadership, critical thinking—are traits that contribute towards success in her particular profession. Is her employer setting her up to be a “Good Woman” employee who is deferential, not ambitious in taking on leadership positions, and in conformity with conventional gender norms that doom her to remain at the margins of her profession? Similarly, is her strength of personality and drive tainted by stereotypes of Muslims and her ethnic group as aggressive and backward, leading to her being labeled a trouble maker and insubordinate when others outside her identity groups are not stigmatized for similar characteristics?³⁶⁶

For Muslim women whose religious identity entails visual “markers” such as headscarves, noticeably conservative dress, and requests for religious accommodation, courts should look to the cumulative effect on the employee. Rather than narrowly focus on whether the religious accommodation was in fact granted, courts should inquire as to whether her Muslim identity performance resulted in retaliation through social exclusion from the workplace such that she was subjected to inferior access to training opportunities that contribute towards better work assignments, stronger work evaluations, and eventually promotions.³⁶⁷ Courts should inquire whether the Muslim woman employee was given equal access to clients, included in relevant meetings, provided the same opportunities as her coworkers to learn the latest technologies or methodologies in her profession, and generally treated as an equal member of her team. And if other Muslim women of color were granted such opportunities, courts should ask whether the explanation is due to performing assimilationism or bona fide performance based criteria.

When Muslim women are subjected to offensive racial or religious jokes, excluded from social events, and informed of suspicions of their national loyalties, courts should not limit their analysis as to whether such acts rise to a hostile work environment claim.³⁶⁸ As such, courts should recognize as evidence of adverse employment actions verbal abuse, insults, unfair criticism, inferior training opportunities, inaccessibility to business development opportunities, or excessive scrutiny.³⁶⁹ Even if such acts alone are not sufficiently severe or pervasive to meet that standard, they may and should be considered in disparate treatment claims wherein the result was failure to promote, demotion, or employment termination. Begrudgingly tolerating employees who do not comport their identity performance to coercive assimilationist demands should not be mistaken for equality.

Courts must also recognize that promotions and pay raises do not occur in a vacuum but rather are an accumulation of work performance integrally linked to the type of work available to an employee and her social inclusion in the workplace. An employee who is not given the opportunity to take on projects that improve her skills or allow her to exhibit her leadership skills is doomed to a marginal position in the workplace and eventually expelled. Over time, this sets her up for a poor work evaluation and termination at worst or a stagnant professional path at best. Moreover, courts must scrutinize employers’ common claims that the plaintiff’s personality was the motivation for allegedly poor treatment. Such claims are often coded bias against minorities who do not conform to assimilationist demands.

While this Article proposes broader judicial interpretations of what constitutes disparate treatment on account of race, ethnicity and religion, it does not propose a change in existing burden shifting tests between parties. The plaintiff continues to bear the burden of proof to proffer a prima facie case of discrimination and that the employer’s alleged non-discriminatory purpose was pretext for unlawful discrimination.³⁷⁰ However, plaintiffs’ evidence of the type discussed above should be more seriously considered by courts as they take on a more holistic approach that considers the totality of the circumstances. Courts should look beyond a narrow reading of a performance evaluation and ask whether the employee’s racially and religiously salient identity performance caused the employer to set her up for failure in contrast to other employees’ whose identities assimilated into the majority’s demands. When plaintiffs introduce expert evidence by sociologists about the growing anti-Muslim sentiment after September 11th and negative stereotypes of Muslim women, courts should seriously consider how this impacts the workplace. Likewise, when social psychologists testify about the changing face of discrimination from overt to covert bias and explicit to implicit stereotypes, courts must acknowledge their responsibility in fettering out such bias.

Conclusion

While this Article’s proposal presents significant evidentiary challenges, it offers legal recourse to employees subject to discrimination arising from implicit biases rooted in pervasive stereotypes against low status groups.³⁷¹ Victims of implicit bias manifested through coercive assimilationist pressures to perform one’s identity based on the dominant social group’s expectations are falling through the cracks of Title VII doctrine.³⁷² Members of negatively stereotyped groups expend significant energy “managing their self-presentation and cultural displays to ensure they communicate competence, character, and commitment in the workplace.”³⁷³ They must actively dispel negative stereotypes applied to their group to avoid animus and stigmatization.³⁷⁴ Toward that end, low identifiers emulate the behaviors, preferences, and norms of higher status groups.³⁷⁵ If successful, they not only evade discriminatory treatment but also receive assistance reserved for high status in-group members.³⁷⁶

In the case of Muslim women of color, not only are they denied individual agency and the choice to live their authentic selves consistent with their religious and cultural values, but they also face a triple bind. If they assert independent viewpoints, do not fear challenging male power, ambitiously seek promotion at work and dress fashionably Western, then they are admired as a “Good Muslim Woman.” But the admiration for defying the yokes of purported Muslim and Arab cultural gender oppression is short lived. Their assertiveness soon becomes a liability that violates American gender norms that treat ambition as a flaw when applied to women.³⁷⁷ Moreover, their outspoken personalities and intrepidness in expressing critical views deem them a suspicious Muslim whose loyalties are questioned as an insubordinate employee in violation of American racial hierarchies.³⁷⁸

By highlighting the psychological burdens and an irreconcilable triple bind imposed on Muslim women of color, this Article echoes other scholars’ calls for a broader definition of race that includes physical appearance, language, associations, cultural activities and other mutable racial or ethnic characteristics.³⁷⁹ Rather than focus on morphology or the voluntary nature of a workplace rule, courts should determine whether certain workplace rules devalue cultural group status such that they perpetuate divisive cultural group status contests and stigmatize low status groups.³⁸⁰ Workplace rules that impose performance behaviors that reify racial and ethnic hierarchies in the workplace, and yet have no proven effect on work performance, should be struck down as violating Title VII. And employers should bear the burden of proving that such rules do not devalue or stigmatize certain racial, ethnic, or religious groups.³⁸¹

Toward that end, the Supreme Court’s unequal burden test in Price- Waterhouse should be expansively interpreted to include the psychological and dignitary harms imposed by coercive assimilationism. Courts should take seriously plaintiffs’ evidence that she had to work harder than her coworkers, not only at her job, but at overcoming assumptions of inferior competence, suspicions of disloyalty, perceptions of her foreignness, and other stigmatized traits rooted in negative stereotypes about Muslim women, Muslims, women, and her ethnic group. The more evidence she can show that she was stigmatized as an “other” in the workplace, the more a court should scrutinize the employer’s allegedly non-discriminatory purpose to inquire whether in fact unlawful bias was a motivating factor in the adverse employment action.³⁸² Adverse employment actions should be interpreted broadly to include cultural profiling and imposing work cultures based on subjective criteria defined solely by dominant social group norms.³⁸³

In the end, the excessive deference courts grant to employers needs to be reined in. At stake is far more than an employer’s autonomy to conduct his workplace to pursue higher profits. The ability of a diverse society comprised of multiple religions, races, and ethnicities to be inclusive and offer a fair chance to every citizen contributes to a politically stable society not plagued by separatism and segregation. Making equal opportunity meaningfully available rather than merely empty promises in employer policies contributes towards America’s success in an increasingly globalized economy.³⁸⁴