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January 7, 2016

Law is still black & white, not multiracial, Fordham prof says

Despite the fact that more people are identifying themselves as multiracial on the U.S. census, decisions in discrimination cases involving multiracial defendants still are primarily based on the presence of anti-black prejudice, and there is no need to change civil rights laws.

Tanya Hernandez

Tanya Hernandez

That was the message of Tanya Hernandez, professor of law at Fordham University, who delivered the final fall Buchanan, Ingersoll & Rooney lecture in the School of Social Work’s Center on Race and Social Problems last month.

Hernandez, author of “Racial Subordination in Latin America,” spoke on the topic “Multiracial in the Workplace: A New Kind of Discrimination?” She is studying mixed-race identity and discrimination law in the United States in preparation for her next book.

Hernandez noted that biracial or mixed-race identity has been receiving more attention in recent years in America.

“There is a public perception that multiracial racial experiences were distinctive” from the lives of those with only a single race — and a belief by some “that racial mixture itself will destroy racism … the equating of racial mixture with racial harmony,” and the notion of “shade confusion, which will eventually destroy the black-white dichotomy.”

Along with a literal mixing of racial differences, there has been an increase in the number of multiracial people who file discrimination lawsuits. In response, multiracial identity scholars, as Hernandez labeled them, have posited that the U.S. needs to revise older laws that recognize only blacks, whites and a few other racial categories. Such scholars contend that “courts [have] misunderstood the nature of discrimination against multiracial persons” when multiracial status is not acknowledged during cases.

On the contrary, Hernandez argued, “the overwhelming number” of multiracial cases include discriminatory comments about blackness or at least non-whiteness, not multiracial status.

Bias “is not novel or particular to multiracial persons,” she said, noting that such individuals most often are experiencing anti-black discrimination. Their “sociopolitical race” is still black or white, no matter how multiracial people perceive themselves.

“I’m not trying to rob people of their personal identity,” she added. But her forthcoming book will show that anti-black prejudice remains the central feature of racial discrimination in America, and thus must remain the focus of legal protections.

“The exotification of racial mixture can be a distraction” from supporting current law, she said.


Hernandez pointed to a number of employment discrimination cases that demonstrate how courts still make decisions based on a plaintiff’s status as black or white, not a mixture. For instance, Jill Mitchell, a light-skinned multiracial person with black and white parents, brought a discrimination suit against Champs Sports in 1997. She had been hired in 1996 as a management trainee at a Champs in Beaumont, Texas, but claimed her store manager’s behavior changed for the worse when he discovered she was partly black. She eventually was demoted, replaced by a white man and terminated.

In federal court, she convinced the court system to provide her with a lawyer, which is a rarity in a civil case, and not a requirement for litigants unable to afford counsel, unlike in criminal cases. She then obtained a confidential settlement from Champs.

“This all sounds great for her,” Hernandez said, and must be a victory against multiracial discrimination, multiracial identity scholars have said. But the court referred to her as black throughout its proceedings. While this oversimplified Mitchell’s identity in the view of such scholars, Hernandez added, the court’s view did reflect the events alleged in her case — that she was the victim of anti-black prejudice, not prejudice against those who are multiracial.

“Many more cases implicate anti-black bias than any other form of discrimination,” Hernandez pointed out: 87 percent, versus 13 percent that allege other prejudices.

In another discrimination case including a multiracial plaintiff, Marlon Hattimore joined several other GNC employees in claiming a hostile work environment and disparate treatment on the basis of race in the mid-2000s. After refusing to dismiss the case, the judge included Hattimore among those protected from discrimination for being black. Multiracial identity scholars, Hernandez contended, fail to make clear how Hattimore would have benefited if the case had acknowledged his multiracial status instead.

In a case alleging African Americans discriminating against a lighter-skinned man of mixed race in the Washington, D.C., fire department, Hernandez said that the plaintiff’s victory “wasn’t about being mixed. It was about how the mix manifested” — how he was perceived as too white by black colleagues.

Even when alleged discrimination cases brought by multiracial individuals end in defeat, the loss is “not because they are multiracial,” Hernandez contended. In one case, a Boca Raton, Florida, physical education teacher of black and white descent claimed his school district was discriminating against him by reassigning him, causing him to leave the district. The court did not rule on the basis of the plaintiff’s mixed race but because there was too little evidence of prejudice altogether, Hernandez said.

“Why then are multiracial identity scholars so convinced that the emerging number of multiracial cases requires a new set of multiracial laws?” she asked.

“The multiracial community lobby” points to increasing numbers of people checking the “multiracial” box on the U.S. census but “haven’t shown a history of multiracial discrimination,” she concluded. Focusing on the multiracial status of the plaintiff “dis-serves the needs of multiracial people experiencing discrimination,” she added.

“Fighting for multiracial recognition in cases may be the right fight, but it’s in the wrong place, the courts,” Hernandez said.

—Marty Levine

Filed under: Feature,Volume 48 Issue 9

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