Article
Branding Identity
Denver Law Review
(2015)
Abstract
The Civil Rights Act of 1964 protects against discrimination on the
basis of race, color, religion, sex, or national origin—the so-called “protected
classes.” To make out a successful civil rights claim under the
current legal structure, a plaintiff must first identify the protected class
under which her claim arises (i.e., race or religion). She must then
identify a subclass of that protected class (i.e., African American race or
Christian religion) and assert that, due to her membership in or relationship
to that subclass, she was treated differently in violation of the law.
This Article explores the disconnect between self-identity and perceived
identity in the context of assigning membership in protected classes and
subclasses. Specifically, it analyzes the tension inherent in the protected
class deemed “color.”
By tracing the relevant legislative history of the Civil Rights Act of
1964 and the jurisprudence that has developed in the wake of its passage,
this Article provides critical historical context for how identity has been
assigned in civil rights jurisprudence. It finds that the institutional actors—
the legislature and the courts—abdicated their responsibility to
define the color protected class, differentiate color from race, and give
clarity to the relevant subclasses of a color discrimination claim. Recognizing
that gap, parties to civil rights actions have stepped into the void.
Most recently, parties have begun inserting the concept of “people of
color,” a term adopted by a modern progressive social movement to build
solidarity and power among non-White minorities, into civil rights challenges.
Such a shift in the language of civil rights law brings to the forefront
the tension between a plaintiff’s self-identification and the plaintiff’s
perceived identity that forms the basis of the defendant’s discriminatory
action.
This Article warns against adapting the people of color concept for
civil rights litigation. It argues that the category people of color, undoubtedly
important to developing cultural and political capacity and
power, should not be inserted into civil rights litigation. Because of the
history of conflating the terms color and “colored,” joined with the difficulty
in disentangling color from race, the existing legal structure for
establishing civil rights claims leaves little room for reimagining identity.
Inserting the people of color construct into civil rights challenges will
undercut the potential of the law to provide broad protection against discrimination
and runs counter to the goal of achieving racial equality.
Keywords
- discrimination,
- identity,
- people of color,
- critical race theory,
- civil rights,
- housing
Disciplines
Publication Date
Winter 2015
Citation Information
Kate Elengold. "Branding Identity" Denver Law Review Vol. 93:1 (2015) p. 1 - 51 Available at: http://works.bepress.com/kate-elengold/2/