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Legal system failing to protect against identity discrimination, according to Fox School researcher

September 12th, 2016

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foxdamid39932__1jr3494-200x300Caitlyn Jenner identifies as transgender. Tiger Woods identifies as “Cablinasian,” a term he created.

What do the television personality and champion golfer have in common? Their racial and gender identities are not easily defined.

Like Jenner and Woods, many Americans can relate. A researcher at Temple University’s Fox School of Business posits that employment laws in the American legal system be restructured to offer civil-liberties protections for citizens who face identity discrimination.

“This isn’t a race or a gender issue. It’s an identity issue,” said Leora Eisenstadt, an Assistant Professor in Fox’s Legal Studies in Business department. “Society has changed, but our laws and legal formulas often look at individuals as members of categories into which a person can fit neatly. Today, there is no such purity. That doesn’t exist, which demonstrates how our laws are out of step with reality.”

Eisenstadt’s research points to Title VII of the Civil Rights Act of 1964, which protects employees from discrimination on the basis of sex, race, color, national origin, and religion. She said Title VII, however, does not always or easily protect against the discrimination of multiracial or transgender individuals. Courts are often baffled by these fluid identities, she said, sometimes rejecting the cases on those grounds and, other times, ignoring the worker’s actual identity to make the legal formula work.

“Cases have been thrown out of court because the plaintiffs did not fit into a box,” Eisenstadt said. “Unfortunately, according to many courts, if you can’t prove you are a member of a single protected class, your case will not reach a jury. As a result, the law has often prompted individuals to sacrifice part of their identity in order to fit into a box and have their case heard.”

And this confusion in the courts has a negative impact on employers and employees alike, since a lack of clarity in the courts can lead to more difficult employment decisions, an inability to effectively train management and human resources professionals, and litigation that eats up precious resources.

In her research, Eisenstadt cites the United States Census and Facebook as examples of society being ahead of the courts. In 2000, the U.S. Census Bureau implemented a system in which it asked Census respondents to “check all that apply” in regard to the races with which they identify. She also called attention to Facebook. This year, the social media platform began offering its 189 million U.S. users more than 50 gender-identity options.

What these prove, Eisenstadt said, is that people cannot always be categorized so easily.

“In employment discrimination law, workers need to prove that they are a part of a protected class in order to bring a discrimination suit,” she said. “In theory, everyone is a member of a protected class. But in society today, those categories are porous and fluid. Not everybody has a single race or a gender. You might have multiple races or multiple genders or you might reject that categorization altogether.”

The American Business Law Journal recently published Eisenstadt’s theoretical research paper, titled, “Fluid Identity Discrimination.”

Eisenstadt’s research centers on employment discrimination as it relates to race and gender. In 2012, she published a theoretical research paper, titled, “The N-Word at Work: Contextualizing Language in the Workplace,” in the Berkeley Journal of Employment and Labor Law. That paper examined the power of language, and who – based on identity – was permitted to use particular words in the workplace.

“We are moving toward an age of fluid identities, if we aren’t there already, and our employment laws have not caught up,” Eisenstadt said.

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