Blog Post 46: Colorism: How Racism within the Black Community can Qualify as Discrimination under Title VII or its Predecessor the Civil Rights Act of 1866

By: Nakuma Wani-Kenyi

It is no secret that racism among different races exists.  It is also no secret that there are protections for victims of such an act on the basis of discrimination.  Title VII prohibits “employment discrimination based on an individual’s race, color, religion, sex, or national origin.”[1] Racism, however, can occur within the same race.  Unlike many forms of injustice, Colorism[2] is a form of discrimination that is rarely publicly addressed, yet it happens daily in the black community. [3] For many dark-skinned blacks, colorism has existed just as much as racism.[4] Darker skinned blacks were envious of the complexion, hair, and looks of their lighter equivalent.[5] This form of discrimination dates back to slavery where the dark-skinned slaves worked in the hot fields, and the light-skinned slaves were left to work inside the homes.[6]

A recent study from Villanova University found that white job interviewers noted dark-skinned blacks as less intelligent than their light-skinned counterparts.[7] The study highlights that skin tone is a measure considered as a level of competency that ultimately translates into hiring determinations.[8] Despite being a direct contributing factor to racial prejudice, colorism has largely gone missing from most mainstream conversations about how racism works in America.[9]

Although colorism is being called the subset of racism[10], is it legally protected in the same way?  In Walker v. Secretary of Treasury, IRS, a light-skinned black woman brought a discrimination claim against her boss, a dark-skinned black woman, alleging that she was terminated due to her lighter skin.[11]  While the defendant moved for summary judgment[12], the court held that discrimination based on skin tone, no matter if it is the same race, states a claim under Title VII.[13] To even further support the claim, the court analogized the facts to the historical predecessor of Title VII, the Civil Rights Act of 1866.[14] The court stated that the purpose of § 1981 of the Civil Rights Act of 1866 is the “protection of citizens of the United States in their enjoyment of certain rights without discrimination on account of race, color, or previous condition of servitude.”[15]

The Supreme Court has stated that “all personnel actions affecting employees . . . shall be made free from any discrimination based on race, color, religion, sex or national origin.”[16]  Furthermore, it referenced that § 1981 repeatedly covers people of “every race and color”. [17] In fact, the Supreme Court even goes further by stating that “it is not even essential to be physiognomically[18] distinctive.” Although Title VII does not define “race” and “color,” interpretive guidance by the Equal Employment Opportunity Commission (“EEOC”), a government agency that enforces laws against discrimination in the workforce, makes clear that the two terms are not synonymous.[19] The EEOC explains that courts have commonly understood color to refer to a skin tone or complexion.[20] Therefore, discrimination can occur based on the lightness, darkness, or other color characteristic of the person.[21] Even though race and color clearly overlap, color discrimination can still occur between persons of different races or ethnicities, or between persons of the same race or ethnicity.[22]

Although courts have had a voice on this issue, colorism has essentially remained in the black community.  In rare instances where it does surface on mainstream media, it is “often framed simplistically as a form of internalized racism, rather than questioned as a broader social issue.”[23] While the light might be dimmed on this issue, the fact still remains that colorism exists in the real world, and clearly in the realm of the legal world as well.

 

[1] 42 U.S.C. § 2000e-2(a).

[2] See Nadra Kareem Nittle, Definition of Colorism, About News, http://racerelations.about.com/od/raceconsciousparenting/fl/How-Parents-Can-Counter-Colorism.htm (last visited Oct. 27, 2015) (defining Colorism as “is a practice of discrimination by which those with lighter skin are treated more favorably than those with darker skin.”).

[3] See Derrick Clifton, There’s a Big Issue Missing From How We Talk About Race—One Study Proves It, Identities.Mic (Mar. 2, 2015), http://mic.com/articles/111578/there-s-a-big-issue-missing-from-how-we-talk-about-race-one-new-study-proves-it?utm_source=policymicTBLR&utm_medium=main&utm_campaign=social.

[4] See Kristin Collins Jackson, 5 Truths About Colorism That I’ve Learned As a Black Women in NYC, Bustle, (Nov.  18, 2014) http://www.bustle.com/articles/37427-5-truths-about-colorism-that-ive-learned-as-a-black-woman-in-nyc.

[5] Id.

[6] Id.; see also Clifton, supra note 2 (explaining that light-skinned blacks performed domestic jobs indoors while the dark-skinned blacks performed gruesome fieldwork outdoors).

[7] See Clifton, supra note 2 (explaining further that interviewers preferred “close proximity to . . . [the] white skin.”).

[8] Id.

[9] Id.; see also Jackson, supra note 4 (media outlets have long been accused of lightening the skins of black celebrities).

[10] See Evrod Cassimy, The fight against colorism in the black community, Click On It Detroit, (Mar. 4, 2015) http://www.clickondetroit.com/lifestyle/the-fight-against-colorism-in-the-black-community/31610688.

[11] Walker v. Sec’y of Treasury, I.R.S., 713 F. Supp. 403, 405 (N.D. Ga. 1989).

[12] Id. (arguing that race is the same thing as color).

[13] Id.

[14] 42 U.S.C. § 1981.

[15] Id.

[16] 713 F. Supp. at 406.

[17] Id. at 405.

[18] Id. at 406 (defining physiognomic as “relating to physiognomy or external aspect.”).

[19] Gill v. Bank of Am. Corp., No. 2:15-CV-319-FTM-38CM, 2015 WL 4349935, at *4 (M.D. Fla. July 14, 2015).

[20] Id.

[21] Id.

[22] Id.

[23]See Clifton, supra note 2.