Intra-Group Preferencing: Problems of Proof in Colorism and Identity Performance Cases

Historically, U.S. anti-discrimination law has been concerned with the total exclusion of certain groups from the workplace or from particular job categories within the workplace. Laws were directed at this across-the-board intolerance. As scholars (including Devon Carbado, Barbara Flagg, Mitu Gulati, Angela Harris and others) have noted, this is not the sole or arguably the primary way in which discrimination operates today. Homogeneous institutions and job categories are now suspicious (and presumably the market will no longer tolerate such places). Thus, instead of the wholesale exclusion of groups, what we are more likely to see is intra-group “screening” or “preferencing” to determine who will be included; that is, instead of the total exclusion of a group, employers are more likely to identify within groups those individuals they find most palatable (e.g., by selecting a lighter-toned African American over a darker-toned African American, a woman who wears makeup over a woman who does not, or a gay male who downplays his sexuality over a gay male who celebrates it). Although scholars have done an excellent job documenting the ways in which intra-group discrimination happens and have made progress in securing legal recognition of intra-group claims, one question has received scant attention in the literature. It is this: assuming a legal basis for intra-group claims, can plaintiffs actually win these cases? In other words, it is one thing to be able to assert a right to relief; it is another to convince a fact finder to grant that relief. In the attached article, Intra-Group Preferencing: Problems of Proof in Colorism and Identity Performance Cases, I fill a missing void in the literature by exposing the unique challenges that plaintiffs face in proving intra-group claims. I also demonstrate ways in which traditional legal frameworks must be tweaked in order to address more subtle and nuanced contemporary discrimination

Aggressive Encounters & White Fragility: Deconstructing the Trope of the Angry Black Woman

Black women in the United States are the frequent targets of bias-filled interactions in which aggressors: (1) denigrate Black women; and (2) blame those women who elect to challenge the aggressor’s acts and the bias that fuels them. This Article seeks to raise awareness of these “aggressive encounters” and to challenge a prevailing narrative about Black women and anger. It examines the myriad circumstances (both professional and social) in which aggressive encounters occur and the ways in which these encounters expose gender and racial hierarchies. It then explores how the intersectional nature of Black women’s identities triggers a particularized stereotype or trope of the “Angry Black Woman” and explains how this trope is often invoked in aggressive encounters to deflect attention from the aggressor and to project blame onto the target. After discussing the harmful effects of aggressive encounters and the absence of effective legal mechanisms to address them, the Article sets forth tangible steps that individuals can take to minimize their incidence