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University of Wisconsin Law School




Forty years after the passage of Title VII, scholars Marianne Bertrand and Sendhil Mullainathan reported the results of their groundbreaking study, Are Emily and Greg More Employable Than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination. Their study revealed that simply having an African American-sounding name significantly decreased one's opportunity to receive a job interview, regardless of occupation or industry. The results of Bertrand and Mullainathan's investigation raise critical questions about the effectiveness of Title VII as a remedy for race discrimination in the hiring market today, especially as employment discrimination has evolved into different forms. As shown by the study, in many instances, employers rely on proxies for race, such as a person's name, to exclude an applicant from consideration. Outside of the context of age and national origin discrimination, very few scholars have examined the problem of proxy discrimination, and none have analyzed how to address such discrimination as it relates to race in light of theories regarding the social construction of race, in particular what it means to be correctly or incorrectly perceived as belonging to a certain racial group on the hiring market. This Article borrows from the definition of disability under the Americans with Disabilities Act (ADA) and the courts' analyses of disability discrimination cases under the regarded as disabled provision of the ADA, which allows a plaintiff to bring a claim against an employer who regards the plaintiff as having an impairment that substantially limits a major life activity, to propose a new method for analyzing race-based proxy discrimination claims. Part I examines the ways in which race is socially constructed and analyzes several studies to demonstrate how the construction of race by cultural and social factors can have damaging effects on the job market for those perceived as belonging to certain racial groups. Part II analyzes the current framework under Title VII for evaluating individual disparate treatment cases based on race and describes how federal courts have failed to recognize the way in which race is socially constructed. Part III then borrows from a framework used in proving disability discrimination to argue for the inclusion of race discrimination claims where one is, for example, regarded as black, with all of its collective negative imaging, to redress discrimination in the workplace. Finally, this Article concludes by explaining the importance of maintaining the effectiveness of Title VII by judicially interpreting such legislation in a manner that comports with the realities of racism and race discrimination.

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