Suppose Ted Cruz Identifies as Asian

 

     This clip has been making its way around the internet. During (I think it was day three of) the Senate Judiciary Committee's hearings on Judge Ketanji Brown Jackson's nomination, Ted Cruz asked Judge Jackson if he could identify as an Asian man and sue Harvard University for discrimination because of his Asian status. To this, Judge Jackson gave an answer that, to many people, might appear to be a non-answer. She told Senator Cruz that if that case came before her as a judge, she would have to assess his standing based on court precedent and constitutional principles. It's the kind of answer we've all come to expect from Supreme Court nomination hearings. 

     Now, Ted Cruz might have asked this question to attack what he calls "modern leftist sensibilities." He is quite obviously trying to attack trans identity, and the tactic of comparing transgenderism to transracialism* is not new. And it might make for a good partisan soundbite to say that Judge Jackson won't rule out transracial identity, which one might assume is evidence that she is a radical. But putting aside any partisan talking points, the question that Cruz asked is actually an important one, and one for which the law does have a mechanism for addressing. And believe it or not, there is nothing radical about claiming a white Hispanic man could be the victim of anti-Asian discrimination. 

     I am going to preface my remarks here by saying that my area of expertise is employment discrimination law as it is written and practiced in New York State. There are variations in discrimination law based on location/jurisdiction, and it differs depending upon whether we are talking about employment discrimination, education discrimination, public amenities discrimination, housing discrimination, etc. Because employment discrimination law is what I work with, I will largely be referencing guidance materials related to employment discrimination, but you should be able to see how the same principles would apply across other categories. But I want to lead with this disclaimer in case there are any differences between laws I am unaware of.

     To take care of another piece of housecleaning, Harvard has denied all accusations of anti-Asian discrimination. "Harvard College does not discriminate against applicants from any group in its admissions processes." (See HERE) 

     Having said that, let us now, purely for the sake of hypotheticals, suppose that Harvard is discriminating against Asian students. Suppose Harvard keeps two sets of admission standards, one for Asian students and one for everyone else. Suppose the standards for admittance for Asian students are harder than for any other ethnicity. Other students only require a 3.8 GPA to get into Harvard. Asian students require a 3.95 GPA. Asian students, unlike other students, are required to take personality tests to make sure they have a "positive personality."And the admissions board has decided that every Affirmative Action admission will come at the expense of an Asian admission. I think we can all agree these standards would be discriminatory against Asians.

     Now, consider these three questions: 

• If Ted Cruz, a Hispanic man, applied to Harvard and identified himself as an Asian man, and he was subject to the harder Asian admission standards, was Ted Cruz the victim of illegal discrimination?
• If Ted Cruz applied to Harvard and did not identify his ethnicity at all, but Harvard assumed he was Asian and subjected him to the harder Asian admission standards, was Ted Cruz the victim of illegal discrimination?
• If Ted Cruz applied to Harvard and identified himself as Hispanic, but the Harvard admissions office thinks he looks Asian and decides to subject him to the harder Asian admission standards, was Ted Cruz the victim of illegal discrimination?

     What all of these scenarios have in common is that Harvard thinks Ted Cruz is Asian, and they discriminate against him based on what they perceive to be his race. In a way, how Ted Cruz identifies himself is really immaterial, because Harvard's actions, based on his perceived race, remain the same. This type of discrimination is sometimes referred to as "perceived-as" discrimination, where a person is discriminated against not because of any objective fact about themselves, but because somebody else perceives them as belonging to some group. 

     There are some disagreements in the courts as to how perceived-as discrimination complaints should be handled. (Check out this academic article on the topic to get a better picture.) However, as a general rule, the guidance issued by state and federal authorities usually states that discrimination based on perceived race should be treated the same as discrimination based on a person's actual race.

     In its guidance on race discrimination in the workplace, the EEOC states that if an employee is discriminated against because of their perceived race, this is a violation of the law, "regardless of how the individual identifies himself." It defines perceived-as race discrimination as follows:

Perception: Employment discrimination against an individual based on a belief that the individual is a member of a particular racial group, regardless of how the individual identifies himself. Discrimination against an individual based on a perception of his or her race violates Title VII even if that perception is wrong. (Guidance found here) 

     In New York, the guidance that I often look to states:

No decision affecting hiring, promotion, firing or a term, condition or privilege of employment shall discriminate on the basis of a person’s race or color, nor shall employees be harassed or otherwise discriminated against on such basis, or perceived basis. (Guidance HERE. Emphasis is mine.)

     And this guidance makes sense, even though not all courts have adopted this standard. Discriminating against somebody because you think they are Asian, as an example, is not somehow OK because they aren't actually Asian. 

     In 2018, the Human Rights Campaign put out a pamphlet on "Discrimination Based Upon Perceived Characteristics." They make the case that discrimination based on perceived race is still harmful, even if the perception of race is mistaken. They call for courts that do not already recognize perceived-as discrimination to do so immediately because the harm is just as real.

Courts that exclude misperception discrimination from the protection of nondiscrimination laws often do so assuming that the employee has not been harmed because they are not actually a member of the protected class. But nothing could be further from the truth – the employee is still being harassed or fired regardless of their actual status. Additionally, allowing for this discrimination to continue unchecked undermines these essential laws and sends a harmful message to the vulnerable populations they are designed to protect.

     To help drive home this point, let's take a look at a couple real-life examples. This first one is a case handled by the EEOC and can be found on their website here. 

In September 2006, the Korean owners of a fast food chain in Torrance, California agreed to pay $5,000 to resolve a Title VII lawsuit alleging that a 16-year old biracial girl, who looked like a fair-skinned African American, was refused an application for employment because of her perceived race (Black). According to the EEOC lawsuit, after a day at the beach with her Caucasian friends, the teen was asked if she would request an application on her friend's behalf since the friend was a little disheveled in appearance. The owner refused to give the teen an application and told her the store was not hiring anymore despite the presence of a "Help Wanted" sign in the window. After consultation among the friends, another White friend entered the store and was immediately given an application on request. EEOC v. Quiznos, No. 2:06-cv-00215-DSFJC (C.D. Cal. settled Sept. 22, 2006).

     What is material in this case is not how the biracial 16 year old girl identifies herself, or any kind of objective standard for assessing her race, but how the owners of the restaurant identified her. The discrimination was real and illegal, regardless of whether the restaurant owner was correct in identifying her race. Now, let's look at another case. This time, let's quote directly from a court case from the Fifth Circuit Court of Appeals:

Rafiq began having problems with harassment at Streater-Smith immediately following the September 11, 2001 terrorist attacks. . . Upon seeing Rafiq, Kiene called out, “Hey, there’s Mohommed,” and Argabrite said, “Where have you been?”, in a mocking way, at which point everyone began to laugh. Rafiq inferred from these comments “that [his] supervisors and colleagues were implying that [he] had participated in some way in the terrorist attacks against the United States.”

. . .

Kiene and Argabrite also allegedly ridiculed and harassed Rafiq in other ways. For example, Kiene asked Rafiq, “Why don’t you just go back where you came from since you believe what you believe?” Kiene and Argabrite mocked Rafiq’s religious dietary restrictions and his need to pray during the workday. They also often referred to Rafiq as an “Arab,” even though Rafiq told them on numerous occasions that he was from India. In addition, Argabrite once played a “Taliban” joke over a speaker on the sales floor. According to Rafiq, this harassment continued through the end of his employment. (5th Circuit Court of Appeals, EEOC v. WC&M ENTERPRISES, INC.)

     In this court case, there was a question that arose about national origin. Rafiq was Indian, but his coworkers discriminated against him as though he was Arab. They actually did not make any anti-Indian statements. For this reason, the district court said Rafiq's case did not meet the statutory standard for national origin discrimination. However, the Fifth Circuit reversed this decision, stating:

[A] party is able to establish a discrimination claim based on its own national origin even though the discriminatory acts do not identify the victim’s actual country of origin. (ibid.)

     The Fifth Circuit cites other case law to defend this position. It's worthwhile citing this paragraph of case law to show how the Fifth Circuit assessed its position:

Langadinos v. Appalachian Sch. of Law, No. 1:05CV00039, 2005 WL 2333460, at *1 n.6 (W.D. Va. Sept. 25, 2005) (“The plaintiff may still establish a cause of action under the Civil Rights Act despite the defendant’s mistaken belief that his ethnic characteristics are those of a person of Italian, rather than Greek, descent.”); Kanaji v. Children’s Hosp. of Philadelphia, 276 F. Supp. 2d 399, 401-04 (E.D. Pa. 2003) (“Defendant fails to cite a single case where a court has held that a plaintiff alleging ‘national origin’ discrimination must specify a ‘country’ or ‘nation’ of origin.”); LaRocca v. Precision Motorcars, Inc., 45 F. Supp. 2d 762, 770 (D. Neb. 1999) (“The fact that [co-worker] ignorantly used the wrong derogatory ethnic remark toward the plaintiff is inconsequential.”) (ibid.)

     Not all jurisdictions follow this case law, and a Fifth Circuit decision, obviously, only applies to the Fifth Circuit. But really, this is just common sense. Your discrimination doesn't get legal protection just because you're ignorant. Anti-Arab discrimination is illegal, even when it is directed at an Indian. Rafiq was discriminated against, harassed, and ultimately fired, and the harm of those actions is real, even if his connection to 9/11, the Taliban, and Arab ethnicity is imaginary. He has grounds for claiming national origin discrimination, and the Fifth Circuit affirmed this. 

     And that brings us full circle. Anti-Arab discrimination is wrong, even when directed at an Indian, and anti-Asian discrimination is wrong even when it is directed at a Hispanic. 

     You see, as much as it might seem obvious in the anti-woke-sphere that Judge Jackson is copping out, that she won't come out and condemn radical transracial identities, the fact of the matter is, Ted Cruz's question is a legal question, and Judge Jackson is a judge, and that means she is required to give a legal answer. And in the world of anti-discrimination law, it is entirely possible that a Hispanic man can be the target of anti-Asian discrimination. And while there are, shall we say, problems with Ted Cruz identifying as Asian, those are cultural and political problems, not problems with the application of anti-discrimination law. The reality is that, whether Cruz identifies as Hispanic or Asian, that's really immaterial if Harvard discriminates against him as Asian. 

     In fact, Judge Jackson's answer was probably the best answer any judge could give to that question. The Supreme Court, to my knowledge, has never addressed this question, and if such a case did come before Judge Jackson, she would have to do exactly what she said she would do, assess the facts and apply Court precedent and Constitutional principles. 

Peace!     

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Footnote:

*The term "transracial" has two distinct meanings. First, the term is used to describe families who adopt children outside of their own race, e.g. transracial adoption. Second, it has also been used to describe people who change the race or ethnicity they identify with, such as Oli London, a British man who underwent surgery to look Asian and now identifies as Korean. It is this second sense of "transracial" that Ted Cruz is talking about and which has come up more often in political debate.

Inheriting Responsibility for Racism?

     Responsibility is a very tricky word, and one which I cannot help but feel is greatly misused and misunderstood. One of the greatest sources of confusion in our modern discourse is the equivocation between the words responsibility and guilt. The truth is, you can be responsible for something you did wrong, but you can also be responsible for something someone else did wrong. You can even be responsible when nothing has been done wrong. Guilt is not shared in this same way.

     If a child breaks the neighbor’s window, the parent is responsible for making the neighbor whole. A good parent will also use the opportunity to teach their child about responsibility, but ultimately the parent is responsible for resolving the situation. Guilt and responsibility are separable. 

     To give another example, suppose your grandfather dies, and you discover, while looking through his belongings, that he robbed a museum 60 years ago and was hoarding valuable stolen artwork in his attic. You are now in possession of stolen property, and that makes you responsible for that stolen property, even if you share none of the guilt of your grandfather. Responsibility is heritable. Guilt is not.

     And that brings me to the topic of racism and discrimination. There’s this argument that is popular among conservative circles that says that because white people today are not guilty of slavery or Jim Crow, they do not inherit any responsibility for slavery or Jim Crow. As a strict matter of logic, this is an invalid argument. The conclusion does not follow from the premise.

     The latest embodiment of this talking point is contained in Florida’s recently passed bill H.B. 7. This law now makes it illegal in the state of Florida for schools to teach that “an individual, by virtue of his or her race, color, sex, or national origin, bears responsibility for . . . actions committed in the past by other members of the same race, color, sex, or national origin.” Instead, the bill states that schools must teach a curriculum consistent with the proposition that “a person, by virtue of his or her race or sex, does not bear responsibility for actions committed in the past by other members of the same race or sex.”

     My problem with this bill, much like my problem with the conservative talking point in general, is that such language erases the heritability of responsibility. You can believe, as I do, that guilt is not heritable, while still believing the responsibility is. In short, Florida has encapsulated this logically invalid argument into law.

     Personally, I wholeheartedly oppose any attempt to make people feel guilty for their class privilege, social privilege, racial privilege, or any other type of privilege which might be inherited from past injustices. However, it does not follow that where there is no guilt there is no responsibility. 

     Anyway, that's just a thought. I wrote an essay on this topic of responsibility about 8 months ago, which I never finished because it became too philosophical and technical to share. I just felt the need to write a little something now after reading through the Florida legislation.

     In the interest of being clear about this legislation, the law does not make it illegal to teach critical race theory, as some believe. What it says is that such theory cannot be compelled as a term or condition of one's employee or student status. One can teach the theory "provided such training or instruction is given in an objective manner without endorsement of the concepts." Of course, some people will interpret any teaching of the concepts of critical race theory as an endorsement, so this will still have a "chilling effect" if the current culture warriors signal a thirst for litigation, but the law nevertheless does not forbid teaching critical race theory.

     To read the legislation, visit https://www.flsenate.gov/Session/Bill/2022/7/BillText/er/PDF