Q. Over the course of the last two weeks there have been numerous stories written about Rachel Dolezal, the NAACP leader who claims that she is African American while her family claims that she is Caucasian. The reasons why this apparent dispute is a national story are, at least, twofold: first, Ms. Dolezal is an activist and (until recently) the head of her local NAACP; second, Ms. Dolezal, in response to the criticism, has stated that she “identifies” as black. The first issue seems to suggest that some feel an effective advocate for African American issues must be African American – or at least honest about his or her experience and background. As for the second issue, a person identifying as something other than that person’s physical biology has been an increasingly popular topic in recent national dialogue, particularly in the context of transgender issues. This new paradigm of “identity” is likely to be credited, in part, to former gold medalist and reality T.V. star Bruce/Caitlyn Jenner, who recently made it public that she identifies as female. While these headlines are grabbing national attention, for employers, these conversations may pose real issues beyond the pages of news websites and talk radio. Can an employee be fired for lying about his or her race? Is racial identity a legally recognized protected class?
A. Although the ideas of racial and gender identity are fairly new to many, and the law generally takes some time to catch up to these types of social issues, the existing laws do provide some guidance on how to approach workplace issues regarding “identity.” Based on the plain reading of these existing statutes, the answer to both of the above questions is likely – no.
Can an employee be fired for lying about his or her race? Both Title VII (Federal – Civil Rights Act) and FEHA (State – Fair Employment and Housing Act) generally prohibit employment decisions based on any protected class, which includes race and color. Both Federal and State discrimination laws also protect those that are perceived to fall within a protected category or are associated with a protected category. Being a liar is certainly not a protected class and an employer could surely take an adverse employment action based on lies about job qualifications. Still, it seems unlikely that an employer could make an employment decision based on an employee’s misrepresentation where the subject matter of the misrepresentation should not have been a consideration in the first place (such as race). Therefore, it is likely that an employee could not be fired because he or she lied about his or her race.
Is racial identity a legally protected class? California has a fairly long list of protected classes. Gender identity was specifically added to the list in 2014, but, to date, racial identity has not been. That said, conceptually it is difficult to separate “racial identity” from “race,” which is already protected. If somebody’s racial identity is different from that person’s actual race, then it would seem that any employment decision based on gender identity would either be based on the race with which the employee identifies or the employee’s biological race – which in either event would be based on race, and thus, seemingly unlawful. Accordingly, while racial identity is not a protected class, it is likely of no significance because ultimately it would boil down to just race.
In any event, racial identity is a new term that will need to be monitored. As noted, the existing laws protect against discrimination based on race – but if somebody can simply choose their race in order to manufacturer a discrimination lawsuit, there could be a profound and unintended impact on the nature of all race and discrimination lawsuits.
Finally, these types of news stories (e.g. Dolezal and Jenner) may have another unintended effect in the workplace. Some employees may have strong feelings about race and gender identity and openly discuss them. As such, it is conceivable that employees that disagree and/or are offended with another employee’s strong feelings about race or gender could result in an employment lawsuit for a hostile work environment.
Undoubtedly, from a legal perspective these issues are going to be nuanced, fact specific, and legally complicated. As such, employers will want to stay advised of legal developments and take any workplace issue and/or conversation regarding race, sex, or “identity” seriously.
This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.