In contrast to the courts that openly struggle with fluid racial identities, others deal with the problem by merely assigning a category to a fluid identity individual in order to make the prima facie case analysis a simpler proposition. In cases out of Virginia, Texas, and Minnesota, courts were presented with claims brought by a mixed race plaintiff but gave scant if any attention to this complex identity, preferring to simply assign the plaintiff a category that allowed for easy application of the McDonnell Douglas protected class paradigm. In these cases, the courts typically noted that the plaintiffs identified themselves as “multiracial,” or “biracial,” and then proceeded to describe them simply as “black” or “African American” for the remainder of the opinion. This was the case even where the alleged discrimination consisted of harassing statements that seemed to have been directed specifically at the plaintiff’s mixed race status.
Leora F. Eisenstadt, “Fluid Identity Discrimination,” American Business Law Journal, Volume 52, Issue 4, Winter 2015, 817. http://dx.doi.org/10.1111/ablj.12056.
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