Abstract
The rise of the mixed-race population and its implications for our society has received attention in current discourse and media coverage. Some see it as a portent of the postracial world to come; others see it as just another challenge to which antidiscrimination law must adjust. Despite this new attention, racial mixing is not a new phenomenon by any measure. What have changed are the methods of categorization. By realizing this fact, we can repudiate the claim that increased declarations of mixed-race identity signal a major shift and instead focus on readjusting outdated legal schemes that were predicated on old methods of monoracial categorization. This Comment addresses the conflict between new categorization methods for mixed race in data gathering as well as the noncognizable mixed-race- based claims in current Title VII doctrine. Mixed-race individuals face unique harms themselves, and Title VII’s refusal to acknowledge mixed race results in dismissal of claims. After addressing two similar proposals that do not go far enough to remedy harms, this Comment proposes taking the discretion of framing race from judges and placing it in the hands of plaintiffs. Under this Comment’s proposal, plaintiffs can frame race as they experience the discriminatory use of race—including the mixed- race classification—against them, while allowing employers to rebut the plaintiffs’ claimed race by showing that they perceived the plaintiffs’ race differently.
