In recent years our federal courts have taken steps to address racial discrimination by emphasizing what has been called colorblindness––the idea that our laws should achieve racial equality by eliminating racial categories. While this catchall solution addresses a majority of racial discrimination claims, it fails to properly address misperceived racial discrimination. In cases involving misperceived race, an individual claims that he or she has been discriminated against in some way based on the racial identity that others have imputed onto her, despite her identifying as a different race. Misperceived race cases and how courts define race has produced conflicting outcomes across different areas of law.
Issues of misperceived race have been seen predominantly in Title VII employment discrimination cases, and federal courts are currently split on how to handle this unique issue. A majority of the federal courts address misperceived race in employment discrimination by attempting to identify the plaintiff’s “actual race.” If that “actual” racial identity does not match with the discriminators’ perception of the plaintiff’s race, then courts find there was no discrimination under Title VII. These courts may be using “actual race” because Title VII lacks statutory language protecting against discrimination of perceived traits. In contrast, a minority of federal courts have viewed discrimination of perceived race as a form of discrimination based on race, and therefore is protected by Title VII.
While the majority of federal courts using the “actual race” standard have good reasons for doing so, it is important to note that their reasoning comes into direct conflict with how immigration law defines race in asylum hearings. In asylum hearings, an asylum-seeker must show that she has faced persecution in her country of origin or has a well-founded fear of future persecution upon return to her country of origin. This persecution must be based on at least one of five nexus factors: race, religion, nationality, membership in a particular social group, and political opinion. While neither the Board of Immigration Appeals (BIA) nor any federal circuit courts have specifically found that persecution based on misperceived race falls within the nexus factors required to be eligible for asylum, case law strongly implies it is included. In 1996, the BIA decided in In Re S-P- that “[p]ersecution for ‘imputed’ grounds (e.g., where one is erroneously thought to hold particular political opinions or mistakenly believed to be a member of a religious sect) can satisfy the ‘refugee’ definition.” Because courts have not reviewed the issue of persecution based on imputed grounds since In Re S-P-, there has been no official ruling expanding persecution for imputed grounds to race. However, it is important to note that federal circuit courts have expanded In Re S-P- to encompass the other nexus factors of religion, nationality, membership in a particular social group, and political opinion. Based on this, it is only a matter of time that persecution based on imputed race is accepted as plausible grounds for asylum under immigration law.
When comparing these perspectives of race, the potential conflicting interpretations of race become apparent. A majority of jurisdictions look to an individual’s “actual race” when considering employment discrimination, whereas the BIA and federal circuit courts are moving toward recognizing perceived race in asylum hearings. If the BIA does extend the imputed grounds to race, the rulings may produce the strange result that asylum hearings offer broader protection to individuals entering the U.S. than employment discrimination offers to U.S. citizens from actions occurring within the U.S. Ultimately, if this conflict occurs, it should be addressed through either the judiciary or legislature in a manner that creates more consistency between immigration and employment law.