I grew up believing there to be certain discrete races in the world – White, Black, Hispanic, Asian, Indigenous people of the United States and Indigenous people of other parts of the world. I understood those to be immutable, something we were born into, and beyond question. I therefore never thought twice about it – until much more recently.
Race Is Not Immutable
As I have discussed in previous blog posts, I have since come to learn that “race” is a “social construct,” meaning that the categories I referenced above are simply a convenient legal fiction defined by our government. Racial categories might be defined differently by governments or societies in other parts of the world, and they actually have been defined quite differently in our own legal history in this country.
When considering affirmative action in the context of college admissions, the U.S. Supreme Court held in Students for Fair Admissions, Inc. v. Harvard College (June 2023), that the racial categories employed by the defendant universities were both too broad in some respects and too narrow in others. The Court was calling out a historical truth that was a novel concept for me, relative to the time period in which I was born (after the Civil Rights Act of 1964, aka Title VII) and my lack of intellectual curiosity as to how and why we employed the racial categories that we had.
What Then Is Race?
Since this summer, I have been asking employees in some of the workplace trainings I conduct how they define race. Some respond with reference to differing shades of skin color. Some reference facial features. Most often they tell me that race relates to our ethnicity, ancestry, or historic family origin.
Looking at the racial categories used by the federal government, those responses are all correct to varying degrees. And they give us pause to recognize that race and racial categories are pretty squishy, subject to varying perceptions, and not immutable. How we classify ourselves, and how we classify others, depends on appearance, associations, and our lived experiences.
Federal Classifications Have Shifted
Given my own evolution in understanding, I found it fascinating when the federal Office of Management and Budget (OMB) announced last March that it had updated its Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity. These are the standards for racial classification used by the federal government, including for example on the U.S. Census and when reporting a claim of discrimination under federal law.
Last updated in 1997, the result was the product of several years’ work and thus was initiated independent of the Students for Fair Admissions decision. And yet it appears to have recognized and developed solutions for the same flaws in our existing racial categories that were recognized by the Supreme Court in that case.
Get Used to the Acronym MENA
The Supreme Court observed in Students for Fair Admissions that we had no defined racial category for individuals from the Middle East. Historically they often were classified as Oriental (what we now call Asian) but they generally bore little physical resemblance to people from nations like China, Japan, and Korea. More recently they were classified as White, but that denomination often did not align with their actual skin color and was not universally accepted. Now, these individuals may be classified as Middle Eastern North African, or “MENA” for short.
Similarly, OMB had previously denominated “Hispanic” or “Latino” to be an ethnicity and not a racial category. Thus, for example, on the 2020 U.S. Census, individuals were asked two separate questions. First, they were asked to choose among the following racial categories: American Indian or Alaska Native, Asian, Black or African American, Native Hawaiian or Pacific Islander, White, or Two or More. Second, they were asked the question: Are you Hispanic or Latino – yes or no?
Going forward, race and ethnicity are to be combined in a single category, expanding the list of options to eight: American Indian or Alaska Native, Asian, Black or African American, Native Hawaiian or Pacific Islander, White, Hispanic or Latino, Middle Eastern or North African, and Two or More.
Labels May Be Lacking
One of the other critiques the Court leveled at the college admissions process was that the category of Asian was “plainly overbroad” in that it did not distinguish even among those from South Asia as contrasted with East Asia, and “Hispanic” was an arbitrary or undefined term given its varied meaning over history. At the time of the Court’s decision, I had asserted in a blog article that the Court was overlooking the guidance that the Equal Employment Opportunity Commission (EEOC) and other government agencies have provided on who to include in the varied racial categories.
Having looked into this subject far more intensely over the past nearly two years, the critiques articulated by the Supreme Court regarding those two categories could similarly be extended to every other racial classification. They all are broad, include individuals with varied ancestral languages, cultures and traditions, and have been defined differently over the course of history.
With its recent changes OMB recognized that deficiency as well and now invites the collection of more detailed responses to augment its minimum racial categories. Individuals are to be subdivided into seven or more ethnic groups within each racial category. For example, those who identify as Asian can then clarify if they are Chinese, Asian Indian, Filipino, Vietnamese, Korean, Japanese, or another group. When racial data is being reported based on the observation of the reporter and not by self-identification or proxy, OMB advises that only the minimum racial categories should be used.
Why This Matters
More than 60 years after Title VII first prohibited discrimination in employment based on race, color, religion, national origin, and sex, we continue to debate what those terms mean. Questions of race can be fraught, particularly in this country. As we pivot from the peak of protests by the Black Lives Matter movement in the summer of 2020, to the Supreme Court’s 2023 decision against affirmative action in college admissions, to the waves of antisemitism following October 7, 2024, to the current push by the Trump administration to eliminate most affirmative action initiatives and prohibit “illegal” discrimination, employers need to recognize that questions of race discrimination are multi-faceted. Employee concerns that they are being singled out or treated less favorably need to be evaluated through a broader lens of race, both to assure appropriate behavior under the employer’s policies, and to mitigate the risk of a plaintiff’s attorney making the argument of race discrimination more cogently in court.
By Tracey I. Levy
