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Publication Title

Washington University Global Studies Law Review

Abstract

Title VII of the Civil Rights Act of 1964 and the older civil rights statute 42 U.S.C. § 1981 prohibit discrimination based on “color,” but neither statute defines the term. A little more than fifteen years ago I argued that skin tone discrimination, whether intra-racial or inter-racial, constitutes a form of race-based discrimination that tends to disadvantage individuals with dark skin tones. With few exceptions, more recent discussions of this topic among legal scholars continue to focus almost exclusively on black Americans. Thus, this Article asks whether colorism among or between racialized groups impacts immigrants from South Asia and their American-born offspring in the same way studies suggest that skin tone discrimination adversely impacts black Americans and Latinos in the workplace.

In exploring this question, I examined fifty-one employment discrimination cases involving South Asians decided between 1981 and 2014. This Article also explores the difficulties South Asian plaintiffs face when raising a Title VII color employment discrimination claim. South Asian plaintiffs are more likely to use Title VII rather than the older Section 1981 law because the latter does not cover discrimination based on national origin and claims filed by South Asians sometimes conflate race and national origin claims.

The remaining article is divided into three sections. The first section briefly examines the influx of South Asians, specifically Asian Indians, in the United States since the mid-1960s. It also examines the colorism phenomena in India and the South Asian diaspora including the United States. The second section examines employment discrimination cases brought by South Asians, especially Asian Indians, and their invocation of skin tone in many of these cases. The final section of this article contains some suggestions for both litigators and judges involved in workplace discrimination cases brought by South Asians.

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