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By Root 824 0

to cover in the name of white supremacy. We would need to ask American for the reason behind its covering demand, and to evaluate the credibility of its answer. What’s frustrating about the Rogers opinion, and what’s flawed about the Title VII jurisprudence generally, is that it does not force American to answer that question. Instead, the court only looked at Rogers’s capacity to conform. Once the court determined she could assimilate, it assumed she should do so, without regard to the legitimacy of the demand for assimilation.

A reader attentive to dates could fairly ask if I am making too much of a case decided in 1981 and a grooming manual written in 1988. Today, it may seem racial covering demands are no longer made. Black style, Asian cuisine, and Latin music are all staples of American culture. If the application essays to Yale Law School are any indication, applicants feel pressure to flaunt rather than to cover their ethnic diversity. Such pressure to “reverse cover” may be problematic in its own right. But pressure to “act white” may seem a thing of the past.

As in the gay context, however, we should not confuse selective appropriation of minority cultures with general acceptance. The fact that cases like Rogers are still on the books means employers can still make such demands for racial assimilation with impunity. And they do: the Molloy book came to my attention because an employee sued his employer in 2003 for assigning the manual to him. Social science data also show that racial minorities perceived to be flaunters continue to encounter discrimination. Economics professors Marianne Bertrand and Sendhil Mullainathan conducted a study in 2002 in which they sent out résumés that were identical except for the names at the top. Half the names were distinctly “white-sounding” names like Emily Walsh or Greg Baker, while the other half were distinctly “African-American-sounding” names like Lakisha Washington or Jamal Jones. The “white” résumés received 50 percent more callbacks from employers than the “African-American” ones. It may be that employers were discriminating against all supposed African-Americans rather than only African-Americans who flaunted. But this just means passing and covering blur into each other here as well.

This bias toward assimilation also surfaces in Title VII claims based on language. An increasing number of employers have English-only rules that require employees to speak English in the workplace. These policies have been challenged as discrimination on the basis of national origin. Predictably, monolinguals sometimes win their cases, while bilinguals almost invariably lose. As one court put it, “To a person who speaks only one tongue … language might well be an immutable characteristic like skin color, sex or place of birth. However, the language a person who is multilingual elects to speak at a particular time is by definition a matter of choice.” Because bilingual employees can choose to speak English, they must.

When I teach these language cases, my students generally feel the stakes are higher on both sides than in the grooming cases. Language is widely recognized as an important aspect of ethnic identity. As sociolinguist Joshua Fishman observes, “since language is the prime symbol system to begin with and since it is commonly relied upon … to enact, celebrate and ‘call forth’ all ethnic activity, the likelihood that it will be recognized and singled out as symbolic of ethnicity is great indeed.” From the employer’s perspective, however, the reasons to force employees to speak English—such as promoting better service to customers or workplace harmony—also seem plausible.

Again, I am not saying employees should always win these cases. The ultimate determination should balance the interests of the individual against the interests of the employer. Frequently, however, the courts scrutinize only the employee, asking whether the burdened trait is mutable. An affirmative answer often formally or practically ends the inquiry. But stopping there transforms the descriptive claim that