by Jay Wolman
The Americans with Disabilities Act protects three categories of individuals: those presently disabled, those previously disabled, and those perceived to be disabled. The latter is deemed “regarded as”; it does not require the member of the protected class to actually have or have had a physical or mental impairment that substantially limits a major life activity. This is the only statute explicitly providing for “regarded as” protection. However, caselaw seems to be filling the gaps in other laws.
In Macy v Holder, the EEOC explicitly found that discrimination against transgendered individuals is unlawful under Title VII, discussing the difference between sex and gender. It also reviewed cases finding that failure to conform to gender stereotype is actionable discrimination. Of note, Title VII does not speak to gender.
Recently, in EEOC v Abercrombie & Fitch, the Supreme Court ruled that where an employer perceived that an employee might require a religious accommodation, even if that perception is wrong, and discriminates against the employee on the basis of that perception, such discrimination is unlawful under Title VII. In that case, as you may recall, a Muslim job applicant was perceived to potentially need a modification of the dress policy, even though the employer disavowed actual knowledge of the need. For all intents and purposes, it is now deemed unlawful to discriminate on the basis of being regarded as having a specific religious belief if the motive is then to deny a reasonable accommodation to that belief.
Taking it a further step is the case of Rachel Dolezal who regards herself as African American. Let’s assume she is actually Caucasian. If she applies for a job and is denied because she is perceived to be African American, does she have a claim? She has not been discriminated against on the basis of her actual race. However, she might have a claim based on color, as Title VII does cover both “race” and “color”. But, she could lose if the employer replaces her with another bronzed or tanned Caucasian–“color” might not be sufficient. Yet, expanding on Macy and cases cited therein, Ms. Dolezal may be viewed as not conforming to racial stereotype. Thus, a white person, regarded as being black, might have an actionable claim. And, if so, others may have actionable claims for not being white, black, asian, hispanic, or native american “enough“.