Document Type

Article

Publication Title

Cornell Law Review

Abstract

The basic concepts of signaling and identity performance are familiar to most. This Article explores how those incentives and pressures to signal and work one's identity shape the workplace behavior and experiences of outsider groups, such as women and minorities. We argue that, because members of these groups are often likely to perceive themselves as subject to negative stereotypes, they are also likely to feel the need to do significant amounts of "extra" identity work to counter those stereotypes. Depending on the context, that extra work may not only result in significant opportunity costs, but may also entail a high level of risk. The primary project of this Article is to flesh out the kinds of work outsiders often feel pressured to do because of negative assumptions about their identities. We argue that both the nature of the work and the pressure to do it, the "working identity" phenomenon, is a form of employment discrimination. Heretofore, antidiscrimination law has not identified, let alone addressed, this problem. Absent from antidiscrimination law is the notion that outsiders do not passively accept workplace discrimination and stereotyping; that they employ a variety of strategies to counteract both. These strategies function as coping mechanisms. We categorize them to illustrate the specific ways in which they burden outsider employees. Central to this Article is the claim that, to fully appreciate workplace discrimination, one has to examine and raise questions about not only the employer's conduct-whether it is legitimate for employers to behave in ways that adversely affect outsider employees-but the employee's conduct as well-whether it is legitimate for employees to be pressured to behave in particular ways to avoid discrimination. Current antidiscrimination regimes focus almost entirely on the employer. Lost in this focus are the costs borne by victims who do identity work to prevent employment discrimination and preempt stereotyping. Further, to the extent that antidiscrimination law ignores identity work, it will not be able to address "racial conduct" discrimination. Racial conduct discrimination derives, not simply from the fact that an employee is, for example, phenotypically Asian American (i.e., her racial status) but also from how she performs her Asian- American identity in the workplace (i.e., her racial conduct).

First Page

1259

Volume

85

Publication Date

2000

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