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Employee's Change in Racial Self-Identification Cannot Support Discrimination Claim if Employer Unaware of Change

    Client Alerts
  • October 05, 2015
In recent years, more Americans have begun identifying themselves as biracial or of mixed racial heritage. This shift has resulted in changes to census and other forms where people are asked to self-identify by race. In addition, some persons of mixed heritage may change their personal identification with one racial category over time. However, as recently pointed out by the Eleventh Circuit Court of Appeals, this change cannot form the basis for a race discrimination claim if unknown to the employer at the time the questioned decisions were made.

In Fagerstron v. City of Savannah, the plaintiff was a police captain of Swedish and Japanese heritage. When filling out forms used for affirmative action purposes, the plaintiff had identified himself as white. When passed over for promotion to major, the plaintiff sued, alleging that he had been discriminated against based on his race in favor of two white captains. The plaintiff said that he changed his self-identification to Asian-American several years previously.

In an unpublished opinion, the Eleventh Circuit affirmed dismissal of the claim, noting that even if the plaintiff now considers himself Asian, he never told his employer of this change. The police chief testified that he considered the plaintiff white and never had any information about his mixed heritage or change in racial identification. In the absence of evidence of such knowledge, the court concluded that the employer could not have discriminated on the basis of race.