What Does it Mean to Be “Black?”: Anti-Discrimination Law and the Intersection of Race and National Origin

by Briana James, Associate Member, University of Cincinnati Law Review Vol. 95

I. Introduction

“I’m dark brown, dark skin, light skin, beige, fluorescent beige…I’m black.”¹

The Black experience is “integral to constitutional interpretation,” and diversity, ranging from the pop culture influences of Black Americans to the rich cultural roots of Black Africans.² Blackness in America reflects exclusion and transformation.³ The diversity of Black people in the United States and their role as “unrecognized constitutional interpreters,” has sparked impactful constitutional critique and analysis.⁴ “Black” is a broad legal category that transcends nationality, ethnicity, citizenship, education, and income. However, despite the diversity of the Black community, the term “Black” in a legal context fails to truly represent the many identities that fall within this category. The Supreme Court’s decision in Saint Francis College v. Al-Khazraji illustrates how legal definitions of race can encompass discrimination based on national origin and ethnic characteristics, providing a foundation for understanding how Black immigrants’ experiences can be overlooked when race and national origin are treated as separate categories.⁵

This Post analyzes how treating “Black” as a broad legal category can obscure the discrimination Black immigrants face and limit their protection under United States anti-discrimination laws. Part II examines the foundational legal protections for Black Americans and immigrants through the lens of popular films. Part III examines how separating race and national origin limits Black immigrants’ protections and forces them to prioritize one identity over another. Finally, this Post proposes that courts consider the full context of an individual’s identity when evaluating discrimination claims, recognizing how race and national origin may intersect rather than treating these identities as separate categories.

II. Background

A. More than a Monolith: What the Law Says

1. Title VII, the EEOC, and Section 1981

United States anti-discrimination law separates race and national origin.⁶ Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex, and national origin.⁷ The Equal Employment Opportunity Commission (“EEOC”) recognizes that “multiple protected bases of discrimination can be raised by the same set of facts” and that stereotypes and biases can overlap across protected categories.⁸ The EEOC also acknowledges that “certain protected bases overlap considerably.”⁹ Section 1981, which originated from the Civil Rights Act of 1866, guarantees the equal right “to make and enforce contracts.”¹⁰ It also prohibits intentional racial discrimination, including discrimination based on ancestry or ethnic characteristics.¹¹ As a result of these convoluted laws, courts struggle to distinguish race from national origin.¹²

2. The Complexity of Defining what is “Black”

Citizenship can be racial in itself, as it is used to identify the racial default—white.¹³ Popular films show how Black individuals navigate race and national origin while preserving their cultural identities. The film, Coming to America, follows an African prince from the fictional nation of Zamunda who travels to Queens, New York.¹⁴ Prince Akeem represents an experience of many Black immigrants: being Black does not erase their ties to their country of origin.¹⁵ Akeem retains his cultural identity while navigating being racialized as Black in the United States, demonstrating how race and national origin intersect.¹⁶ This balance between retaining national identity and navigating racialization reflects the selective assimilation that Black immigrants rely on for self-preservation.¹⁷

Similarly, the Marvel Comics film Black Panther explores tensions between Black immigrants and Black Americans.¹⁸ T’Challa, Black Panther and the king of the fictional African nation of Wakanda, and Erik Killmonger, from Oakland, California transcend the blanket term “Black” through their distinct national origins, cultural experiences, and relationships to ancestry.¹⁹ Killmonger embodies some Black immigrants’ view of Black Americans as “spoiled.”²⁰ By contrast, the horror film Sinners offers further insight into the distinct experiences of Black Americans.²¹ Sinners shows how Black identity reflects Black Americans’ historical, geographic, and cultural experiences.²² Sinners features a powerful scene in which generations of Black musical and artistic expression converge creating “a sonic remix of the past with the present.”²³ African heritage and Black American identity intersect but remain distinct, reflecting Black identity’s diversity.²⁴

3. Judicial Recognition of the Overlap Between Race and National Origin

Although the law distinguishes between race and national origin, three cases illustrate how the two categories can overlap in discrimination claims. In Saint Francis College v. Al-Khazraji, an Iraq-born United States citizen alleged that the college denied him tenure because of his race, religion, and national origin.²⁵ The Supreme Court held that racial discrimination under Section 1981 includes discrimination based on ancestry or ethnic characteristics, even when the group is classified as “Caucasian.”²⁶ Given the professor’s Arab ancestry, he could pursue his Section 1981 claim.²⁷

The distinction between citizenship and national origin arose in Espinoza v. Farah Manufacturing Co., where a Mexican immigrant alleged national origin discrimination after being denied employment because of her Mexican citizenship.²⁸ The Court held that citizenship requirements do not automatically constitute national origin discrimination, but recognized that citizenship discrimination could, in some circumstances, amount to national origin discrimination.²⁹

The overlap between race and national origin was further recognized in Deravin v. Kerik, where a Black man alleged that Irish-American employees received preferential treatment when he was denied a promotion.³⁰ The Second Circuit recognized that “national origin and race discrimination may overlap,” allowing his allegations to support both claims.³¹

B. The Intersection of Race and Natural Origin When Black in the United States

1. Wilkins v. Swinton Home Care, LLC

In Wilkins v. Swinton Home Care, LLC, a Jamaican woman brought claims under Title VII and Section 1981 against her former employer.³² She alleged that she was terminated for her national origin while non-Jamaican coworkers were not punished for similar conduct.³³ Regarding her Title VII claim, the District Court of Maryland found that her claim sufficiently alleged national origin discrimination because she did not need to show that her national origin was the sole reason for her termination, only that it was a “motivating factor.”³⁴ However, the district court dismissed her Section 1981 claim as she did not sufficiently allege that, “but-for” her Jamaican ancestry, she would not have been terminated.³⁵ The plaintiff was terminated for alleged violations of COVID-19 protocols and other workplace conduct as cause for her termination.³⁶ Although the plaintiff alleged that non-Jamaican coworkers were not reprimanded for similar conduct, the district court concluded that her allegations did not support a reasonable inference that her Jamaican ancestry was the but-for cause of her termination.³⁷ The district court thus distinguished between allegations sufficient to support an inference that national origin was a motivating factor under Title VII and allegations sufficient to establish but-for causation under Section 1981.³⁸ However, the court did not specify what facts would suffice to satisfy this higher standard.³⁹

2. Ndondji v. InterPark Inc.

In Ndondji v. InterPark Inc. a Black, Angolan man alleged that his employer wrongfully terminated him because of his national origin under Section 1981, Title VII and the D.C. Office of Human Rights (“DCOHR”).⁴⁰ Relying on Al-Khazraji, the United States District Court for the District of Columbia recognized that Section 1981 prohibits intentional racial discrimination based on ancestry or ethnic characteristics.⁴¹ However, “with all reasonable inferences drawn in his favor” the plaintiff’s allegations focused on differential treatment between foreign nationals and Americans, rather than discrimination based on race or ancestry, and therefore did not support a racial discrimination claim under Section 1981.⁴² Separately, the district court analyzed his Title VII claims, which prohibit discrimination based on race and national origin, deeming it “an adverse employment action.”⁴³ Although the court recognized his claim, his allegations focused on his treatment as a foreign national rather than as a Black man.⁴⁴

III. Discussion

A. Does the Law See a Monolith?

Although anti-discrimination law generally separates race and national origin, the Supreme Court in Al-Khazraji and the Second Circuit in Deravin recognized that the categories can overlap.⁴⁵ In Al-Khazraji, the Court acknowledged that ancestry and ethnic characteristics inform racial discrimination, and in Deravin, the circuit court found that allegations of preferential treatment for Irish-American employees over a Black employee could suggest both race and national-origin discrimination.⁴⁶ Yet, in cases such as Ndondji, courts have distinguished discrimination based on foreign-national status from discrimination based on race or ancestry.⁴⁷ This distinction matters for Black immigrants, 56% of whom reported experiencing at least one form of workplace discrimination according to the Kaiser Family Foundation, an independent source of health policy research and analysis.⁴⁸

Black immigrants are racialized as Black while simultaneously being othered as an “alien.” Coming to America illustrates how a person can retain their national and cultural identity while navigating race in the United States.⁴⁹ Similarly, Black Panther highlights the diversity of Black identity through Wakanda’s distinct national and cultural identity.⁵⁰ Sinners further supports this point by illustrating how Black identity is shaped by historical and social context.⁵¹ These examples challenge the assumption that Blackness is a monolithic category disconnected from national origin or ancestry.

Title VII, the EEOC, and Section 1981 provide tools for addressing overlapping discrimination, however, courts must determine when the circumstances require considering these categories together.⁵² Despite the ability to bring overlapping claims, anti-discrimination law fails to account for the intersection of anti-blackness and perceived foreignness. Black immigrants experience discrimination not only because they are perceived as not “American enough,” but also because their perceived foreignness is shaped by them being racialized as Black. An immigrant from Angola or Jamaica, for example, may face discrimination involving both race and national origin. Although Black immigrants tend to identify by national origin first rather than by race, the discrimination they face is a compounding of both categories and if society engages in such intersectional discrimination, there should at least be intersectional protections.⁵³

B. What is Lost When the Law Uses Broad Categories?

In Wilkins, the Maryland District Court allowed the plaintiff’s Title VII national origin discrimination claim to proceed but dismissed her Section 1981 claim because she had not adequately alleged that her Jamaican ancestry was a but-for cause of her termination.⁵⁴ The court reasoned that other factors could have contributed to the termination.⁵⁵ Although the court did not decide whether the alleged conduct constituted racial discrimination under Section 1981, its analysis illustrates the challenge of pursuing claims when different aspects of identity are evaluated separately.

Black immigrants may be forced to frame discrimination primarily in terms of national origin even when racial bias also contributes to their treatment. Discrimination against someone who is Arab, Mexican, Jamaican, or Angolan may involve racial assumptions, particularly when their “alien” status is shaped by their non-whiteness. The term “Black” must account for the diversity of blackness, including national origin, ancestry, citizenship status, and experiences of systemic oppression. Ignoring these intersections may undermine the protections under Title VII and Section 1981. Courts must consider how race and national origin relate to the alleged discriminatory act. Treating these categories as entirely separate risks denying Black immigrants a meaningful assessment of their claims. When courts treat race and national origin as separate categories, they are overlooking how these identities intersect in the Black immigrant experience. Courts should adopt a holistic approach by considering whether race, ancestry, and national origin jointly contribute to the alleged discrimination. This approach would recognize overlapping biases while preserving each statute’s distinct requirements.

IV. Conclusion

The Black diaspora encompasses diverse national, cultural, and historical experiences reflected in films such as Coming to America, Black Panther, and Sinners. Yet anti-discrimination law continues to strip these complex and intersecting identities into broad categories. As Al-Khazraji and Deravin demonstrate, these categories may overlap when discrimination involves ancestry or ethnic characteristics. At the same time, cases involving Black immigrant plaintiffs illustrate the challenges of obtaining legal protection when the alleged discrimination implicates multiple aspects of identity. Courts should consider the full context of these claims while preserving each statute’s distinct requirements. If not, it will be up to courts to define what is “Black” and to continue to invalidate how national origin and race are more compounding forces than neat separate categories. Identity is multifaceted, meaning no one should be defined by one trait. By failing to account for this nuance, courts allow white Americans to be individuals while Black immigrants and their rights are whittled down into the monolithic term, “Black.”

Cover Photo by E. Diop on Unsplash

Author

Briana James

Briana James is a 2L student from Brooklyn, New York. She is a first-generation law student and a Double Bearcat. She completed her Bachelors degree in Political Science at the University of Cincinnati where she has worked in research and scholarly writing positions. In addition to Law Review, Briana is an Ohio Innocence Project Litigation Fellow, the Treasurer of the Black Law Student Association, and a Student Legal Education Committee (SLEC) Representative. In her free time, she enjoys gaming, reading, dancing, creative writing, traveling, and spontaneous hangouts with her loved ones. The practice areas that interest her are civil rights litigation, criminal law, administrative law, and appellate practice.

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