There is an old saying about the difficulties that arise from trying to change horses in the middle of a stream. An employee found that to be true in his claim of discrimination.
I am white… wait I changed my mind
Today people have the ability to choose what race, and gender, with which they wish to identify. Anyone remember the story of Rachel Dozier, who claimed to be African-American despite having no such actual heritage? Obviously claims such as this may cause problems for employers.
A police captain in Savannah, Georgia was of Swedish and Japanese heritage. He claimed on the appropriate EEO form that he was white. However, when passed over for promotion to major, losing out to two other white captains, he claimed discrimination saying that he had changed his status to Asian-American several years before. The problem was that he had not ever notified his employer of that fact.
The employee filed a discrimination suit. It was dismissed and finally ended up in the Eleventh Circuit Court of Appeals. There the court affirmed the dismissal noting that even though the captain now considered himself Asian-American he had not informed his employer, therefore the employer could not be found to be discriminatory about something they did not know.
The EEOC does allow employers to periodically resurvey employees allowing them to change their self-identification selections. You can find some guidance here on some of the issues involved.
Certainly in any discrimination suit you will want to know what the employee has claimed to be and whether or not that was known to the employer.
Everyone needs to be aware that there are difficulties associated with changing horses in the middle of stream.
Hat tip to Jonathan Crotty and Michael Vanesse of Parker Poe Adams & Bernstein for the inspiration.