Shades of Brown: The Law of Skin Color

Shades of Brown: The Law of Skin Color

Duke Law Journal
Volume 49, Number 6 (April 2000)
pages 1487-1557

Trina Jones, Professor of Law
Duke University

Because antidiscrimination efforts have focused primarily on race, courts have largely ignored discrimination within racial classifications on the basis of skin color. In this Article, Professor Jones brings light to this area by examining the historical and contemporary significance of skin color in the United States. She argues that discrimination based on skin color, or colorism, is a present reality and predicts that this form of discrimination will assume increasing significance in the future as current understandings of race and racial classifications disintegrate. She maintains that the legal system must develop a firm understanding of colorism in order for the quest for equality of opportunity to succeed.


    • A. Before the Civil War: 1607-1861
    • B. After the Civil War: 1865-2000
    • C. The Social Psychology of Contemporary Black-White Colorism
    • A. Statutory Support for Color Claims
    • B. Substantive Content of Color Claims
    • C. Race, Color, Mixed Racial Identity and Employment Discrimination Law
    • D. Colorism and the Quest for Equality of Opportunity


On the Saturday evening following my mother’s recent marriage, old friends and new gathered at a local restaurant to celebrate the occasion. While standing in the buffet line, I turned to introduce my new step-niece, Aaliyah (age 4), to the son of a family friend, LaShaun (age 5). Immediately following the introduction, LaShaun, who is clearly outgoing and charismatic, looked up at me with the innocent honesty of a child and said, “I know another Aaliyah at my school, but she’s brown.”

The first thing LaShaun, whose skin is a rich Michael Jordan chocolate, noticed about Aaliyah was her light golden brown skin. LaShaun did not create or invent these differences. Without deliberate or conscious design, his statement merely reflects the fact that he operates in a social context where people learn early on that color is significant. Although some people may claim that color differences [*pg 1489] within racial groups are without meaning and that people do not notice or care about fine differences in skin pigmentation, the observations of a five-year-old child belie these statements. And so does history.

This Article examines the prejudicial treatment of individuals falling within the same racial group on the basis of skin color in the context of antidiscrimination law. In a 1982 essay, Alice Walker called this prejudicial treatment “colorism.” Although this terminology appears to be relatively new, colorism is not a recent invention. In the United States, this form of discrimination dates back at least as far as the colonial era. Yet, notwithstanding its long existence, colorism is often overshadowed by, or subsumed within, racism. As a result, courts are either unaware of the practice or tend to minimize its importance.  This state of affairs is unfortunate because, as I demonstrate in this Article, color differences are still frequently used as a basis for discrimination independently of racial categorization.

The analysis proceeds in three parts. Part I distinguishes colorism from racism. Because the ultimate result of race-mixing was the creation of tone or hue variations within racial groups, Part II explores the history of miscegenation in this country in order to demonstrate how society has used skin color to demarcate lines between racial groups and to determine the relative position and treatment of individuals within racial categories. This history illuminates contemporary discrimination on the basis of color. Part III examines the judicial response to contemporary claims based on color and explains why courts can and should permit color claims in the context of antidiscrimination law. Part III also investigates the suggestion that racial classification may become increasingly difficult in the future as the acceptability of the one-drop rule declines and as race-mixing increases. Assuming that there is merit to this suggestion, Part III probes whether legal recognition of claims based upon skin color will provide suitable redress for discrimination against persons who are neither visibly White nor visibly Black.

My hope is that this Article will assist in the development of a more nuanced understanding of the intricate ways in which people discriminate in this country. More specifically, by engaging in this investigation, I seek to prevent the law from becoming a source of injustice by showing how progress towards equality of opportunity may be overstated if colorism is ignored. Briefly, in the aftermath of the civil rights movement, employers have hired increasing numbers of Blacks into positions not previously available to them. The increasing number of Blacks in these positions suggests racial progress. Studies show, however, that Blacks in positions of prominence and authority tend to be lighter-skinned. Thus, some employers may be hiring only a subset of the Black population, a subset selected, in part, based on skin color. Because some Blacks are being denied access to employment opportunities due to colorism, the appearance of progress is more limited than we might assume. Legal recognition of color claims is one way to begin redressing this situation.

It is important to note that the analysis contained herein focuses on color dynamics among Black Americans. Although some scholars have criticized the tendency to analyze racial issues in terms of a Black/White dichotomy, I have chosen to concentrate on the Black community in order to limit the magnitude of this project without sacrificing its utility. In addition, this focus allows me to probe more directly the peculiar symbolism of black and white as colors. This symbolism suggests that although colorism is an important element of racism, it is equally its own distinct phenomenon. Finally, although I do not wish to endorse the reduction of race relations to a Black/White paradigm, I have chosen to focus on the dynamics of the racial group with which I am most familiar. I recognize that similar issues concerning skin color exist within Native American, Asian-American, and Latino communities, and believe that issues peculiar to those communities merit detailed study. Although such analysis is beyond the scope of this initial project, I hope this Article will nonetheless be of assistance to scholars in future investigations involving questions specific to other racial groups…

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