Can You Prove You're a Minority?
Can You Prove You're a Minority? by Tom Brune
Seattle Times staff reporter
Elizabeth Lake says she has always thought of herself as a Native American.
So two years ago, when filling out a state-government job application that asked her race or culture, she didn't think twice about checking the box labeled "American Indian."
She eventually landed a job with the Department of Social and Health Services. But within the first week, a supervisor pulled Lake out of a training session.
"She said she could not visibly determine my race," recalls Lake, who has long, dark hair, dark eyes and a light complexion.
The supervisor told Lake she had been hired to meet an affirmative-action goal for American Indians, and that if she could not prove her race, the job offer would be withdrawn.
The next day, Lake brought in documents showing her great-grandfather was a member of the Chickasaw Nation.
But her supervisors told her she needed proof that she was a member of a tribe - and that she had a month to produce it.
She didn't. She lost her job.
Lake has since learned she is 1/128th Chickasaw Indian, enough for her to get a tribal-affiliation card, sufficient documentation for the state.
Now she's suing DSHS.
As her case illustrates, running and policing affirmative-action policies can be tricky.
Among the most challenging and uncomfortable tasks is verifying the race and ethnicity of applicants who get jobs through affirmative action.
Consider the questions a supervisor faces: When do you challenge or accept an employee's race or ethnicity? What proof do you accept? What do you do when you find out people aren't who they say they are?
"It is a very difficult and sensitive thing to do," acknowledged Roy Standifer, administrator of the Workforce Diversity Program of the state's Department of Personnel. "For example, how do you prove you're Hispanic?"
Such vexing questions are being raised in the national debate over the future of affirmative action - a debate now centered on Washington state, where voters face a decision this November on a ballot measure known as Initiative 200.
I-200 has the stated goal of ending preferences based on race, ethnicity and gender in state and local government employment, contracting and public education. If passed, it would end affirmative action as it is now practiced in state and local public agencies.
Rep. Scott Smith, R-Graham, co-chairman of the campaign for I-200, said the state wouldn't have to worry about verifying applicants' backgrounds if it didn't use preferences based on race or ethnicity.
"It's pitting one race against another," he said.
Accusations of `racial fraud'
State administrators are divided on the policy.
Supporters of the practice say it may be awkward, but it's necessary. They frequently cite the case of the Malone twins of Massachusetts.
In 1975, Philip and Paul Malone took Boston's civil-service exam to become firefighters, but weren't hired because their scores were too low. Two years later, after a court ordered Boston to hire more minority firefighters, the Malones again took the exam. Their scores remained the same, but this time they were hired - because they had switched their racial classification from white to black.
No one challenged them until 1988, when both applied for promotion. Reviewing their applications, a commissioner who knew them personally was surprised to see them identified as African Americans.
When questioned, the twins claimed that between 1975 and 1977, they learned their great-grandmother was a light-skinned black woman. The department rejected the claim and fired them for "racial fraud."
Black and Hispanic leaders blasted the Boston Fire Department, and one charged that as many as 60 firefighters had gotten jobs through racial fraud. The city investigated 11 firefighters who said they were Hispanic, and two of them resigned.
Most public agencies rely on applicants to be honest and accurate in identifying themselves, but all fear such incidents.
State asking questions
Washington state's six-page job application asks job-seekers to volunteer their race or culture on a page titled "Affirmative Action Information."
The page has a series of boxes an applicant can check. At the bottom, it defines the choices: American Indian or Alaskan Native, Asian or Pacific Islander, Black/African American, Hispanic, White/Caucasian, person with disabilities, disabled veteran and Vietnam-era veteran.
Except for the category of white, those seven - as well as women and people age 40 and over - make up the groups designated to benefit from affirmative-action policies.
The form lists definitions of each category, but says nothing about requiring applicants to prove who they say they are.
Most departments accept whatever race or culture the applicant checks. But in the early 1990s, the state began surveying its employees to check the accuracy of its ethnic and racial headcount.
That survey was begun in part because the federal Americans with Disabilities Act changed the definition of disability, making it stricter than before. But it was also in response to criticism by Native-American leaders and the state Commission on Hispanic Affairs.
"The criticism was that individuals were putting themselves down as being Native American and Hispanic and were not," said Margarita Mendoza de Sugiyama, the top aide on affirmative action for Govs. Booth Gardner and Mike Lowry. "And I am sad to say it was true."
At the conclusion of the survey, the numbers on the race and ethnicity of state employees changed, and the biggest drops were in the number of Native Americans and people with disabilities.
The Department of Labor and Industries, for example, where Mendoza de Sugiyama now oversees diversity and affirmative action, surveyed 2,600 employees in 1994. In cases in which employees could not - or chose not to - prove they fit into one of the nine affirmative-action categories, the agency changed their classification. More than 10 percent of the employees were changed, most for claiming disabilities or veteran status.
About a quarter involved race:
-- Twenty-nine changed from Native American to Caucasian.
-- Nineteen changed from Asian American to Caucasian.
-- Nineteen changed from Hispanic to Caucasian.
-- Six changed from African American to Caucasian.
Unclear, though, was whether applicants had lied or simply balked at providing proof of their race. Of the six whose classification changed from black to white, Mendoza de Sugiyama said: "When the verification process began, they chose not to participate or not to provide the documentation."
Nonetheless, the survey discovered some who had clearly cheated. Some non-Hispanic women, for example, would marry a man with a Spanish surname, then claim to be Hispanic.
Although some of the cheaters had benefited from affirmative action, none lost their jobs, Mendoza de Sugiyama said: "Absolution was given to every employee."
Accurate numbers are crucial to the goals and timetables of affirmative-action programs.
That's why Mendoza de Sugiyama has argued for verification.
But Rita Cooper, of the Department of Parks and Recreation, thinks that puts another obstacle in the way of people who already face plenty.
"This is very much about people who are disenfranchised who now have to prove their membership in a disenfranchised group," she said.
Employees with multiracial backgrounds find it particularly hard to prove their race, said Cooper, who is herself multiracial. She feels the problems created by requiring verification outweigh the benefits of finding a few people who are lying about their backgrounds.
"I don't find a lot of people standing in line to say they're black."
Verification - a touchy process
The debate has never been resolved - and resurfaces at times, as it did this month at a meeting of state affirmative-action officers.
A subcommittee looking into the issue sent out basic guidelines, suggesting claims of race, ethnicity or gender should be accepted on the same basis as claims of education and experience.
"In the absence of contradictory information, the protected-group status claimed on an employment application should be accepted," the guidelines state.
But they also suggest that for job candidates getting a boost over others higher on the eligibility list to meet an affirmative-action goal, "greater scrutiny is appropriate."
The only state agency to require verification by every employee who could benefit from affirmative action is the Department of Labor and Industries. Mendoza de Sugiyama says she sits down with each new employee, pulls out his or her file and asks for documentation.
"It's been fascinating for me," she said. "It's not like we're all card-carrying members of something."
For some, the records needed are clear: a Vietnam-era veteran must produce a military-discharge form; a disabled veteran must show a letter from federal Veterans Affairs; a person with disabilities must show a note from a doctor.
For African Americans, Asian Americans and Hispanics, Standifer's guidelines are vague: "Birth certificate stating ethnicity, or other verifiable proof."
That standard poses problems. The state of Washington stopped putting race on birth certificates in 1968. Even though it added ethnicity as a category in 1988, that information also is confidential. To divulge that information, the Health Department requires a court order.
And for Hispanics, the standard is even more difficult, since that term describes not a race but a culture.
Mendoza de Sugiyama said she also accepts naturalization papers, genealogy records, military papers, marriage certificates, even family Bibles. If a person has none of these documents, he or she can swear to circumstances and culture in a notarized affidavit.
Native-American status
The strictest and most specific documentation is required for Native Americans - a tribal-affiliation card or a letter from a tribe.
That requirement is based on the complex history of the issue of Native-American identity, according to James Nason, a University of Washington anthropology professor and curator of the Burke Museum.
At the turn of the century, the U.S. government began using the "blood quantum" rule - defining an Indian as someone who has at least one-quarter of his blood from one person from one tribe. For some federal services, that's still the official definition.
But long before Europeans arrived, the continent's 750 tribes already had their own rules of membership, many of which were based not only on birthright, but also on shared culture, behavior and participation, Nason said. Outsiders sometimes were adopted as members of the tribe. So affirmative action's litmus test for Native Americans has become the tribe's recognition that someone is a member.
Many people suddenly discover they had a great-grandparent who was a Native American, and they often call asking how they can claim benefits reserved for Indians, says Jennifer Scott, who directs the Governor's Office of Indian Affairs. She is suspicious of such revelations, and solidly supports affirmative action's litmus test of tribal recognition in one form or another.
Elizabeth Lake says that growing up in Thurston County, she and her family "just knew" they were part Native American.
She always stood up for Native Americans in class and among her schoolmates and friends, she said.
That's why she says she was stunned when her supervisor questioned her status and ultimately took away her job.
She filed a complaint with the state Human Rights Commission, an appeal with the state Personnel Board, and finally retained an attorney to file a federal lawsuit charging racial discrimination, invasion of privacy and emotional distress. She is seeking damages, but is unsure if she wants her job back.
Lake's claim meets skepticism from a surprisingly wide range of people, from state affirmative-action administrators to I-200 co-chair Smith, who said he is 1/32nd Cherokee but has never thought of himself as a Native American.
Lake is the only member of her family to reclaim that part of her heritage, and her attempts to reconnect that link and her lawsuit, her lawyer says, have been met with mixed emotions by her family.
But the incident has drawn Lake closer to the Chickasaw Nation, a 38,000-member tribe based in Ada, Okla.
Since losing her job, Lake, 22, has volunteered at a Head Start program for the Nisqually tribe, and has spent most of her free time researching her background, compiling genealogy charts and tracing her lineage.
"I don't want anybody to have to go through what I did," Lake said. "I think what they did was wrong, and it needs to be fixed. And I want my heritage back."
Return to the I-200
page.
Return to the Affirmative Action
and Diversity Page
Carl
Gutierrez-Jones
Department of English
University of California, Santa Barbara
e-mail: carlgj@humanitas.ucsb.edu