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Nancy Leong, Identity Entrepreneurs, 104 Cal. L. Rev. ___ (forthcoming 2016), Available at SSRN.

Have you ever invoked an outsider aspect of your identity? Maybe, like many applicants in academia, you’ve discussed how you would contribute to the diversity of the institution you hope to join. Possibly, like Sarah Palin, you’ve found an occasion to emphasize the “unique perspective” of women; or like John Edwards and Rick Perry, you’ve highlighted your working class roots. Or, perhaps less likely, you’ve needed to revive your fan base and found that coming out as a sexual minority could be a good career move; or you’ve embarked on stardom in adult films and discovered Asian femininity is a great asset; or your celebrity as a rap artist includes not only race and gender, but also geographic credibility.

If so, Nancy Leong contends you are hardly the only “identity entrepreneur.” While Leong acknowledges the postmodern work on “performativity,” her conceptualization is Marxian and stresses the value of identity in our capitalist society underwritten by the rule of law. For Leong, being an identity entrepreneur is neither necessarily good nor bad. Entrepreneurs, she states, are increasingly respected and popular in America, even as to be “entrepreneurial” connotes a person who is “self-promoting, grasping, inauthentic, a climber.” For Leong, the term “appropriately reflects ambivalence about the practice of identity entrepreneurship.” It is a “complicated phenomenon with both positive and negative consequences.”

Identity Entrepreneurs builds on Leong’s highly regarded previous article Racial Capitalism. Here she expands the range of identities and focuses on how “outsiders” leverage their status. She argues that identity entrepreneurship does have negative consequences: it can reinforce in-group preferences, divide out-group members from each other, and perpetuate group subordination. On the positive side, she contends that identity entrepreneurship can have benefits: it can increase autonomy for individuals; advance material and symbolic gains for other out-group members; and facilitate progress including support for other out-group members. All in all, she says, “Identity entrepreneurs walk a fine line.”

Leong’s article makes provocative reading for anyone interested in how we — and others — “leverage” our various identities. But while I might be interested in a dinner discussion about whether certain movies starring certain performers reinforce harmful stereotypes, I’ll admit that I can find cultural criticism in legal scholarship unsatisfying. But Leong’s article does turn to the legal questions at hand and posits that legal doctrine and policy relating to identity entrepreneurship should be governed by the following principles:

First, doctrine and policy should respect individual agency.

Second, doctrine and policy should encourage informed decision-making—that is, choices about identity entrepreneurship should be made with an understanding of how those choices affect individuals, groups, and society.

And finally, doctrine and policy should be evaluated according to whether they ultimately promote social progress toward a world in which identity is not a commodity and identity entrepreneurship is therefore irrelevant.

She explores these rather abstract principles in the last section of the article with concrete examples in Title VII, rights of publicity and privacy, and intellectual property.

It is Leong’s discussion of Title VII that makes Identity Entrepreneurs a real contribution to equality scholarship. Regarding sexual harassment, Leong explores the predicament of a woman employee who tries to be the “Cool Girl,” after a passage in Gillian Flynn’s successful novel (and then movie) Gone Girl. The “Cool Girl” is the heterosexual woman who is essentially “a dude in a hot girl’s body” and the opposite of a “feminazi.” As an identity entrepreneur, the “Cool Girl” consciously leverages “the ideal of the attractive, intelligent, tolerant woman who laughs at questionable jokes (giving such jokes undeserved legitimacy)” and thus uses her “Cool Girl status to advance in the workplace.” Given Title VII’s requirement that sexual advances be “unwelcome,” the “list of Cool Girls turned Title VII losers is a long one.” When the strategies of an identity entrepreneur no longer work — as when the harassment becomes intolerable or even turns violent — the Title VII claimant’s previous attempts to leverage her “Cool Girl” identity work to her disadvantage. She is not a victim, but a participant. Leong suggests that Title VII be amended, either by interpretation or statutory amendment, to “shift the burden from the plaintiff to prove unwelcomeness to the defendant to prove welcomeness.” Under this new interpretation, “playing along” would not be viewed as “anything other than ambiguous evidence,” and would recognize “the experience of navigating the workplaces as an outsider, including the decision to engage in forms of identity entrepreneurship.”

Additionally, Leong suggests that those who are not identity entrepreneurs should be better protected. One example she uses is Bryant v. Begin Manage Program, an opinion from the Eastern District of New York in 2003, in which an African American employee claimed discrimination because her employer disapproved of her failure to dress in an Afrocentric manner and of her lightened hair. Having written about this case in Dressing Constitutionally: Hierarchy, Sexuality, and Democracy as one which illustrated Title VII’s inability to confront discrimination based on so-called “grooming,” I was intrigued by Leong’s conceptualization of the situation and her doctrinal remedy. For Leong, courts using “comparators” among employees — to determine if there is discrimination based on a protected identity — should take into account different decisions relating to identity entrepreneurship. She concedes that she is “not necessarily advocating the view that a black women who engages in identity entrepreneurship is no longer ‘similarly situated’ to one who does not,” she nevertheless advocates that “courts need to acknowledge that in many workplaces identity entrepreneurship may create relevant differences between two members of the same identity category that warrant a more searching inquiry into whether they are appropriate comparators.”

Finally, and perhaps most controversially, Leong proposes that employers engage in affirmative training regarding identity entrepreneurship in order to go beyond platitudes of “treat everyone equally.” What makes this proposal controversial is not the training itself, but her suggestion that it would serve as employer immunity against hostile workplace claims under the Faragher-Ellerth doctrine. She admits that many might argue that “the last thing Title VII doctrine needs is a modification that makes it more difficult for plaintiffs to recover,” but insists that litigation is rarely the best outcome. Instead, such a revision in the law could “get us where we want to go,” not by providing recovery for violations but by “providing strong incentives to ensure that the law is never violated at all.”

At its core, Leong’s article insists law must be a force for progress toward a more egalitarian society. She complicates our understandings of identity, even as she recognizes the agency each of us possesses — in larger or smaller amounts — to capitalize on our various identities. Law cannot solve every social problem, she notes, but it can shape the ways in which individual identity entrepreneurs and the out-groups to which they belong can flourish.

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Cite as: Ruthann Robson, Bargaining for Equality, JOTWELL (May 18, 2015) (reviewing Nancy Leong, Identity Entrepreneurs, 104 Cal. L. Rev. ___ (forthcoming 2016), Available at SSRN),