Clarification re: race-matched political solicitations

[Volokh, Eugene]

        An off-list question made me realize that my post was a bit
ambiguous when it said:

>                 The court did, however, say that "TPG could have
> legally
> assigned jobs based on accent, speech pattern or dialect, but not
> expressly on race," just as "A film director casting a movie about
> African-American slaves may not exclude Caucasians from the auditions,
> but the director may limit certain roles to persons having the
> physical
> characteristics of African-Americans."  This seems to me a sensible
> result in this case, though query how compatible it is with Title VII
> generally.
>
                I think the specific holding of this case -- that such
race-matched political solicitations violate Title VII as it is written
-- is indeed compatible with Title VII generally.  As courts have
recognized, there's no race BFOQ in the statutory text.

                The possible incompatibility is between the "accent /
appearance discrimination isn't race discrimination" theory and Title
VII.  Seems to me that if one takes this argument seriously, then it
would make pretty huge inroads into Title VII's coverage.  Consider the
following defense:  "We're not refusing to hire this worker because he's
black -- if he was black but looked white, it'd be no problem, because
our racist white customers would be happy to deal with him.  Rather,
we're refusing to hire him precisely because of his appearance (or, for
phone sales, voice)."  Surely not sound under orthodox Title VII law,
but seems at least facially plausible under the court's dictum.

                As it happens, I think that the "accent discrimination
OK, race discrimination bad" approach *is* the right one here, but
because of the 1st Am concerncs, not because of my statutory
construction of Title VII.