Scott A. Small
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BACKGROUND OF INTERSECTIONAL DISCRIMINATION THEORY:
For nearly sixty years, Title VII the Civil Rights Act of 1964 has firmly controlled and governed claims of workplace discrimination for millions of Americans. The formula is quite simple: (1) An employee has an adverse action taken against them; (2) because of their race, sex, religion, color, or national origin (“protected category” or “class”);[1] (3) resulting in damages. The easiest case to make is one that is straightforward, when a single individual has a single characteristic which the employer uses to make a decision. Below is an example of a simple Title VII or Wisconsin Fair Employment Act claim:
Bukayo is a black male who is seeking a job at a local sporting goods store. He responds to a job posting looking for a “Soccer Sales Associate.” Having been a long-time soccer expert, Bukayo sends in his resume and soon gets a call back for an interview. Upon arriving at the store in his best suit with his letters of recommendation with him, he meets the store manager, Harry. Harry is a white man and the long-time manager of the store. Harry, upon seeing Bukayo for the first time, grimaces. The two talk for a bit about Bukayo’s experience and Harry says “You are the most qualified person to have applied, this is an impressive resume!”
Bukayo is beaming with confidence and asks when he can start. Harry grins, and then the smile fades away. “Unfortunately, most of our customers are white, and I don’t think that they would respond well to a man like you to sell them equipment.” Bukayo is confused and asks Harry to elaborate. Harry states “Well, all of our other employees are…” he pauses, “…local. I just can’t justify hiring someone like you.”
Bukayo’s claim here is clear: (1) he had an adverse action taken against him by Harry failing to hire him; (2) the failure to hire was because of his race or color; and (3) he was denied a job, and thus income, because of the adverse action.[2]
It does not take an expert Labor and Employment Attorney to tell you that you can not be denied a job on the basis of a protected class. What then, happens when a black man is denied a raise, when black women and white men are given a raise? Enter “intersectional discrimination.” When two or more protected classes combine to create a single stereotype or discriminatory animus, the intersection of those two protected classes protects the employee. Perhaps the most widely known intersection of protected classes is that of Black women. The “Angry Black Woman” trope has negatively impacted Black women, especially those in white collar professions.[3]
When a Black woman speaks out in a meeting, or is stern with the team of individuals that she is supervising, she is seen as “Loud. Erratic. Uncontrollable. Full of attitude.” Id. However, when a white woman, or a black man, use the same techniques or phrasing, they are seen as running a tight ship, leaders, and getting the most out of their subordinates. The true discrimination happens because the Black woman is both Black and a woman.
The Fifth Circuit is credited with identifying such claims in Jeffries v. Harris County Community Action Ass’n.[4] In the early years of intersectionality claims, courts relied on “plus” verbiage to firmly categorize the claims into a protected class. E.g. The plaintiff in Phillips v. Martin Marietta Corp. filed claims under a theory of “sex-plus” due to a company policy of rejecting female applicants with pre-school aged children, while also hiring men with the same aged children.[5] Importantly, having pre-school aged children is not in itself a protected class, hence “sex-plus.” Intersectional claims extend those protections to individuals who are discriminated against on two protected bases.
In the past, Courts have attempted to marshal intersectional claims in order to cleanly place Plaintiffs into one of the five protected classes. This approach was intended to avoid Title VII becoming a “many-headed Hydra” by combining each possible race, religion, national origin, color, and sex.[6] This allegorical interpretation of discrimination claims has not been without its detractors. Some believe that the Judge line of thought is preventative to the overarching goal of Title VII, preventing unlawful discriminatory practices.[7] Simply put, the effectuation of intersectional theory is a means to an end that will ultimately allow punitive measures to be taken against discriminators.
It may be easiest to consider intersectional discrimination through the lens of the individual, instead of the class of individuals. “It is sometimes mistakenly thought that the black male experience represents a mere racial variation on the white male experience and that black men suffer from discrimination only because they are black.” Kimble v. Wisconsin Dept. of Workforce Development, 690 F.Supp.2d 765, 770 (E.D. Wis. 2010).[8] If a Black male and Black female have different employment experiences, it is still possible that one or both have suffered from discriminatory actions on the basis of their combined traits. The distinct stereotypes associated with those combined traits are the essence of intersection discrimination claims.
HOW TO USE INTERSECTIONAL DISCRIMINATION THEORY IN PRACTICE:
At its core, the theory of intersections discrimination serves two main purposes: (1) allowing plaintiffs to be more specific when pinpointing and describing the alleged discriminatory actions or harassment; and (2) evolving the understanding of what constitutes a “comparator employee”—an individual used as a baseline for how the employer treats their employees.[9] Using the Black woman stereotype above, the plaintiff can now compare how she was treated to how other women were treated, and how other Black employees were treated. Prior to intersectional theory being adopted, she would have needed to focus on either other females, or other Black employees. It is absolutely crucial that an attorney discuss both comparator categories with their client to firmly grasp what evidence of discrimination may be available during the litigation. In some cases, knowing that both comparator classes may be considered may be the difference between a prima facie case being made or not being made.
Additionally, the popularity of intersectional discrimination claims almost assuredly will rise along with the general public’s knowledge of intersectional theory. More Americans Googled “Intersectionality” in February of 2023 than any other month prior, whereas the more general phrase “workplace discrimination” peaked in April of 2010.[10] There is little question then, that the public (and soon the legal profession) will begin to understand and focus on intersectional discrimination in the coming years and decades.
CONCLUSION
Given the rise in popularity that intersection discrimination theory has experienced in the general public, it almost goes without saying that Attorneys need to know how to describe the elements of the claims, as well as effectuate the power of Title VII to best serve their clients. Undoubtedly, the popularity of such claims will increase over time, leading to changes for both plaintiff and management side attorneys.
The best way to know if you have become a victim of discrimination in the workplace? Contact an attorney to discuss the facts, circumstances, and adverse actions taken against you today!
[1] 42 U.S.C. 2000e. Importantly, the use of the word “or” is evidence that Congress’ intent is to prohibit discrimination because of any or all of the listed characteristics. The United States House of Representatives refused to adopt an amendment to the Act which would have made each protected category separate from the others. 110 Cong.Rec. 2728 (1964).
[2] Note, it is not important that Harry is white or a male in this situation, only that he denies Bukayo the job because of Bukayo’s race or color.
[3] See, Aggressive Encounters & White Fragility: Deconstructing the Trope of the Angry Black Woman, 102 Iowa L. Rev. 2017, Trina Jones & Kimberly Jade Norwood.
[4] 615 F.2d 1025 (5th Cir. 1980).
[5] 400 U.S. 542, 91 S.Ct. 496 (1971).
[6] Judge v. Marsh, 649 F.Supp. 770, 780 (D.D.C. 1986)
[7] Floyd D. Weatherspoon, Remedying Employment Discrimination Against African-American Males: Stereotypical Biases Engender a Case of Race Plus Sex Discrimination, 36 Washburn L.J. 23, 41 (1996).
[8] A special thank you to Attorney Brenda Lewison, who helped litigate this case, for providing research assistance.
[9] See, Coleman v. Donahoe, 667 F.3d 835 (7th Cir. 2012) (Plaintiff, a Black woman, presented evidence that two white male employees were “disciplined by the same decisionmaker, subject to the same code of conduct, and disciplined more leniently for violating the same rule as she,” enough to provide for a meaningful comparison.)
[10] Google Trends, https://trends.google.com/trends/explore?date=all&geo=US&q=intersectionality,workplace%20discrimination&hl=en. Retrieved April 17, 2023.