Race, Gender, Intersectionality, & Employment
Title VII was passed as part of the Civil Rights Act of 1964, prohibiting employment discrimination based on “race, color, religion, sex and national origin.”[1] While intended to protect marginalized people, courts have often failed to recognize the Title VII claims made by Black women.
Women of color can experience oppression along multiple axes — race, gender, often class, sometimes sexuality, etc. Kimberlé Crenshaw’s theory of intersectionality explains power and oppression as multidimensional. Race and gender are not “mutually exclusive categories of analysis.”[2] One does not experience oppressions (or privileges) discretely, but simultaneously. Black women and other women of color often have unique intersectional experiences that neither men of color nor white women can relate to. Women of color have filed Title VII cases seeking remedy for intersectional discrimination, but because Title VII “compartmentalizes discrimination into…discrete categories,”[3] courts have been unable to “comprehend intersectional experience.”[4]
In 1976, five Black women from Missouri filed a class action Title VII suit alleging that their employer, General Motors, discriminated against Black women. In DeGraffenreid v. General Motors, plaintiffs argued that a seniority-based layoff had disadvantaged Black women.[5] The court found that they “could not combine the claims” of race and sex discrimination because that would be “beyond the scope of Title VII.”[6] This decision codified that Black women could not be a protected class, and must either bring a racial or sex discrimination suit.
However, another 1976 Title VII case contradicted the ruling in DeGraffenreid. In Payne v. Travernol, two Black women attempted to bring a class action suit against their employer on behalf of all Black employees. The defendant requested that the plaintiffs not be allowed to represent Black men, and the court granted this request.[7] In DeGraffenreid, Black women were not allowed to advocate solely for Black women; in Payne, they were forced to. The contradiction between these cases is a “manifestation of the…limitations” of a single-axis, non-intersectional understanding of discrimination.[8]
Some progress has been made since DeGraffenreid and Travernol. In 1980, the court in Jefferies v. Harris County Community Action Association (HCCAA) recognized “combined claims of race and sex discrimination.”[9] Dafro Jefferies, a Black woman, alleged that she experienced sex, race, and “interactive discrimination” when applying for a promotion.[10] The court applied a ‘sex-plus’ analysis established by the 1971 Supreme Court case Phillips v. Martin Marietta Corp., which established that employers could not discriminate based on “sex plus a ‘neutral factor.’”[11] In Phillips, the neutral factor was motherhood; Martin Marietta Corp. was found to be wrongfully discriminating against women with children in ways that they did not discriminate against childless women or men with children.[12] In Jefferies, the neutral factor was race. The court found that “the fact that black males or white females [were] not subject to…discrimination is irrelevant.”[13] While this recognition is important, framing race as a ‘neutral factor’ suggests that it is secondary to sex, perpetuating the idea that identities can be isolated from each other.
The greatest victory with acknowledging intersectional experience in Title VII is arguably Lam v. Univeristy of Hawaii, in which an Asian woman brought suit alleging hiring discrimination on the basis of race, sex, and national origin in 1998.[14] The district court sided with the defendant, but their ruling was reversed by an Appeals court that recognized Lam’s intersectional claim.[15] The Ninth Circuit acknowledged that “Asian women are subjected to…disadvantages that are not shared by Asian men or white women.”[16]
The inconsistency of Title VII case law is harmful. Because “doctrine appears to shift,” plaintiffs can never be sure what articulation of their discrimination(s) will be accepted by any given court.[17] Even years after Lam, not all “deserving plaintiffs” are “afford[ed] protection.”[18] One suggested reform, adding the phrase, “or any combination thereof”[19] to the text of Title VII, would explicitly allow intersectional discrimination claims. This reform could make Title VII more inclusive and better able to serve the most marginalized populations as they seek remedy for employment discrimination.
[1] “Title VII of the Civil Rights Act of 1964,” United States Equal Employment Opportunity Commission. Accessed April 2015. <http://www.eeoc.gov/laws/statutes/titlevii.cfm>
[2] Crenshaw, Kimberlé. “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory, and Antiracist Politics,” page 57, 1989.
[3] Wei, Virginia W. “Asian Women and Employment Discrimination: Using Intersectionality Theory to Address Title VII Claims Based on Combined Factors of Race, Gender, and National Origin,” page 3. Boston College Law Review, July 1996. Accessed April 2015 via LexisNexis Academic.
[4] Abrams Kathryn. “Title VII and the Complex Female Subject,” page 2488. Michigan Law Review, August 1995. Accessed April 2015 via JSTOR.
[5] Crenshaw 58–59
[6] Powell, Mary Elizabeth. “The Claims of Women of Color Under Title VII: the Interaction of Race and Gender,” page 417. Golden Gate University Law Review Volume 26 Issue 2, 1996. Accessed March 2015 via JSTOR.
[7] Crenshaw 62
[8] Crenshaw 63
[9] Powell 419
[10] Powell 419
[11] Powell 420
[12] “Phillips v. Martin Marietta Corporation, Decided on Jan. 25, 1971; 400 US 542,” American Civil Liberties Union on procon.org. <http://aclu.procon.org/view.background-resource.php?resourceID=003291> Accessed March 2015.
[13] Powell 420
[14] Wei 1
[15] Powell 433
[16] Powell 433
[17] Colker, Ruth. “Whores, Fags, Dumb-Ass Women, Surly Blacks, and Competent Heterosexual White Men: The Sexual and Racial Morality Underlying Anti-Discrimination Doctrine,” page 2. Yale Journal of Law and Feminism 1995. Accessed via LexisNexis Academic, April 2015.
[18] Colker 16
[19] Wei 15
