Adding Intersectionality to Discrimination Laws
NEWSLETTER VOLUME 2.12
|March 25, 2024
Adding Intersectionality to Discrimination Laws
Intersectionality recognizes that multiple forms of discrimination can cause a single adverse employment action. For example, if you look at pay equity, not only do women generally make lower wages than men, but Latinas make less than Black women, who make less than Asian and white women. Last year, Pew Research found that age, race, gender, and whether a woman has children all affect wages. The more factors associated with the employee, the lower the pay.
We know that just like humans come in all different varieties, so does discrimination. And often there's more than one variety affecting discriminatory employment decisions.
When all the factors influencing the decision involve protected classes, it's easy to find that there is discrimination. But when some of the motivations are discriminatory and some aren't, it gets a little more complicated.
Discrimination cases often involve "mixed motives." A mixed motive case is when the employee can show that there was unlawful discrimination and the employer can show that there were also legitimate, nondiscriminatory reasons for the decision. In these cases, the employer has to be able to prove that they would have made the exact same decision even if discrimination wasn't at least a partial reason for what they did. This is where the facts and evidence really matter. Of course the employee claims it was discrimination and the employer claims they would have done it anyway. Who to believe depends on what happened and what was going on at the time.
When we talk about intersectionality and discrimination, it usually means discrimination based on multiple protected factors rather than both discriminatory and nondiscriminatory factors. So, adding intersectionality does not really change existing law or what it takes to prove a discrimination case. It really just acknowledges that an employee does not have to prove that a single type of discrimination was the basis for the decision and often there will be multiple forms of discrimination involved.
To recap, mixed motive cases involve both discriminatory and nondiscriminatory reasons for the action; intersectionality cases involve multiple discriminatory reasons for the action. But as a practical matter, the employer almost always claims that it had a nondiscriminatory reason for its decision. Thus, most intersectionality cases will also be mixed motive cases even if they mean somewhat different things.
So, I'm not sure this bill will make much practical difference. But it does clarify the law.
On February 14, 2024, California State Senator Lola Smallwood-Cuevas introduced Senate Bill 1137 (“SB 1137”), a bill that would make California the first state to specifically recognize the concept of “intersectionality.” Smallwood-Cuevas has stated that SB 1137 “makes it clear that discrimination not only happens based on one protected class, such as race, gender or age, but any combination thereof.”
Specifically, SB 1137 would amend the Unruh Civil Rights Act and the Fair Employment and Housing Act to make clear that these laws protect not only certain characteristics but also the “intersection or any combination of those characteristics.”
The concept of “intersectionality,” first popularized in 1989 by legal scholar Kimberlé Crenshaw, refers to discrimination based on multiple protected characteristics when both protected characteristics are present in a single identity. For example, a plaintiff may argue that she experienced unique discrimination based on both her race and her sex.
The concept of intersectionality also has appeared recently at the U.S. Supreme Court. In his majority opinion in Bostock v. Clayton County, 590 U.S. 644, 661 (2020), Justice Neil Gorsuch did not use the term “intersectionality” but did discuss how an employer might violate Title VII if it fired a female employee who was a “Yankees fan” yet “would have tolerated the same allegiance in a male employee.” Even if “two causal factors may be in play . . . [i]f an employer would not have discharged an employee but for that individual’s sex, [Title VII’s] causation standard is met, and liability may attach.” Id.
SB 1137 has been referred to the California State Senate Judiciary Committee, where it will be analyzed in advance of a hearing date where committee members can ask questions about the new bill. Follow the California Employment Law Update to monitor the ever-changing labor and employment law landscape, including whether SB 1137 makes it to law.
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