Intersectional Bias Claims Poised to Grow After California Law

A first-of-a-kind California law codifying protections against workplace discrimination on the basis of two or more protected traits adds momentum to the spread of “intersectional bias” as a legal claim even beyond state lines.

The law explicitly protects workers from discrimination based on two or more covered categories together, such as race and religion, or gender and age.

The change fills in certain gaps left by conflicting rulings on related discrimination cases, even as it raises practical questions about how the law will play out in court. California’s embrace of these claims also reflects the growing popularity of “intersectionality,” a concept first outlined in the 1980s, in present-day social justice movements.

“What the law does is it recognizes, the law is not being as rigid and cookie-cutter and antiquated as it has in the past in the way that these cases are being analyzed,” said Marjorie Mesidor, a founding partner at Mesidor PLLC.

An employee in California can file a discrimination claim based on a sub-group formed by two or more traits. A Black woman may face discrimination in the workforce different than her Black male colleagues or White female colleagues.

“My hope for this new law is that we start to recognize the wholeness of people and know that we have multiple identities, we have multiple experiences that should be protected,” said State Sen. Lola Smallwood-Cuevas (D), who introduced the bill.

Court Contrasts

Title VII of the 1964 Civil Rights Act doesn’t explicitly address the intersection of protected classes, forcing workers across the US to look to the courts.

Circuits have issued contrasting rulings on cases that involve claims of discrimination on the basis of two or more protected traits.

The US Court of Appeals for the Ninth Circuit, which contains California, recognized intersectional discrimination claims in a 1994 case brought by a woman of Vietnamese descent, asserting that “Asian women are subject to a set of stereotypes and assumptions shared neither by Asian men nor by White women,” and may face discrimination even when people in those other two sub-groupings do not.

The Fifth and Tenth Circuits have also signaled favor for intersectional bias claims through decisions in recent decades.

They contrast with a 1977 ruling from the Eighth Circuit, which upheld dismissal of a case brought by a group of Black women over General Motors Co’s layoff policy, asserting that under Title VII their complaint might be “a cause of action for race discrimination, sex discrimination, or alternatively either, but not a combination of both.”

The Golden State’s generally employee-friendly legal frameworks often make it the first-mover on trends that spread across the country.

Its intersectional bias law may stretch into “less employee friendly jurisdictions” by providing evidence for plaintiffs to say, “this is basically the way the law is being interpreted now, and you more conservative court should follow their lead,” said Bryan Hawkins, a partner at Stoel Rives LLP.

The US Supreme Court’s 2020 decision in Bostock v. Clayton County, which said multiple intersecting factors may lead to discrimination including sex, sexual orientation or transgender status, boosted intersectional claims.

Bostock examined the “but-for” causation standard for Title VII , which seeks to establish causation by showing an employers action would not have been discriminatory had it not been for the employee’s membership in a protected class. Justice Neil Gorsuch wrote in the majority Bostock opinion that the “but-for” standard “continues to afford a viable, if no longer exclusive, path to relief under Title VII.”

“In Bostock the court was very clear that we can have multiple but-for clauses, and that is something that really supports the idea of intersectionality,” said Vasu Reddy, director of state policy for workplace justice at the National Women’s Law Center.

“It’s exciting, not only because it makes it explicit that under California law, this is a recognized claim, but also reinforces that federally, this was already the law of the land,” Reddy added.

The Equal Employment Opportunity Commission, which enforces Title VII, reinforced in April guidance that harassment claims can be based on more than one protected characteristic.

Additional Challenges

Theoretically, differing causation standards under various federal discrimination laws governing intersecting areas of bias like age, gender, and disability, would create additional complications in proving a claim that cites multiple protected factors.

Some of these laws are typically evaluated by courts using the more lenient “motivating factor” test, while others like Title VII are weighed using versions of “but for.”

But in California, the causation standard is consistent under the state’s discrimination law and plaintiffs would likely use that to sue for intersectional bias, Hawkins said.

Intersectional claims may also be more difficult to find evidence for on both sides than a claim based on a single protected category, according to Ken Jones, a partner at Saul Ewing.

Typically in a workplace discrimination case another worker in a similar role that does not fall into that protected class would be used for comparison to prove bias occurred.

“It’s easier when you can say, all right, this person belongs to one group, let’s go get someone that doesn’t belong to that group, that’s generally situated, and we can prove race was a factor, et cetera,” Jones said.

When protected traits “merge into essentially one new overlapping area of discrimination,” it can be more challenging to find a comparator, he added.

It could also be more complicated to explain an intersectional bias case to a jury — and the less complicated a discrimination case is, the easier it is to present for both workers and the employer, Jones said.

Some juries may also be more open to understanding intersectionality than others.

Younger generations “may be more receptive to some of these claims or these concepts” compared to older generations, Jones said.