Intersectional Bias Claims Gain Attention Amid Judicial Divide

California lawmakers are aiming to make it easier to bring claims of discrimination based on a combination of protected characteristics—such as sex and race—as case law across the country remains clouded by inconsistent rulings that advocates say harm workers’ access to recourse.

A measure (S.B. 1137) introduced earlier this month would make California the first jurisdiction to explicitly adopt the concept of intersectionality and clarify how courts should assess overlapping claims under the state’s anti-discrimination laws.

Intersectionality—a concept civil rights scholar Kimberlé Crenshaw coined in 1989 to explain how different social identities coincide and cause unfair treatment based on that combination—has gained traction amid the Black Lives Matter and #MeToo social justice movements in recent years.

The Equal Employment Opportunity Commission recognizes that biases and negative stereotypes motivated by two or more protected traits may constitute intersectional discrimination under Title VII of the 1964 Civil Rights Act. For instance, Black female workers may encounter bias based on a combination of her race and gender not shared by Black men or White women.

But the lack of a uniform legal framework to probe such bias claims often forces workers to separate allegations connected to multiple identities, a move that can ultimately weaken their cases and make it hard to find representation, legal scholars said.

“We get a lot of intake calls from prospective clients who have intersectional bias-type claims. Because of the way that different jurisdictions in the past have treated these types of claims, we are generally not too apt to take them on,” said Marjorie Mesidor, a partner at plaintiff’s firm Wigdor LLP.

When an attorney decides to split each claim and analyze the case over each protected category individually, they seek to ensure the allegations and the protected categories at issue “capture enough” and can “at least stand on their own,” she said.

“The name of the defense game is to divide and conquer. If they can piecemeal out each aspect of your case, then they’ll believe that they’ve poked enough holes in it for it to completely fall apart,” Mesidor said.

Management-side attorney Bryan Hawkins of Stoel Rives LLP acknowledged that the current state of the law has created a “loophole” that may allow companies to escape liability under Title VII.

Hawkins was doubtful that the California measure would have a sweeping impact on the state, saying it already has some of the country’s most expansive pro-worker protections statutes.

Nonetheless, companies should revisit how they manage adverse employment decisions and ascertain potential litigation risks, he said. Employers should tread carefully by properly documenting their specific reasons for their actions and identifying any legal pitfalls.

Circuit Splits

Despite the recent expansion of federal and state anti-bias laws to address issues such as pay disparity, pregnancy discrimination, and sexual harassment, they remain silent on whether plaintiffs can bring intersectional bias claims or whether they must parse out their allegations based on each specific identity.

The result has been a patchwork of divided rulings among federal courts that make the California bill a welcome development, legal scholars said.

One of the earliest rulings addressing intersectional bias was a 1977 decision from the US Court of Appeals for the Eighth Circuit that upheld a lower court’s dismissal of a combined race and sex discrimination lawsuit by a group of Black women over General Motors Co.'s layoff policy.

“We do not subscribe entirely to the district court’s reasoning in rejecting appellants’ claims of race and sex discrimination under Title VII,” the Eighth Circuit said, but based its ruling on US Supreme Court precedent on seniority rights.

The Fifth Circuit later held that Black women are a sub-group entitled to Title VII protection because their experiences could otherwise leave them without a viable remedy.

The Ninth Circuit developed an intersectional bias legal framework in a case involving a woman of Vietnamese descent. And the Fourth Circuit declined to determine if a plaintiff could sustain a “hybrid” sex and race claim under Title VII, citing the Eighth and Fifth circuits’ conflicting rulings.

But it was in 2020 when the Tenth Circuit became the first federal appeals court to recognize that Title VII allows claims based on a combination of sex and age, pointing to the Supreme Court’s language in Bostock v. Clayton County on the legal threshold for showing bias. Bostock says multiple intersecting factors may lead to discrimination, including both sex—which is explicitly protected by Title VII—and sexual orientation or transgender status.

In the Tenth Circuit case, the EEOC filed an amicus brief backing a complaint from a group of older casino workers’ cross-statute claims invoking both the Age Discrimination in Employment Act and and Title VII.

‘Bridging the Gap’

“Any steps that can be taken to acknowledge the unrealistic parsing of claims” and “better match the realities of what people face, who they are, and how they seek redress,” is a win for workers in California, said Felicia Gilbert, a partner at Sanford Heisler Sharp LLP.

“It’s almost like trying to fit a square a peg into a round hole when it comes to representing individuals who are often put in this weird position where they’re expected to attribute a particular act of discrimination to an adverse employment action and one particular part of their identity,” Gilbert said.

“So this is really an important measure towards bridging the gap between how these claims get assessed and the actual practical realities and identities of people who are often plaintiffs in these cases,” she said.

On the federal level, the Biden administration has addressed racial and pay equity issues across federal agencies and among federal contractors.

Recent EEOC strategic enforcement plans also recognized the layered nature of workplace bias by incorporating intersectional discrimination into efforts against pay discrimination and workplace harassment.

But until federal anti-bias laws explicitly address intersectionality, the challenge of proving this specific type of bias will persist, legal scholars said.

Title VII and other anti-bias laws are “out of touch and antiquated with what discrimination looks like today. And they’re not keeping up at the same pace,” Mesidor said.

There’s no definite one-size-fits-all standard that would capture all of the complex intricacies of different types of intersectional discrimination claims, said Georgetown University law professor Jamillah Bowman Williams.

The current expansion of individual causes of action like sex-based claims “aren’t acknowledging that many times these are paired or compounded with other sorts of discrimination,” Williams said.

“This often comes up in an intersectional context and they’re ramping up the protection for the sex portion,” but “if workers are also experiencing racialized treatment, there’s no enhanced protection for that,” she said. “So that means whatever the status quo was prior to the reform, it prevails.”