California moves to recognize intersectionality in discrimination claims

If Senate Bill 1137 becomes law, California would explicitly recognize “the concept of intersectionality” with respect to discrimination claims asserted under the Fair Employment and Housing Act. As currently worded, the bill would declare the Legislature’s finding that “different forms of inequality operate together, exacerbate each other, and can result in amplified forms of prejudice and harm” – for example, a Black woman might suffer discrimination based on a combination of her race and sex, and so “where two or more bases for discrimination or harassment exist, they cannot be neatly reduced to distinct components.” Whether or not the bill is passed, employers should understand intersectionality and anticipate claims asserting mistreatment on that basis.

What does “intersectionality” mean?

In her 1989 article, “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics,” legal scholar Kimberlé Crenshaw wrote that “dominant conceptions of discrimination condition us to think about subordination as disadvantage occurring along a single categorical axis,” meaning that discrimination claims have been evaluated based on the individual protected class(es) to which a person belongs (race, age, sex, gender, etc.). For example, a discrimination claim asserted by a Black woman, who is a member of two protected classes based on her race and sex, commonly has been assumed to present separate questions of discriminatory intent: whether she was mistreated because she is 1) Black (racism) or 2) a woman (sexism).

Crenshaw asserted that this approach “miss[es] the mark with respect to Black women,” who are “multiply-burdened.” Crenshaw analogized it to a vehicular accident occurring in an intersection. Unlawful bias, she wrote, can flow “like traffic through an intersection.” Racism may enter the intersection from one avenue, while sexism may come from a different direction. “[I]f a Black woman is harmed because she is in the intersection, her injury could result from sex discrimination[,] race discrimination,” or discrimination because she is a Black woman – the combination of her protected characteristics. Crenshaw concluded that a Black woman has an “intersectional experience [that] is greater than the sum of racism and sexism.”

Although Crenshaw wrote specifically about the “crosscurrents of racism and sexism” affecting Black women, presumably the concept of intersectionality could be invoked by a plaintiff having any combinations of protected classes – e.g., someone who is not only Hispanic but also LGBTQ+, or a person who is over 40 years old and has a disability.

Judicial recognition of intersectional discrimination and harassment claims

The Court of Appeals for the Ninth Circuit recognized the doctrine of intersectional discrimination in 1994, in Lam v. University of Hawaii (40 Fed.3d 1551). In that case, an Asian woman asserted a Title VII discrimination claim against the University of Hawaii based on her unsuccessful applications to become the Director of a Pacific Asian Legal Studies program. She had applied for the position twice. After she was selected as a finalist during the first search, the University canceled the search without offering the position to anyone. After a subsequent search, the University offered the role to a white woman, who declined the role. The University again canceled the search. Lam alleged she was denied the role on both occasions because of her race, sex, and national origin (Vietnamese). The district court granted the University’s motion for summary judgment based on the first search, and after a bench trial, entered judgment for the University as to the second search.

On appeal, the Ninth Circuit affirmed the judgment as to the second search, but reversed and remanded the award of summary judgment as to the initial search. It held that the district court erred in relying on the University’s evidence that it gave “favorable consideration” during the search to a candidate who was an Asian male and another who was a white woman. “[L]ooking for racism ‘alone’ and [] sexism ‘alone,’” reflected the court’s failure to recognize that “where two bases for discrimination exist, they cannot be neatly reduced to distinct components.” Citing Crenshaw’s article, the appellate court reasoned that “the attempt to bisect a person’s identity at the intersection of race and gender often distorts or ignores the particular nature of their experiences.” An Asian woman could be targeted even if neither Asian men nor white women were targeted. Thus, “when a plaintiff is claiming race and sex bias, it is necessary to determine whether the employer discriminates on the basis of that combination of factors, not just whether it discriminates against people of the same race or of the same sex.”

Following Lam, in 1995, Hon. Lawrence K. Karlton, then the Chief Judge Emeritus for the United States District Court, Eastern District of California, reasoned that plaintiffs alleging mistreatment based on a combination of their characteristics also can assert intersectional harassment claims. (Anthony v. County of Sacramento, 898 F.Supp. 1435 (1995).) He wrote that where a plaintiff asserts that she experienced a hostile work environment based on the combination of her protected traits, the question of whether the mistreatment was “objectively” offensive must be “determined from the perspective of a reasonable person with the same” combination of characteristics as the plaintiff. In the case before him, the plaintiff had alleged “that she was subjected to an environment that was hostile on both racial and sexual grounds, and that she was harassed to a degree that altered the conditions of her employment because she was a black woman.” Judge Karlton denied the defendant-employer’s motion for summary judgment on the plaintiff’s Title VII harassment claim because the plaintiff had presented evidence of incidents of both “racial and sexual hostility.” Some of the incidents “were offensive on racial grounds and others [] targeted her as a female.” Still other incidents were motivated by her status “as an African-American female,” and as to that “category of incidents,” it was “impossible to separate racial and sexual hostility” toward the plaintiff.

Validation of intersectional claims by the EEOC and CRD

At the state and federal level, agencies charged with enforcing equal employment opportunity laws appear to concur that employees may be entitled to protection based on the combination of their protected traits. The EEOC mentioned the Ninth Circuit’s Lam decision in its 2021 article, In Pursuit of Pay Equity: Examining Barriers to Equal Pay, Intersectional Discrimination Theory, and Recent Pay Equity Initiatives. The Commission agreed that “certain protected bases overlap, and negative stereotypes and biases may be directed at more than one protected basis at a time.” Its position is that existing law “prohibits employers from discriminating against employees because of the intersection of a protected basis under Title VII, for example race or sex, and a trait covered by another EEOC statute, such as disability or age.”

California’s Civil Rights Department (CRD) has commented on intersectional harassment claims. In a 2019 press release announcing the settlement of claims asserted on behalf of an employee (and resident) of a mobile home park, the CRD (then known as the Department of Fair Employment and Housing) observed that, “[u]nlawful harassment can be based on multiple intersectional grounds” (in that case, sex and national origin). Notably, the CRD’s proposed amendments to regulations implementing Government Code Sections 11135 et seq. (nondiscrimination in state-supported programs and activities) would confirm that prohibited discrimination “includes intersectional discrimination.”

Senate Bill 1137 – proposed FEHA amendment to recognize intersectional discrimination

Proposed legislation, California Senate Bill 1137 (SB 1137), would amend both the Unruh Civil Rights Act and the Fair Employment and Housing Act (FEHA). If SB 1137 becomes law, FEHA would explicitly prohibit discrimination based on the “intersection or combination of” characteristics such as race, sex, gender identity, religion, disability, etc. SB 1137 would declare that the amendments “are declaratory of existing law,” and would affirm the Ninth Circuit’s decision in the Lam case.

The bill was introduced by State Senator Lola Smallwood-Cuevas, who represents the 28th Senate District, in Los Angeles, on February 14. The Senator has said that if SB 1137 becomes law, California would be the first state in the nation to recognize intersectionality in the context of discrimination claims.

What to Watch

Even if the Legislature approves SB 1137, the Governor might veto it. Last year, he vetoed a bill that would have amended FEHA to explicitly prohibit discrimination based on a person’s caste. In his veto message, the Governor said he agreed with the Legislature that the amendment did not broaden the scope of FEHA’s coverage; if he believes the same is true for SB 1137, he may declare that he finds the proposed amendments to be unnecessary.