None of us are defined by a single trait or characteristic, and many individuals share more than one class of traits that may make them targets of legally prohibited discrimination or harassment. Indeed, as the #MeToo Movement has reminded us, perpetrators of sexual harassment may be more likely to target individuals with multiple protected traits, including people with disabilities and people of color, for abuse.
Judges are increasingly recognizing these forms of “intersectional” discrimination and harassment in cases involving plaintiffs whose claims are based on their membership in more than one protected class.
Intersectionality is an analytical framework developed by Black queer women in the Combahee River Collective. Popularized by Black legal scholar Kimberlé Crenshaw, it posits that “different forms of inequality […] operate together and exacerbate each other.” Professor Crenshaw and others have used this lens to illuminate the unique, interlocking forms of discrimination Black women face in the workplace and throughout society compared to Black men and white women. Intersectionality also recognizes a constellation of social characteristics beyond race and gender—including class, sexuality, disability, immigration status, age, and religion—that inform an individual’s experience of discrimination.
The Center for Intersectional Justice describes intersectionality as:
“the ways in which systems of inequality based on gender, race, ethnicity, sexual orientation, gender identity, disability, class and other forms of discrimination “intersect” to create unique dynamics and effects. For example, when a Muslim woman wearing the Hijab is being discriminated, it would be impossible to dissociate her female from her Muslim identity and to isolate the dimension(s) causing her discrimination.”
Legal Recognition of Intersectionality
Federal and state courts have increasingly recognized “intersectional” discrimination and harassment and how such conduct violates Title VII of the Civil Rights Act of 1964 and other anti-discrimination laws. As one federal court noted, “Some characteristics, such as race, color, and national origin, often fuse inextricably. Made flesh in a person, they indivisibly intermingle. Title VII prohibits employment discrimination based on any of the named characteristics, whether individually or in combination.”
Several courts also have addressed intersectional discrimination against Black women, in particular. In Shazor v. Professional Transit Management, for example, the U.S Court of Appeals for the 6th Circuit recognized that “These characteristics do not exist in isolation. African American women are subjected to unique stereotypes that neither African American men nor white women must endure.” It concluded that “[i]f a female African American plaintiff. . . establishes a sufficient foundation of discrimination, a defendant cannot undermine her prima facie case by showing that [W]hite women and African American men received the same treatment.”
As lawyers who champion civil rights, we have seen cases of intersectional discrimination and harassment – and the trauma and indignity it causes victims – firsthand. That is why we fiercely advocate for our clients by crafting authentic, dignified narratives and identifying and pursuing claims based on multiple protected traits.