Saturday, July 21, 2018



excerpted from: Kate Sablosky Elengold, Clustered Bias, 96 North Carolina Law Review 457, 458-464 (January, 2018) (262 Footnotes Omitted) (FULL ARTICLE)

kate elengoldIn 2009, Tametra Moore sued Cricket Communications, Inc. for sexual harassment, racial harassment, and retaliation in violation of Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment. Tametra is an African American woman. She worked in sales at retail Cricket stores in Tennessee and Texas. In 2008, two years into her employment with Cricket, Tametra was subjected to sexual and racial harassment at the hands of her store manager, Travis. Travis repeatedly made sexually explicit comments to Tametra in the workplace, discussing his sexual prowess and his penis, and stating that he "likes to eat from the ass to the pussy." Travis's sexual vulgarity was connected, in large part, to race. Travis asked Tametra if she had "ever been with a white man" and told her: "It's a myth that white man's have little dicks, because my dick is huge." Travis spoke of Black women in sexual and derogatory ways, asserting "the blacker the berry, the sweeter the juice" and "Black women got better pussy than white women." Travis showed Tametra and her colleague, Dwan (also a Black woman a naked photograph of himself and invited them to send him naked pictures of themselves. Tametra found Travis's language and behavior to be vulgar and filed a complaint with his superiors. In spite of a Cricket supervisor's stated belief that Travis would not have made those comments to White women, Cricket Communications failed to take Tametra's claims seriously. Tametra hired a lawyer, filed a charge with the Equal Employment Opportunity Commission ("EEOC"), received a right-to-sue letter, and filed suit against Cricket Communications in federal district court. She asserted three claims: sexual harassment, racial harassment, and retaliation. After a significant period of discovery and motion practice, Tametra endured a four-day trial. Having received jury instructions and a jury questionnaire explicitly and unambiguously separating Tametra's sexual harassment and racial harassment claims, the jury found for the defendant, Cricket Communications, Inc., on all claims.

Tametra's story is not atypical. Approximately one in five Black women report sex discrimination (including sexual harassment) in the workplace. Black women also report racialized sexual harassment in housing, where their experiences of sexual harassment are infused with racial animus. Those stories of intersectional discrimination--discrimination based on more than one identity trait--are replicated, with different identity characteristics and in different venues--employment, education, and public accommodations--around the country. And yet, Tametra is not alone in her failure to find remedy under the current antidiscrimination laws. Tametra, like other women of color, was failed by courts, by advocates, and by the federal agency tasked with implementing the relevant antidiscrimination statute. Each of those entities approached Tametra's injury, and thus her identity, in separate silos, assessing her claim of race discrimination as isolated from her claim of sex discrimination in the form of sexual harassment. In doing so, each relevant, institutional player ignored the ways in which intersectional discrimination, like that experienced by Tametra, operates in the real world.

Scholars, including critical race scholars, predicted and detailed the failures of courts, advocates, and agencies to fully implement antidiscrimination law for plaintiffs who have identities that cross protected classes. Intersectionality theory, introduced to legal academics by Kimberlé Crenshaw in 1989, seeks to explain and analyze the experience of individuals with more than one traditionally subordinated personal identity trait: "intersectionality." As applied to Tametra's case, the discrimination she experienced was intersectional in that it related both to her race (Black-ness) and her sex (female-ness). In that way, Tametra's experience of intersectional discrimination is different from single-axis discrimination based only on one protected category. Crenshaw explains that a Black woman's experience of bias and discrimination is different from a Black man's experience and different from a White woman's experience. Nor is a Black woman's experience of discrimination an additive experience; it is not race discrimination like that experienced by a Black man plus sex discrimination like that experienced by a White woman.

Some scholars have also challenged the wisdom of relying on rights-based antidiscrimination law for equality advancement, arguing that such laws were neither drafted nor developed to accommodate complex plaintiffs and criticizing the laws for ignoring the actual needs of subordinated groups in favor of isolated legal rights. These scholars have done important work to raise our collective consciousness about the experiences of women of color and others with intersectional identities facing bias and discrimination.

Intersectionality theory has not, however, been immune from critique. Scholars inside and outside of the legal academy have complained that intersectionality theory is both under inclusive and over inclusive. Intersectionality theory has been critiqued as under inclusive, or reductionist, because it focuses on the unique and incomparable situation of certain intersectional identities to the exclusion of others. Intersectionality theory has also been deemed over inclusive because each individual is comprised of an infinite number of identity traits, crossing an infinite number of axes. Thus, critics contend, there are no logical boundaries or study groups. Both the under inclusive and over inclusive critiques are barriers to the theory's application to antidiscrimination law and doctrine. As such, they represent certain limitations of intersectionality theory to permit or encourage understanding and analogizing discrimination across groups and subgroups. They also predict, at least in part, courts' general rejection of intersectional discrimination in civil rights actions.

This Article proposes a bridge between intersectionality theory and civil rights jurisprudence. Borrowing the insights of intersectionality and post-intersectionality theories, which have continued to evolve Crenshaw's original theory and account for some of its critiques, this Article develops a novel framework to present, analyze, and remedy intersectional discrimination within the current civil rights doctrine. Using race-sex discrimination as the lens, this Article proposes relocating that form of intersectional discrimination wholly within sex discrimination. Relocating the analysis will not only preclude the institutional players--the agencies, advocates, and courts--from separating and siloing strands of victims' identities, but will also allow scholars and advocates to see connections between different subgroup discrimination and overcome the barriers for intersectional plaintiffs asserting civil rights violations.

Part I of this Article sets out the problem--the insights of intersectionality theory have failed to take root in civil rights advocacy and jurisprudence. Part I exposes failures in three specific arenas: antidiscrimination jurisprudence, advocacy, and agencies.

Part II details the primary limits of intersectionality theory in application to antidiscrimination law. It draws the connection between those limits and the failures of antidiscrimination doctrine to adequately account for intersectional plaintiffs and intersectional discrimination.

Part III applies the insights derived from intersectionality and post-intersectionality theories to propose a novel framework for seeking to remedy intersectional discrimination through antidiscrimination law. Part III proposes (1) reimagining intersectional discrimination through an image of coterminous, rather than overlapping, circles of protected class identity; (2) relocating intersectional discrimination within those coterminous circles and thus, squarely within the definition of any one of the relevant categories of prohibited discrimination; (3) explicitly defining discrimination to include the categorizing, stereotyping, and subjugation of certain subgroups of protected classes, thus accounting for the relationship between individual discrimination and structural inequities; and (4) recognizing the full range of harms that flow from complex discrimination--to the individual, her community, her subgroup and her group. Part III uses race-sex discrimination as the lens to further flesh out the components of the cluster framework.

Part IV concludes with recommendations for implementing the cluster framework in the context of the antidiscrimination doctrine. Returning to Tametra's story, Part IV offers three concrete proposals for implementation of the cluster framework in the same arenas that have failed intersectional plaintiffs--advocacy, agencies, and courts. Although the proposals do not perfectly mirror the failures identified in Part I, they aim to make inroads toward fixing them.

The idea that "women's rights are human rights" has taken hold nationally and internationally; it is only natural that women of color's rights are clearly identified as both women's rights and human rights. Utilizing the cluster framework, we can reimagine the way that current civil rights protections can be laboring oars in the fight for racial and gender equality. And by implementing a new framework for presenting, analyzing, and remedying intersectional discrimination in civil rights cases, one can identify and utilize analogies between and across subgroup discrimination.

Kate Sablosky Elengold is a Clinical Associate Professor of Law at the University of North Carolina School of Law.

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