IV. The Race Plus Sex Theory of Discrimination
The theory of race plus sex discrimination is by no means a major revelation. However, as is often the case with the obvious, courts refuse to accept this theory and apply it when stereotypical bias against African-American males results in African-American males being discriminated against in the workplace. Rather than recognize the clear evidence that Title VII factors may be combined, the courts continue the tradition of parsing a statute into separate and totally distinct elements.
A. Supreme Court Accepts Sex Plus Theory of Discrimination
In 1971 the Supreme Court accepted the theory of sex plus in Phillips v. Martin Marietta Corp. In Phillips, Mrs. Ida Phillips was denied employment by the defendant because she had pre-school-age children. However, defendant employed men with pre-school-age children. The district court granted a motion to strike the portion of the complaint which alleged that discrimination against females with pre-school-age children violated Title VII. The district court subsequently granted defendant's motion for summary judgment because 75 to 80 percent of the positions in question were held by females; thus, sex discrimination could not have occurred. On appeal, the Fifth Circuit affirmed the lower court decision. The Fifth Circuit stated:
We are of the opinion that the words of the statute are the best source from which to derive the proper construction. The statute proscribes discrimination based on an individual's race, color, religion, sex or national origin. A per se violation of the Act can only be discrimination based solely on one of the categories, i.e., in the case of sex: women vis-a-vis men. When another criterion of employment is added to one of the classifications listed in the Act, there is no longer apparent discrimination based solely on race, color, religion, sex or national origin. It becomes the function of the courts to study the conditioning of employment on one of the elements outlined in the statute coupled with the additional requirement, and to determine if any individual or group is being denied work due to his race, color, religion, sex or national origin.
. . . .
. . . Ida Philips was not refused employment because she was a woman nor because she had pre-school age children. It is the coalescence of these two elements that denied her the position she desired.
In vacating the appellate decision, the Supreme Court stated that “[s]ection 703(a) of the Civil Rights Act of 1964 requires that persons of like qualifications be given employment opportunities irrespective of their sex. The Court of Appeals therefore erred in reading this section as permitting one hiring policy for women and another for men--each having pre-school-age children.” Justice Marshall's concurring opinion noted that the Civil Rights Act of 1964 “intended to prevent employers from refusing ‘to hire an individual based on stereotyped characterization of the sexes.”’ Since Phillips, the Supreme Court has issued additional decisions supporting its theory of discrimination plus other factors. Clearly, this legal theory should apply to African-American males who are discriminated against because of “stereotyped characterizations” of their race plus their sex.
B. Race Plus Sex Theory Application to African-American Females
A few district courts and at least three of the federal appellate courts have hesitantly embraced the race plus sex theory as it applies to African-American females. In Jefferies v. Harris County Community Action Association (HCCAA), the Fifth Circuit Court of Appeals held that discrimination against African-American females can exist even in the absence of discrimination against African-American males or white females, thus clearly accepting the race plus sex theory of discrimination.
Jefferies, an African-American female, applied for one of two positions as a field representative. The positions were previously staffed by a white female and an African-American male. On the day she submitted her application, Jefferies noticed that a “personnel action” had been completed to hire Eddie Jones, an African-American male, as acting field representative. Jefferies filed a lawsuit alleging race and sex discrimination. During the trial, Jefferies submitted uncontroverted evidence that every position for which she applied had been filled by males or white females.
The district court dismissed Jefferies' claim of race and sex discrimination. In reversing the district court's decision, the Fifth Circuit agreed with Jefferies' argument that the district court erred in refusing to address her claim of discrimination based on a combination of race and sex. The court stated:
In the absence of a clear expression by Congress that it did not intend to provide protection against discrimination directed especially toward black women as a class separate and distinct from the class of women and the class of blacks, we cannot condone a result which leaves black women without a viable Title VII remedy.
. . . .
We also feel that this result is mandated by the holdings of the Supreme Court and this court in the “sex-plus” cases.
Other district courts have not been as willing to recognize the theory of race plus sex discrimination. For example, in DeGraffenreid v. General Motors Assembly Division, St. Louis, the district court addressed the issue directly and emphatically refused to recognize that discrimination could be based on a combination of race and sex discrimination. In DeGraffenreid, African-American females employed by General Motors brought an action under the Civil Rights Act of 1964 and section 1981 alleging race and sex discrimination in that the “last hired--first fired” layoff policies discriminated against African-American females and perpetuated past practices of discrimination. The African-American females plaintiffs further alleged that “they [ were] suing on behalf of African-American women, and that therefore [the] lawsuit attempts to combine two causes of action into a new special sub-category, namely, a combination of racial and sex-based discrimination.” In dismissing the action, the district court indicated that plaintiffs were unable to cite any decisions supporting such a theory, nor could the court find support in its own research. The court acknowledged that if discrimination occurred on the basis of race or sex a remedy should be ordered. However, the court stated that African-American females “should not be allowed to combine statutory” claims, such as race and sex “to create a new ‘super-remedy”’ because such a theory is not supported by the legislative history of Title VII, nor case law. Specifically the court stated:
The legislative history surrounding Title VII does not indicate that the goal of the statute was to create a new classification of “black women” who would have greater standing than, for example, a black male. The prospect of the creation of new classes of protected minorities, governed only by the mathematical principles of permutation and combination, clearly raises the prospect of opening the hackneyed Pandora's box.
On appeal, the Eighth Circuit affirmed part of the lower court decision, reversed part and remanded the case for further proceedings in accordance with the decision. However, the Eighth Circuit stated in dicta that: “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 failed to articulate which part of the theory it rejected or the part it supported, nor did it give any analysis to support its conclusion.
In another case where it was clear that the plaintiff, an African-American female, indirectly raised the claim of race plus sex allegations, the court rejected the allegation of discrimination when the similarly situated employees were an African-American male and an American Indian female. Specifically, the court stated “[n]ot only did plaintiff fail to establish that other similarly situated employees were treated differently, but the situations she presented to the . . . court for comparison involved the activities of a black male and a Native American female.”
Recently, the Ninth Circuit also applied the race plus sex theory to a claim of discrimination by a female professor of Vietnamese descent. In Lam v. University of Hawaii, the plaintiff alleged discrimination based on race, sex and national origin. The district court granted defendants' motion for summary judgment, in part because it determined that defendants had given “favorable consideration” to an Asian male and a white female during the selection process. In reversing the grant of summary judgment, the circuit court decided that the lower court made a significant error in separating the treatment into discrete categories of race and sex. “[T]he attempt to bisect a person's identity at the intersection of race and gender often distorts or ignores the particular nature of their experiences.”
C. The Application of the Race Plus Sex Theory to African-American Males
In contrast to the developing trend of African-American females and other protected groups in persuading courts to approve the race plus sex theory, African-American males have had almost no success in race plus sex cases. However, in Long v. AT&T Information Systems, Inc., an obscure federal district case, the court accepted plaintiff's request for the court to analyze his case on the basis of his race (African-American) and sex (male) together. The court stated “plaintiff argues that [defendant] did not discriminate against him on the basis of either race or sex standing alone, but on a combination of the two, and the Court confines its inquiry accordingly.” The court accepted Long's prima facie case of race plus sex without citing authority. Long, an African-American male, alleged that he was discriminated against individually as an African-American male, and that there was a pattern and practice of discrimination against African-American males in terms and conditions of employment. Specifically, Long alleged that African-American males received lower compensation, were denied advancement opportunities, assigned substandard accounts, and his supervisor used racial epithets in reference to him (“black boy”), whereas whites and other minorities, including African-American females, were treated more favorably.
Long attempted to prove that there was a pattern and practice of discrimination against African-American males by charting the average salaries of African-American males, African-American females, white males, white females, Hispanic females and Asian males who were employed by the defendant. The court ruled that the plaintiff's data was flawed, because many of the employees included in the data were not in comparable positions. Nonetheless, the court did not reject the grouping of employees by race and sex for purposes of determining whether a pattern and practice of discriminating against African-American males existed. The court, however, removed the names of employees who were in a different department from the plaintiff, thus reducing the number of employees to compare from forty-one to twenty-two. After excluding nineteen employees from the data, the court reasoned that “[w] ith this small sample size, plaintiff's comparison of ‘average’ salaries may present distorted results as a small number of very high or low salaries [[[[would] disproportionately affect the averages.” Though the court found that Long failed to substantiate his claim of discrimination in compensation or promotion, it did find that Long proved discrimination in termination by showing personal attacks on himself.
Courts generally, however, have either failed to explore the race plus sex theory, or the issue has not been raised on appeal or in a timely manner. In some cases, plaintiff received a cursory review, or the court ignored plaintiff's claim of race plus sex discrimination and analyzed the claim on the basis of race or sex. In other cases, the facts suggest a race plus sex form of discrimination but only a claim of race discrimination is pursued. Unfortunately, stereotypical bias on the basis of race and sex directed at African-American males in the workplace appears to be limitless. Meanwhile, stereotypical biases against African-American females and other minority groups in the workplace are prevalent but are not based upon feelings of hate and fear. If an employer has a choice between hiring a qualified African-American male or a qualified African-American female, the employer will generally opt to hire the African-American female. Employers might consider a negative stereotypical bias of African-American males as the tie-breaker. Moreover, employers recognize that African-American females can be counted twice on their Affirmative Action plan, once as African-American and once as female. This double counting is a legal method of manipulating Affirmative Action statistics to ensure that the analysis will not show any significant underrepresentation of African-Americans and females in the workplace.
A significant difficulty seems to arise when an African-American female and a white male have received favorable treatment, while an African-American male has been treated less favorably. Such a claim of discrimination could probably defeat an African-American male's claim of race and sex discrimination. Courts have typically held that if an African-American female was selected over an African-American male, race could not have been a factor. Furthermore, in a sex discrimination case, where a white male has also been selected, the sex of the African-American male could not have been a factor. This creates a loophole through which a biased, but shrewd, employer could hire an African-American female and a white male in order to defeat any future employment discrimination claim filed by an African-American male. Courts have generally failed to recognize that organizations may discriminate against African-American males on the basis of race plus sex, even if an African-American female and a white male are treated more favorably.
Courts have usually declined to recognize African-American males or, in some cases, to even consider them as a separate class or subgroup in a Title VII analysis. A clear example was recently illustrated in Davis v. Yazoo County Welfare Department. In Davis, the Fifth Circuit refused to determine whether African-American males represent a protected class; the court limited its review to the district court's finding of sexual discrimination.
Davis was a thirty-three year old African-American male who applied for one of two positions as an eligibility worker in the Yazoo County Welfare Department. The positions were filled by an African-American female and a white female. Subsequently, additional vacancies were also filled by African-American females. Approximately one month after the initial selections, defendant filled two other vacancies with African-American females. Filing a complaint with the Equal Employment Opportunity Commission (EEOC), Davis alleged that the defendant had discriminated against him on the basis of race and sex. After he received a right to sue letter from the EEOC, Davis filed a civil suit in federal district court, again alleging discrimination based on race and sex.
The district court held that Davis had been discriminated against on the basis of sex in violation of Title VII. The district court, however, failed to rule on the race allegation or recognize African-American males as a subgroup protected by Title VII. Plaintiff appears to have established a prima facie case by alleging that the employer preferred females for the positions, particularly African-American females. Clearly, Davis was a member of a subclass of African-American males who are protected under Title VII. The rejection of Davis may have been based upon stereotypes and assumptions regarding his race and sex. The mere fact that an African-American female was selected should not have defeated his individual claim of race plus sex based discrimination.
In Parrott v. Cheney, the court also ignored the possibility of a combination of race plus sex discrimination. The court ruled that Parrott, an African-American male with fifteen years of experience in the relevant field could not support his allegations of race and sex discrimination even though the second selectee was a white female with only ten years of experience. The court granted a motion for summary judgment dismissing the action because plaintiff failed to establish a prima facie case. The district court, in granting the motion, cited Holmes v. Bevilacqua:
The facts here parallel quite closely the facts of the Holmes case. In Holmes, the plaintiff, a black male, applied for a vacant position and survived two screening processes before being chosen as one of five finalists. The ultimate selectee, a white male, was chosen although he had less experience and had ranked slightly lower than the plaintiff among the five finalists chosen during the screening process. The plaintiff in Holmes testified at trial that all of the candidates were well-qualified, just as the plaintiff in this case testified at his deposition that Ms. Mandish was well-qualified. In Holmes, as in this case, the plaintiff could not produce evidence which demonstrated that race was a determining factor in the employer's decision. As in Holmes, plaintiff cannot make out a prima facie case of discrimination.
The court's focus in Parrott was purely on the issue of race even though the plaintiff alleged discrimination on the basis of race and sex. The first selectee for the position was a Hispanic female. Her selection was subsequently rejected by a grievance examiner. A new selection panel was convened, and it selected a white female. The selection of a minority female and a white female over a qualified African-American male should have easily established a prima facie case of discrimination as outlined in McDonnell Douglas Corp. v. Green. The district court, however, held that the Fourth Circuit decision in Holmes required some evidence of discrimination at the prima facie stage. Instead of following the McDonnell Douglas Corp. standard of analyzing the race plus sex claims, the court implied that the selecting official, an African-American male, could not discriminate against another African-American male. The court failed to give the plaintiff an opportunity to go forward with the case to prove that he had been denied a promotion because he was an African-American male. In dismissing the action, the court ignored the race and sex claims, instead analyzing the case on the basis of race or sex.
Even when race and sex combined have not overtly been considered in the employment decision process, the combination of race and sex nonetheless has usually played a sub rosa role in the process. By ignoring this theory of discrimination, a court limits and devalues an employee's individual experiences with discrimination. There is no indication of legislative intent to limit Title VII in such a manner. Rather, Congress' objective was to eliminate all forms of invidious discrimination on the basis of race, color, sex, national origin and religion, as well as combinations of these “categories.”