Employer Lessons In Avoiding Intersectional Bias Claims

Posted September 8th, 2021.

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By Saba Bireda, Kate Mueting and James Hannaway

In June, President Joe Biden took an important step toward a more diverse and equitable federal workforce by issuing an executive order instructing federal agencies to identify and counteract intersectional discrimination.

Recognizing that “[i]ndividuals may belong to more than one underserved community and face intersecting barriers,” Biden instructed agencies to reconsider job classification and compensation practices because “pay inequity disproportionately affects women of color.”[1]

This encouragement of intersectional analysis is an important step toward recognizing and remedying the realities of intersectional discrimination in the federal government, the private sector and beyond.

What Is Intersectional Analysis?

Law professor Kimberlé Crenshaw first coined the term “intersectionality” more than 30 years ago.

In her now-seminal University of Chicago Legal Forum article,[2] Crenshaw examined employment discrimination against Black women and argued that the law’s artificial delineation of discrimination as either race- or gender-based ignored the fact that Black women could experience discrimination in a multitude of ways:

Black women sometimes experience discrimination in ways similar to white women’s experiences; sometimes they share very similar experiences with Black men. Yet often they experience double-discrimination — the combined effects of practices which discriminate on the basis of race, and on the basis of sex. And sometimes, they experience discrimination as Black women — not the sum of race and sex discrimination, but as Black women.

Courts, Crenshaw asserted, should recognize that Black women’s discrimination claims often lie at the intersection of different biases, and Black women plaintiffs should not be penalized for asserting claims based on multiple protected characteristics.

Crenshaw’s theory has been expanded to apply to other intersecting claims. Disability, national origin, religious, age, sexual orientation and all other forms of discrimination combine with race and gender in ways that are not capable of neat separation.[3]

Studies have confirmed that intersectionality is a legal theory rooted in the actual lived experience of many employees.

For example, many surveys have documented that women of color experience lower career satisfaction, fewer promotions and more unfair compensation than white women or men of color.[4]

Intersectional Analysis in the Courts

Despite this reality, courts in early intersectional discrimination cases declined to recognize that subgroups of workers with multiple protected characteristics were protected under Title VII of the Civil Rights Act, because doing so would “open … the hackneyed Pandora’s box,” in the words of the U.S. District Court for the Eastern District of Missouri’s 1976 decision in Degraffenreid v. General Motors Assembly Division, by creating innumerable new protected classes.[5]

However, the tide has turned after the U.S. Court of Appeals for the Fifth Circuit broke new ground in 1980 in Jefferies v. Harris County Community Action Association, holding that “discrimination against black females can exist even in the absence of discrimination against black men or white women.”[6]

Today, courts routinely find that intersectional claims are viable.

These courts rightly reason, as articulated by the U.S. Court of Appeals for the Sixth Circuit’s 2014 decision in Shazor v. Professional Transit Management, that “Title VII does not permit plaintiffs to fall between two stools when their claim rests on multiple protected grounds,” and that workers with multiple protected characteristics face unique forms of discrimination.[7]

Some courts have more recently relied on the U.S. Supreme Court’s reaffirmation in 2020 in Bostock v. Clayton County that anti-discrimination laws prevent employers from making employment decisions on the basis of sex — even if other factors also influenced the decision.[8]

Accordingly, courts now recognize intersectional claims asserted by Black women,[9] Asian women,[10] older women[11] and Black men.[12]

Lessons for Employers

These cases, as well as our experience, provide several lessons and best practices, outlined below, for employers wanting to identify and address intersectional discrimination and avoid litigation.

Dive into the data.

We often use statistics in litigation to show discrimination, and employers can use the same statistical modeling to identify whether discrimination is occurring, where it is occurring and the extent to which it is harming employees.

In reviewing data, it is important to run multiple comparisons of groups and subgroups to get a fuller picture.

For example, in analyzing discrimination against Black women, employers can compare Black women to white women, and Black women to Black men, but it is likely that a comparison of Black women to white men will more accurately capture the discriminatory effects that women of color experience.

As courts have noted, this comparison is necessary because intersectional discrimination is more than the sum of its parts. For example, Black women are subject to stereotypes and assumptions beyond those stereotypes and assumptions that Black men and white women face.[13]

Make broad comparisons.

Relatedly, in determining whether an individual is experiencing discrimination, we often look at comparators — people who have similar jobs and qualifications, but who do not share the same race, gender or other protected characteristics.

While it may be tempting to dismiss the promotion claims of a Black woman where the organization has several Black men and white women in leadership, these comparisons again fail to capture all the ways that the Black women experience intersectional discrimination.

Overreliance on comparisons that do not account for intersectional discrimination mask reality.

Scrutinize subjectivity.

As lawyers who have represented individuals with intersectional discrimination claims, we find increased discrimination where clear metrics for making personnel decisions are absent.

Discrimination can often be shrouded in “undisciplined system[s] of subjective decisionmaking” for hiring and promotions selection procedures, as the Supreme Court pointed out in 1988 in Watson v. Fort Worth Bank & Trust.[14]

Without clear metrics for making personnel decisions, it is more likely that these decisions stem from bias.

Resume reviews, interviews, hiring, promotions and performance reviews can be highly subjective.

These tools are known to show worse effects on applicants with multiple protected characteristics, rather than a single characteristic.[15]

Employers should consider data collection for all selection procedures, but also take a particularly hard look at those involving subjective criteria.

Train and educate on intersectional discrimination.

In our work, we consistently see managers and peers relying on stereotypes about people with multiple protected characteristics.

Consistent with case law, we know that older women, Black women and Black men are each subject to unique stereotypes and distinct expectations.

For example, many women of color experience “prove-it-again” bias — stereotyping that presumes groups will live up to perceptions about them — in a unique way.

According to a Hastings Law Journal article, studies and surveys show that while “Women and African Americans both need to provide more evidence of competence in order to be seen as equally competent,” this bias is more acute for African-American women.[16]

The first step toward avoiding disparate treatment based on this bias is training workers to recognize these discriminatory assumptions when they arise, and to ensure that they are not the basis for hiring or promotions decisions.

Relatedly, studies show that accountability reduces bias.

Employers can let managers know that their hiring and promotions will be analyzed to determine whether and how individuals with multiple protected characteristics are affected, as accountability has also been shown to minimize the effects of bias.[17]

Conclusion

Building on precedent created by groundbreaking plaintiffs who have pursued and refined intersectional discrimination claims, Biden’s June executive order is one of many signals that intersectional discrimination claims are more viable than ever.

Employers would do well to recognize this reality and take steps to avoid this all too widespread discrimination.


Saba Bireda and Kate Mueting are partners, and James Hannaway is an associate, at Sanford Heisler Sharp LLP.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Exec. Order 14035, 86 Fed. Reg. 34593 (June 30, 2021), available at https://www.whitehouse.gov/briefing-room/presidential-actions/2021/06/25/executive-order-on-diversity-equity-inclusion-and-accessibility-in-the-federal-workforce/.
[2] Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. Chi. Legal F. 139.
[3] Ahmed v. Johnson, 752 F.3d 490, 503 (1st Cir. 2014) is an example of a claim based on “race, religion, or heritage.”
[4] Joan C. Williams, Presentation at National Women’s Law Center, Canary in the mine, Beyond Implicit Bias: Litigating Race and Gender Employment Discrimination Using Data from the Workplace Experiences Survey Workplace Experiences Survey (Mar. 3. 2021) available at https://nwlc.org/wp-content/uploads/2021/03/2021-03-03_Intersectionality-Webinar.pptx.
[5] DeGraffenreid v. Gen. Motors Assembly Div., 413 F. Supp. 142, 143 (E.D. Mo. 1976), aff’d in part, rev’d in part on other grounds, 558 F.2d 480 (8th Cir. 1977).
[6] Jefferies v. Harris Cty Comm’ty Action Ass’n, 615 F.2d 1025, 1032-33 (5th Cir. 1980).
[7] Shazor v. Pro. Transit Mgmt., Ltd., 744 F.3d 948, 958 (6th Cir. 2014).
[8] See, e.g., Frappjed v. Affinity Gaming Black Hawk, LLC, 966 F. 3d 1038, 1048 (10th Cir. 2020).
[9] Id.; Jeffers v. Thompson, 264 F. Supp. 2d 314, 326 (D. Md. 2003).
[10] Lam v. Univ. of Hawai’i, 40 F.3d 1551, 1562 (9th Cir.1994).
[11] Frappied v. Affinity Gaming Black Hawk, LLC, 966 F.3d 1038, 1049 (10th Cir. 2020).
[12] Craig v. Yale Univ. Sch. of Med., 838 F. Supp. 2d 4, 9 (D. Conn. 2011).
[13] Jeffers, 264 F. Supp. 2d at 326.
[14] Watson v. Fort Worth Bank & Tr., 487 U.S. 977, 990 (1988).
[15] Derous, E., & Pepermans, R. (2019). Gender discrimination in hiring: Intersectional effects with ethnicity and cognitive job demands. Archives of Scientific Psychology, 7(1), 40-49. http://dx.doi.org/10.1037/arc0000061 (showing that being a woman and belonging to an ethnic minority group led to lower scores on resume reviews).
[16] Joan C. Williams et. al., Beyond Implicit Bias: Litigating Race and Gender Employment Discrimination Using Data from the Workplace Experiences Survey, 72 Hastings L.J. 337, 354 n.104 (2020) n. 104 (collecting studies).
[17] Madeline E. Heilman, Gender Stereotypes and Workplace Bias, 32 Res. Organizational Behav. 113, 122 (2012).

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