RACE AND SEX IN ANTIDISCRIMINATION LAW

Over the past few decades, federal courts have developed fairly well-defined legal frameworks for the adjudication of racial discrimination claims and sex discrimination claims. But what if a plaintiff asserts that her employer discriminated against her based on both her race and her sex? What constitutional framework applies: a race discrimination framework, a sex discrimination framework, or something else? Are discrimination claims combining race and sex even constitutionally cognizable? Consider the following hypothetical case.

Mary Lo, a single mother, is an Asian American female employee of the California Department of Water Resources (CDWR), an entity of the state of California. Mary has a master's degree in civil engineering, and she has been employed as a CDWR engineer for eight years. Within the past three years, Mary has applied for promotions to supervisory positions three times. Each time Mary responded to a notice listing the opening after determining that she met the stated qualifications for the job.

After interviewing for the position, Mary was denied the promotion on each occasion. The first time, an Asian American man was promoted. The two subsequent openings were filled by white women. All three had either less work experience or fewer certifications than Mary. In addition to not receiving these promotions, Mary has been disciplined on several occasions for arriving at work late and for taking unauthorized sick days when her children were ill. The only other employee to suffer such reproach is another Asian American female. However, there is no evidence of explicit animus against Mary or other Asian American females.

According to Mary, CDWR's denial of her promotion was discriminatorily motivated. More specifically, Mary's contention is that CDWR did not promote her because she is an Asian American woman. As a general matter, the law requires a plaintiff like Mary to think about her discrimination as arising from her (perceived) national origin, her status as a woman, or her race as an Asian American. However, Mary wants to argue that CDWR does not view her as either a female or as an Asian American or as a foreigner. She is convinced that all three of these aspects of her identity (her race, her gender, and her perceived national origin) shape CDWR's interaction with her.

Broadly speaking, there are two legal routes Mary can take to challenge her employer's decision to deny her promotion—one statutory, the other constitutional. First, she can claim employment discrimination under Title VII, a federal statute prohibiting private and public employment discrimination. Second, Mary can claim that the state has denied her equal protection of the laws in violation of the fourteenth amendment. This second option is available to Mary because her employer is a governmental entity. Let us first examine Mary's claim under Title VII; Title VII jurisprudence includes a small body of opinions that directly address the question of whether a plaintiff like Mary may bring a combined race-and-sex employment discrimination claim.

Courts initially viewed claims alleging race-and-sex discrimination brought under Title VII as distinct and independent claims. For example, in Degraffenreid v. General Motors Assembly Division (1976), the U.S. District Court for the Eastern District of Missouri held that plaintiffs may argue race discrimination and sex discrimination separately or in the alternative, but they may not argue race-and-sex discrimination as one claim. In Degraffenreid, a group of black female employees invoked Title VII to advance a disparate impact theory of discrimination. They alleged that General Motors's seniority system disproportionately affected black women. Prior to 1964, General Motors did not hire any black women at all. Those who were hired after 1964 all lost their jobs as part of a work-force reduction by General Motors. Because black women were the last to be hired, they were the first to be fired.

The Degraffenreid court granted summary judgment for the defendants. It explained that although the black female plaintiffs could argue that General Motors discriminated against them based on their race (i.e., the fact that they are black) or based on their sex (i.e., the fact that they are women), they were not permitted to argue that General Motors discriminated against them based on their race and sex (i.e., the fact that they are black women). The court reasoned that

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 mathematical principles of permutation and combination, clearly raises the prospect of opening the hackneyed Pandora's box.

There are at least two ways to understand the court's analysis here. The court might be suggesting that Congress did not contemplate that black women could be discriminated against as black women. Alternatively, the court could be saying that even to the extent that black women experience discrimination that neither black men nor nonblack women experience, Congress did not intend to protect them. Either way, the court's conclusion is that plaintiffs may not aggregate their race and sex discrimination claims. Having reframed the plaintiffs' case as alleging separate claims of race discrimination and sex discrimination, the court found evidence of neither. Black men were not discriminated against, which undermined the notion that there was race discrimination, and white women were not discriminated against, which undermined the notion that there was sex discrimination.

Unlike the plaintiffs in Degraffenreid, Mary, our hypothetical plaintiff, would be asserting a disparate treatment, as opposed to a disparate impact, theory of discrimination. Her argument is not that CDWR employs neutral employment criteria that disproportionately burden Asian American women. Rather, her contention is that she is being treated differently (hence the term "disparate treatment") because she is an Asian American female. Under the Degraffenreid standard, Mary's claim would not survive the defendant's motion for summary judgment. To establish a prima facie case of discrimination under a disparate treatment theory, Mary would have to establish that (1) she belongs to a group protected by Title VII, (2) she applied and was qualified for a job for which the employer was seeking applicants, (3) despite her qualifications, she was rejected, and (4) after her rejection the position remained open and the employer continued to seek applicants among persons having the plaintiff's qualifications. Should Mary succeed in establishing a prima facie case, the burden would shift to her employer to set forth a legitimate, nondiscriminatory reason for not promoting her. If CDWR makes this showing, the burden shifts back to Mary to prove that CDWR's articulated reason was a pretext for discrimination.

Mary would likely succeed in establishing a prima facie case of discrimination. Both race and gender are protected categories under Title VII, and Mary was more than qualified for the position she applied for. However, it is generally not very difficult for employers to articulate a "legitimate" reason for not promoting particular employees. In Mary's case, CDWR might point to Mary's tardiness and her unauthorized sick days. Mary will have a hard time proving that these justifications are a pretext for discrimination. Why? Because CDWR promoted white women and an Asian American man.

One of the problems with Degraffenreid 's antidiscrimination framework is that it fails to address what might be referred to as compound discrimination. All of us have "compounded identities" comprised of our race, our gender, our sexual orientation, and so on. How we experience discrimination is shaped by the way in which our identities are compounded. Black men and black women do not experience race discrimination in the same way, because of their gender difference. White women and black women do not experience sex discrimination in the same way, because of their racial difference. Yet, under Degraffenreid, black women are entitled to Title VII protection only to the extent that their discriminatory experiences comport with the discriminatory experiences of either white women or black men. The court's failure in Degraffenreid to acknowledge that black women experience compound discrimination based on their race and sex together results in an antidiscrimination framework that privileges the experiences of white women and black men.

In some sense, the employment of the concept "compound discrimination" is problematic. It suggests that our identities and the discrimination we experience are additive. This is not exactly true. Think again of our hypothetical plaintiff, Mary Lo. She is subject to discrimination based on stereotypes that attach to Asian American women. These stereotypes are different from those that attach to Asian men and different from those that attach to white women. Nor are the stereotypes that Asian American women face the sum of Asian American male and white female stereotypes. The "compound discrimination" metaphor is employed here to convey the idea that the discriminatory experiences of women of color—including Asian American women—are shaped by the interaction (not addition) of racism and sexism and that the Degraffenreid antidiscrimination framework fails to take this into account.

The Degraffenreid approach to antidiscrimination has not gone unchallenged, however. One of the first decisions to the contrary was Jefferies v. Harris County Community Action Association (1980). In Jefferies, a black woman made claims of race-and-sex discrimination arising out of the defendant's failure to promote her and its decision to terminate her. The positions for which she applied were filled by black men and nonblack women. When the trial court dismissed her claims, she appealed, arguing that the court had erred in refusing to consider her claim of compound discrimination based on race and sex. The U.S. Court of Appeals for the Fifth Circuit agreed. In accepting Jefferies's compound discrimination claim, the Fifth Circuit adopted the "sex-plus" analysis established by the Supreme Court in Phillips v. Martin Marietta Corporation (1971). In Phillips, the Court held that the disparate treatment of a subclass of one sex can violate Title VII. The term "sex-plus" refers to situations in which employers discriminate by coupling a nonprotected factor (in the Phillips case, having preschool-age children) with a protected one (sex). The Court held that this type of discrimination was actionable under Title VII even if women in general and men with preschool-age children were not discriminated against.

The Jefferies court analyzed the plaintiff's "sex-plus-race" claim by characterizing her as a woman who, because of a secondary consideration, race, was treated differently. The court recognized that "discrimination against black females can exist even in the absence of discrimination against black men or white women." Title VII provides a remedy for such discrimination, the Jefferies court reasoned, because of the wording of the statute and its legislative history. Title VII forbids discrimination on the basis of an employee's "race, color, religion, sex, or national origin." Because Congress used the word "or," the court reasoned that it intended to include discrimination based on any or all of the listed characteristics. Moreover, Congress explicitly rejected a revision to the statute which would have added the word "solely" before the word "sex." The court viewed this rejection as signifying an intention to allow plaintiffs to aggregate their claims.

Although the sex-plus framework improves on the Degraffenreid race or sex framework, it nevertheless presents several important problems. First, it requires plaintiffs to argue that their race is a subordinate reason for discrimination based on gender. The sex-plus analysis treats discrimination as being drawn purely on gender lines but operating to discriminate against a certain subset of women.

Second, the sex-plus analysis equates race discrimination with other "pluses" such as marital or familial status. Equating race with other pluses ignores the fact that race itself, unlike marital or familial status, is a classification explicitly protected under Title VII.

Third, the sex-plus framework limits the number of characteristics a plaintiff can allege as contributing to her employer's discrimination. Specifically, plaintiffs are permitted to add only one "plus" to their sex discrimination claim. Thus, in Mary's case, if she alleges discrimination based on her race as a "plus" to discrimination based on her sex, she cannot add factors such as (perceived) national origin, single motherhood, or both.

A recent decision of the U.S. Court of Appeals for the Ninth Circuit takes a small step toward eliminating some of these difficulties. In Lam v. University of Hawai'i (1994), the plaintiff, an Asian American woman, invoked Title VII to allege race, sex, and national origin discrimination after she was turned down twice for a job as a law professor at the University of Hawaii. The Ninth Circuit explicitly rejected the district court's separate treatment of race and sex, arguing that an antidiscrimination framework that examines racism "alone" or sexism "alone" is impoverished. Significantly, the Ninth Circuit's compound discrimination approach is not based on Jefferies 's sex-plus analysis. Lam 's move away from (or noninvocation of) the sex-plus framework creates a jurisprudential window for plaintiffs to base their discrimination claims on the aggregation of several aspects of their identity. Still, it remains to be seen what impact Lam will have on future Title VII litigation.

Having looked at how Mary's sex-and-race compound discrimination claim would be adjudicated under Title VII, let us now turn to the Constitution. Mary would base her constitutional claim on the equal protection clause of the Fourteenth Amendment. Unlike plaintiffs claiming discrimination under Title VII, plaintiffs asserting an equal protection violation have only one path available to them; they must prove that the government is engaged in intentional discrimination. Intentional sex-based discrimination by the government is unconstitutional unless it passes what is referred to as "intermediate scrutiny." Sex-based discrimination survives intermediate scrutiny if it is substantially related to an important governmental objective. The government is not absolutely barred from discriminating against individuals based on sex, then, but it must justify that discrimination by reference to an important objective.

The Constitution regulates racial discrimination in a similar, though stricter, way. Intentional race-based governmental discrimination is unconstitutional unless it passes what is referred to as strict scrutiny. Race-based discrimination passes strict scrutiny if it serves a compelling state interest and is narrowly tailored to meet that interest.

This is the constitutional framework Mary would face should she decide to bring an equal protection discrimination claim against CDWR. This framework invites us to think about at least the following three questions: (1) Would Mary succeed in establishing a case of intentional discrimination based either on race or sex? (2) Would Mary's race-and-sex compound discrimination be constitutionally cognizable? (3) If Mary were permitted to assert a race-and-sex compound discrimination claim and she ultimately established the claim, what level of judicial scrutiny would apply: intermediate scrutiny (which applies to sex discrimination), strict scrutiny (which applies to race discrimination), or something else?

With respect to the first question, it is unlikely that Mary has enough evidence to prove intentional discrimination based either on sex or race alone. The CDWR was not overtly racist or sexist in denying Mary the promotion. Nor does CDWR have an express policy of sex or race discrimination. In the absence of such "smoking gun" evidence, it would be very difficult for Mary to convince a court that CDWR intentionally discriminated against her. The case would come down to circumstantial evidence. At this point, the court is likely to look at the people who were promoted. And if Asian American men fared well and white women fared well, the court may decide that there is no triable issue of fact—that is to say, grant summary judgment for the defendant.

But what if Mary asserted a race-and-sex compound discrimination claim? First, would such a claim be constitutionally cognizable? And second, would she be able to prove it? The answer to the first question is unclear. The issue has arisen—at least implicitly—in context of section 1983 litigation. section 1983, title 42, u. s. code is a federal statute that provides civil and criminal remedies for violations of constitutional and certain federal statutory rights. Plaintiffs bringing a section 1983 claim must demonstrate that (1) a person acting under the color of law (2) committed an act that deprived her of some right, privilege, or immunity protected by the Constitution or federal law. Since Mary is arguing that her constitutional rights were violated, she may invoke section 1983. Significantly, Mary still has the burden of establishing the underlying constitutional deprivation; namely, that CDWR violated her right to equal protection.

There are few judicial opinions adjudicating compound discrimination claims under section 1983. One reason is that redress under section 1983 for equal protection violations is limited to plaintiffs whose employers are state agencies (or, can show state action) and those who can meet the burden of proving intentional discrimination.

Despite the dearth of published opinions analyzing compound discrimination claims under section 1983, two district court opinions offer plaintiffs some hope. In Anthony v. County of Sacramento (1995), a federal trial court, relying on Lam, implicitly suggested that plaintiffs advancing an equal protection argument under section 1983 may combine their race and sex discrimination claims. And in Tennie v. City of New York Department of Social Services of the New York City Human Resources Administration (1987), a federal trial court refused to certify a class that included whites, blacks, and hispanics of both sexes. The court reasoned that female minority women—when compared to white women and men of color—had different discrimination claims under both Title VII and the equal protection clause because of their vulnerability to racism and sexism.

Tennie and Anthony notwithstanding, the ability of plaintiffs to bring constitutional race-and-sex compound discrimination claims under the equal protection clause remains unclear. The Supreme Court has not spoken definitively on this issue. Moreover, at least one federal appeals court opinion, Lowe v. City of Monrovia (1985), decided before Tennie and Anthony, suggested that in order to prevail under a section 1983 claim alleging race and sex discrimination, the plaintiff "must first prove that the defendants purposefully discriminated against her either because of her race or her sex."

Assuming that compound race-and-sex discrimination claims are constitutionally cognizable, does Mary have a viable claim? Probably not. She would not be able to point to sufficient evidence to demonstrate that CDWR intentionally discriminated against her because she is an Asian American woman. Is there any evidence that CDWR might have discriminated against Mary? Recall that Mary was reprimanded for taking sick days and for tardiness, and that the only other employee to suffer such reproach is another Asian American female. These facts are certainly probative of discriminatory intent, but, without more, they do not demonstrate that CDWR denied Mary the promotion because she is an Asian American woman.

A final equal protection issue raised by compound race-and-sex discrimination claims is the applicable level of scrutiny. Some commentators have suggested that the Supreme Court's decision in united states v. virginia (1996) has effectively nudged the standard of review for sex discrimination toward strict scrutiny. Irrespective of this consideration, however, a strong argument can be made that at least strict scrutiny should apply. In other words, should the government engage in compound race-and-sex discrimination against, for example, black women, such discrimination would be deemed unconstitutional unless it served a compelling state interest and was narrowly tailored to meet that interest. At least two theories could be advanced to support this argument: (1) a "double bind" theory of discrimination—that black women, because they occupy at least two subordinate identities (women and blacks), experience a double-discrimination (sexism and racism), and (2) a " discrete and insular minority " theory—that black women have historically been discriminated against, subject to pervasive stereotypes, and denied meaningful access to the political process.

Of course, neither of these theories renders uncontroversial the notion that black women should be treated as a distinct class in equal protection analysis. There are "slippery slope" concerns: If black women are deemed a cognizable class for equal protection purposes and are entitled to strict scrutiny protection, there may be no stopping point. As it turns out, however, the slope is not nearly so slippery as it might appear to be. There is a limiting principle: a group seeking strict scrutiny protection based on a compound theory of discrimination could be required to demonstrate historical discrimination, discreteness and insularity, and political powerlessness. This limiting principle is already a part of our equal protection jurisprudence. To the extent that other compound identities, for example, Mexican American women, are able to satisfy this test, there is no good reason to deny them strict scrutiny protection.

Devon W. Carbado
(2000)

Bibliography

Carbado, Devon W. 1999 Introduction. Black Men on Race, Gender, & Sexuality: A Critical Reader. New York: New York University Press.

Crenshaw, KimberlÉ 1989 Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics. University of Chicago Legal Forum 1989:139–142.

Trent, Judy Scales 1989 Black Women and the Constitution: Finding Our Place, Asserting Our Rights (Voices of Experience: New Responses to Gender Discourse). Harvard Civil Rights–Civil Liberties Law Review 9:23–27.