For nearly 60 years, Title VII of the Civil Rights Act of 1964 has firmly controlled and governed claims of workplace discrimination for millions of Americans.

The formula is quite simple:

1. an employee has an adverse action taken against them;

2. because of their race, sex, religion, color, or national origin (protected category or class);¹

3. resulting in damages.

The easiest case to make is one that is straightforward, when a single individual has a single protected characteristic that the employer uses to make a decision.

Below is an example of a simple Title VII or Wisconsin Fair Employment Act² claim:

Bukayo is a Black male who is seeking a job at a local sporting goods store. He responds to a job posting looking for a Soccer Sales Associate. Having been a longtime soccer expert, Bukayo sends in his resume, and soon gets a call back for an interview.

Upon arriving at the store in his best suit with his letters of recommendation with him, he meets the store manager, Harry. Harry, upon seeing Bukayo for the first time, grimaces. The two talk for a bit about Bukayo’s experience, and Harry says “You are the most qualified person to have applied, this is an impressive resume!” Bukayo is beaming with confidence and asks when he can start.

Harry grins, and then the smile fades away. “Unfortunately, most of our customers are white, and I don’t think that they would necessarily trust you to sell them quality equipment at a fair price.”

Bukayo is confused, and asks Harry to elaborate. Harry states “Well, all of our other employees are … ” he pauses, “… local. I’ll have to choose one of our local applicants, even though their qualifications are not nearly as impressive as yours.” Harry goes on to give the open position to a lesser qualified white applicant.

Bukayo’s claim is clear:

• he had an adverse action taken against him by Harry failing to hire him;

• the failure to hire was because of his race or color; and

• he was denied a job, and thus income, because of the adverse action.

It does not take an expert labor and employment attorney to determine Bukayo was subject to discrimination, because Bukayo was denied a job on the basis that he is a member protected class when Harry hired the less qualified white person rather than Bukayo, who was the more qualified candidate.

Intersectional Discrimination: When Two or More Protected Classes are Involved

But, in the workplace, most situations are less clear. What happens if the job for which Bukayo is clearly the most qualified is offered instead to a Black woman instead?

Enter “intersectional discrimination.”

Because two or more protected classes can combine to create a single stereotype or discriminatory animus, a new standard should be applied to evaluate discrimination claims under an intersectional discrimination framework.

In the example above, Harry harbors a discriminatory belief that this his clientele may not intrinsically trust a Black salesman in the same way that his clientele would tend to trust white male salesperson or female salespersons of any race.

In this situation, it is not simply because Bukayo is Black that he did not get the job (a Black woman was hired), nor is it simply because he is male (white men already work there). Instead, it is the intersection between his sex and race that caused the negative employment action.

A widely known intersection of protected classes is that of Black women. The “angry black woman” stereotype negatively impacts Black women, especially those in white collar professions.³ When a Black woman speaks out in a meeting, or is stern with the team of individuals that she is supervising, her supervisors may give into explicit or implicit bias and see her as “loud,” “erratic,” “uncontrollable,” or “full of attitude.”⁴

However, when a white woman or a Black man uses the same techniques or phrasing, they are seen as running a tight ship, and as leaders who get the most out of their subordinates.

The true discrimination happens because the Black woman is both Black and a woman.

The Fifth Circuit is credited with identifying such claims in Jeffries v. Harris County Community Action Ass’n.⁵ In the early years of intersectionality claims, courts relied on “plus” verbiage to firmly categorize the claims into a protected class. For example, the plaintiff in Phillips v. Martin Marietta Corp. filed claims under a theory of “sex-plus” due to a company policy of rejecting female applicants with pre-school aged children, while also hiring men with the same aged children.⁶ Importantly, having pre-school aged children is not in itself a protected class, hence “sex-plus.”

Intersectional claims extend those protections to individuals who are discriminated against on two protected bases.

Seeing the Individual, Not the Class

In the past, courts have attempted to marshal intersectional claims in order to cleanly place plaintiffs into one of the five protected classes. This approach was intended to avoid Title VII becoming a “many-headed Hydra” by combining each possible race, religion, national origin, color, and sex.⁷

This allegorical interpretation of discrimination claims has not been without its detractors. Some believe that the Judge v. Marsh line of thought is preventive to the overarching goal of Title VII, preventing unlawful discriminatory practices.⁸

Simply put, the effectuation of intersectional theory is a means to an end that will ultimately allow punitive measures to be taken against those who discriminate.

It may be easiest to consider intersectional discrimination through the lens of the individual instead of the class of individuals. “It is sometimes mistakenly thought that the Black male experience represents a mere racial variation on the white male experience and that Black men suffer from discrimination only because they are Black.”⁹

If a Black male and Black female have different employment experiences, it is still possible that one or both have suffered from discriminatory actions on the basis of their combined traits.

The distinct stereotypes associated with those combined traits are the essence of intersectional discrimination claims.

Using Intersectional Discrimination Theory

At its core, the theory of intersectional discrimination serves two main purposes:

• allowing plaintiffs to be more specific when pinpointing and describing the alleged discriminatory actions or harassment; and

• evolving the understanding of what constitutes a “comparator employee” – that is, an individual used as a baseline for how the employer treats their employees.¹⁰

Using the example above in the traditional “comparator” context, if a Black woman was offered the job to work along the existing white male employees, that would be strong evidence for the employer to argue no protected class discrimination occurred – it employes both men and Blacks.

But with intersectional discrimination cases on the rise, Bukayo will have the opportunity to show the courts that it was the combination of his two traits – which no other comparison employee has – that caused him to lose the job despite being the most qualified.

It is absolutely crucial that an attorney discuss intersectional comparator categories with their client to firmly grasp what evidence of discrimination may be available during litigation.

In some cases, an evaluation of both comparator classes may be the deciding factor in articulating a successful prima facie case.

Additionally, the popularity of intersectional discrimination claims almost assuredly will rise along with the general public’s knowledge of intersectional theory. More Americans Googled “Intersectionality” in February 2023 than any other month prior, whereas the more general phrase “workplace discrimination” peaked in April 2010.¹¹

There is little question then, that the public (and soon the legal profession) will begin to understand and focus on intersectional discrimination in the coming years and decades.

Conclusion: Serving Your Clients Best

Given the rise in popularity that intersectional discrimination theory has experienced in the general public, it almost goes without saying that attorneys need to know how to describe the elements of the claims as well as effectuate the power of Title VII to best serve their clients.

Undoubtedly, the popularity of such claims will increase over time, leading to changes for both plaintiff and management-side attorneys.

The author wishes to thank his law clerk, Jude Witkowski, Marquette 2024, who helped with initial editing and redlining.

This article was originally published on the State Bar of Wisconsin’s Labor & Employment Law Section Blog. Visit the State Bar sections or the Labor & Employment Law Section webpages to learn more about the benefits of section membership.

Endnotes

¹ 42 U.S.C. 2000e. Importantly, the use of the word “or” is evidence that Congress’ intent is to prohibit discrimination because of any or all of the listed characteristics. The U.S. House of Representatives refused to adopt an amendment to the Act that would have made each protected category separate from the others. 110 Cong. Rec. 2728 (1964).

² For purposes of discrimination claims, the Wisconsin Fair Employment Act (AFEA) mirrors the elements of proof required by the ADA. Wis. Stat. § 111.322. Moore v. LIRC, 175 Wis. 2d 561, 499 N.W. 2d 289 (Ct. App. 1993).

³ See Trina Jones & Kimberly Jade Norwood, “Aggressive Encounters & White Fragility: Deconstructing the Trope of the Angry Black Woman,” 102 Iowa L. Rev. 2017 (2016-17).

⁴ Id. at 2044.

⁵ Jeffries v. Harris County Community Action Ass’n, 615 F.2d 1025 (5th Cir. 1980).

⁶ See Phillips v. Martin Marietta Corp., 400 U.S. 542, 91 S.Ct. 496 (1971).

⁷ Judge v. Marsh, 649 F.Supp. 770, 780 (D.D.C. 1986)

⁸ Floyd D. Weatherspoon, “Remedying Employment Discrimination Against African-American Males: Stereotypical Biases Engender a Case of Race Plus Sex Discrimination,” 36 Washburn L.J. 23, 41 (1996).

⁹ Jesse B. Semple, Note, “Invisible Man: Black Male Under Title VII,” 104 Harv. L. Rev. 749, 751 (1990-91). See also Kimble v. Wisconsin Dept. of Workforce Development, 690 F.Supp.2d 765, 770 (E.D. Wis. 2010). A special thank you to Atty. Brenda Lewison – who helped litigate this case – for providing research assistance.

¹⁰ See Coleman v. Donahoe, 667 F.3d 835 (7^th Cir. 2012) (The plaintiff, a Black woman, presented evidence that two white male employees were “disciplined by the same decisionmaker, subject to the same code of conduct, and disciplined more leniently for violating the same rule as she,” enough to provide for a meaningful comparison.)

¹¹ Google Trends, “Intersectionality, Work Discrimination,” retrieved April 17, 2023.