University of Chicago Legal Forum

Volume 1989 | Issue 1 Article 8

Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics Kimberle Crenshaw [email protected]

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Recommended Citation Crenshaw, Kimberle () "Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics," University of Chicago Legal Forum: Vol. 1989: Iss. 1, Article 8. Available at: http://chicagounbound.uchicago.edu/uclf/vol1989/iss1/8

Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist

Theory and Antiracist Politics Kimberle Crenshawt

One of the very few Black women's studies books is entitled All the Women Are White; All the Blacks Are Men, But Some of Us are Brave.1 I have chosen this title as a point of departure in my efforts to develop a Black feminist criticism 2 because it sets forth a problematic consequence of the tendency to treat race and gender as mutually exclusive categories of experience and analysis.' In this talk, I want to examine how this tendency is perpetuated by a single-axis framework that is dominant in antidiscrimination law and that is also reflected in feminist theory and antiracist politics.

I will center Black women in this analysis in order to contrast the multidimensionality of Black women's experience with the sin- gle-axis analysis that distorts these experiences. Not only will this juxtaposition reveal how Black women are theoretically erased, it will also illustrate how this framework imports its own theoretical limitations that undermine efforts to broaden feminist and an-

t Acting Professor of Law, University of California, Los Angeles Law School. Gloria T. Hull, et al, eds (The Feminist Press, 1982). For other work setting forth a Black feminist perspective on law, see Judy Scales-

Trent, Black Women and the Constitution: Finding Our Place, Asserting Our Rights (Voices of Experience: New Responses to Gender Discourse), 24 Harv CR-CL L Rev 9 (1989); Regina Austin, Sapphire-Bound!, forthcoming in Wisc Women's L J (1989); Angela Harris, Race and Essentialism in Feminist Legal Theory (unpublished manuscript on file with author); and Paulette M. Caldwell, A Hair Piece (unpublished manuscript on file with author).

The most common linguistic manifestation of this analytical dilemma is represented in the conventional usage of the term "Blacks and women." Although it may be true that some people mean to include Black women in either "Blacks" or "women," the context in which the term is used actually suggests that often Black women are not considered. See, for example, Elizabeth Spelman, The Inessential Woman 114-15 (Beacon Press, 1988) (discuss- ing an article on Blacks and women in the military where "the racial identity of those iden- tified as 'women' does not become explicit until reference is made to Black women, at which point it also becomes clear that the category of women excludes Black women"). It seems that if Black women were explicitly included, the preferred term would be either "Blacks and white women" or "Black men and all women."

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tiracist analyses. With Black women as the starting point, it be- comes more apparent how dominant conceptions of discrimination condition us to think about subordination as disadvantage occur- ring along a single categorical axis. I want to suggest further that this single-axis framework erases Black women in the conceptual- ization, identification and remediation of race and sex discrimina- tion by limiting inquiry to the experiences of otherwise-privileged members of the group. In other words, in race discrimination cases, discrimination tends to be viewed in terms of sex- or class-privi- leged Blacks; in sex discrimination cases, the focus is on race- and class-privileged women.

This focus on the most privileged group members marginalizes those who are multiply-burdened and obscures claims that cannot be understood as resulting from discrete sources of discrimination. I suggest further that this focus on otherwise-privileged group members creates a distorted analysis of racism and sexism because the operative conceptions of race and sex become grounded in ex- periences that actually represent only a subset of a much more complex phenomenon.

After examining the doctrinal manifestations of this single- axis framework, I will discuss how it contributes to the marginal- ization of Black women in feminist theory and in antiracist polit- ics. I argue that Black women are sometimes excluded from femi- nist theory and antiracist policy discourse because both are predicated on a discrete set of experiences that often does not ac- curately reflect the interaction of race and gender. These problems of exclusion cannot be solved simply by including Black women within an already established analytical structure. Because the in- tersectional experience is greater than the sum of racism and sex- ism, any analysis that does not take intersectionality into account cannot sufficiently address the particular manner in which Black women are subordinated. Thus, for feminist theory and antiracist policy discourse to embrace the experiences and concerns of Black women, the entire framework that has been used as a basis for translating "women's experience" or "the Black experience" into concrete policy demands must be rethought and recast.

As examples of theoretical and political developments that miss the mark with respect to Black women because of their failure to consider intersectionality, I will briefly discuss the feminist cri- tique of rape and separate spheres ideology, and the public policy debates concerning female-headed households within the Black community.

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I. THE ANTIDISCRIMINATION FRAMEWORK

A. The Experience of Intersectionality and the Doctrinal Response

One way to approach the problem of intersectionality is to ex- amine how courts frame and interpret the stories of Black women plaintiffs. While I cannot claim to know the circumstances under- lying the cases that I will discuss, I nevertheless believe that the way courts interpret claims made by Black women is itself part of Black women's experience and, consequently, a cursory review of cases involving Black female plaintiffs is quite revealing. To illus- trate the difficulties inherent in judicial treatment of intersection- ality, I will consider three Title VIP cases: DeGraffenreid v Gen- eral Motors,5 Moore v Hughes Helicopter6 and Payne v Travenol.'

1. DeGraffenreid v General Motors. In DeGraffenreid, five Black women brought suit against Gen-

eral Motors, alleging that the employer's seniority system perpetu- ated the effects of past discrimination against Black women. Evi- dence adduced at trial revealed that General Motors simply did not hire Black women prior to 1964 and that all of the Black women hired after 1970 lost their jobs in a seniority-based layoff during a subsequent recession. The district court granted summary judgment for the defendant, rejecting the plaintiffs' attempt to bring a suit not on behalf of Blacks or women, but specifically on behalf of Black women. The court stated:

[P]laintiffs have failed' to cite any decisions which have stated that Black women are a special class to be pro- tected from discrimination. The Court's own research has failed to disclose such a decision. The plaintiffs are clearly entitled to a remedy if they have been discrimi- nated against. However, they should not be allowed to combine statutory remedies to create a new 'super-rem- edy' which would give them relief beyond what the draft- ers of the relevant statutes intended. Thus, this lawsuit must be examined to see if it states a cause of action for race discrimination, sex discrimination, or alternatively either, but not a combination of both.'

Civil Rights Act of 1964, 42 USC § 2000e, et seq as amended (1982). ' 413 F Supp 142 (E D Mo 1976). 6 708 F2d 475 (9th Cir 1983). 7 673 F2d 798 (5th Cir 1982). 8 DeGraffenreid, 413 F Supp at 143.

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Although General Motors did not hire Black women prior to 1964, the court noted that "General Motors has hired … female employees for a number of years prior to the enactment of the Civil Rights Act of 1964."' Because General Motors did hire women-albeit white women-during the period that no Black women were hired, there was, in the court's view, no sex discrimi- nation that the seniority system could conceivably have perpetuated.

After refusing to consider the plaintiffs' sex discrimination claim, the court dismissed the race discrimination complaint and recommended its consolidation with another case alleging race dis- crimination against the same employer. 10 The plaintiffs responded that such consolidation would defeat the purpose of their suit since theirs was not purely a race claim, but an action brought specifi- cally on behalf of Black women alleging race and sex discrimina- tion. The court, however, reasoned:

The legislative history surrounding Title VII does not in- dicate 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, gov- erned only by the mathematical principles of permuta- tion and combination, clearly raises the prospect of open- ing the hackneyed Pandora's box."

Thus, the court apparently concluded that Congress either did not contemplate that Black women could be discriminated against as "Black women" or did not intend to protect them when such discrimination occurred. 2 The court's refusal in DeGraffenreid to

Id at 144.

10 Id at 145. In Mosley v General Motors, 497 F Supp 583 (E D Mo 1980), plaintiffs,

alleging broad-based racial discrimination at General Motors' St. Louis facility, prevailed in a portion of their Title VII claim. The seniority system challenged in DeGraffenreid, how- ever, was not considered in Mosley.

" Id at 145.. " Interestingly, no case has been discovered in which a court denied a white male's

attempt to bring a reverse discrimination claim on similar grounds-that is, that sex and race claims cannot be combined because Congress did not intend to protect compound clas- ses. White males in a typical reverse discrimination case are in no better position than the frustrated plaintiffs in DeGraffenreid: If they are required to made their claims separately, white males cannot prove race discrimination because white women are not discriminated against, and they cannot prove sex discrimination because Black males are not discrimi- nated against. Yet it seems that courts do not acknowledge the compound nature of most reverse discrimination cases. That Black women's claims automatically raise the question of compound discrimination and white males' "reverse discrimination" cases do not suggest

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acknowledge that Black women encounter combined race and sex discrimination implies that the boundaries of sex and race discrim- ination doctrine are defined respectively by white women's and Black men's experiences. Under this view, Black women are pro- tected only to the extent that their experiences coincide with those of either of the two groups.'" Where their experiences are distinct, Black women can expect little protection as long as approaches, such as that in DeGraffenreid, which completely obscure problems of intersectionality prevail.

2. Moore v Hughes Helicopter, Inc.. Moore v Hughes Helicopters, Inc." presents a different way in

which courts fail to understand or recognize Black women's claims. Moore is typical of a number of cases in which courts refused to certify Black females as class representatives in race and sex dis- crimination actions.' 5 In Moore, the plaintiff alleged that the em- ployer, Hughes Helicopter, practiced race and sex discrimination in promotions to upper-level craft positions and to supervisory jobs. Moore introduced statistical evidence establishing a signifi- cant disparity between men and women, and somewhat less of a disparity between Black and white men in supervisory jobs.'6

that the notion of compoundedness is somehow contingent upon an implicit norm that is not neutral but is white male. Thus, Black women are perceived as a compound class be- cause they are two steps removed from a white male norm, while white males are apparently not perceived to be a compound class because they somehow represent the norm.

13 I do not mean to imply that all courts that have grappled with this problem have adopted the DeGraffenreid approach. Indeed, other courts have concluded that Black women are protected by Title VII. See, for example, Jefferies v Harris Community Action Ass'n., 615 F2d 1025 (5th Cir 1980). I do mean to suggest that the very fact that the Black women's claims are seen as aberrant suggests that sex discrimination doctrine is centered in the experiences of white women. Even those courts that have held that Black women are protected seem to accept that Black women's claims raise issues that the "standard" sex discrimination claims do not. See Elaine W. Shoben, Compound Discrimination: The Inter- action of Race and Sex in Employment Discrimination, 55 NYU L Rev 793, 803-04 (1980) (criticizing the Jefferies use of a sex-plus analysis to create a subclass of Black women).

" 708 F2d 475. " See also Moore v National Association of Securities Dealers, 27 EPD (CCH) 32,238

(D DC 1981); but see Edmondson v Simon, 86 FRD 375 (N D 111 1980) (where the court was unwilling to hold as a matter of law that no Black female could represent without conflict the interests of both Blacks and females).

16 708 F2d at 479. Between January 1976 and June 1979, the three years in which Moore claimed that she was passed over for promotion, the percentage of white males occu- pying first-level supervisory positions ranged from 70.3 to 76.8%; Black males from 8.9 to 10.9%; white women from 1.8 to 3.3%; and Black females from 0 to 2.2%. The overall male/ female ratio in the top five labor grades ranged from 100/0% in 1976 to 98/1.8% in 1979. The white/Black ratio was 85/3.3% in 1976 and 79.6/8% in 1979. The overall ratio of men to women in supervisory positions was 98.2 to 1.8% in 1976 to 93.4 to 6.6% in 1979; the Black to white ratio during the same time period was 78.6 to 8.9% and 73.6 to 13.1%

For promotions to the top five labor grades, the percentages were worse. Between 1976

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Affirming the district court's refusal to certify Moore as the class representative in the sex discrimination complaint on behalf of all women at Hughes, the Ninth Circuit noted approvingly:

… Moore had never claimed before the EEOC that she was discriminated against as a female, but only as a Black female . . . . [T]his raised serious doubts as to Moore's ability to adequately represent white female employees."

The curious logic in Moore reveals not only the narrow scope of antidiscrimination doctrine and its failure to embrace intersection- ality, but also the centrality of white female experiences in the conceptualization of gender discrimination. One inference that could be drawn from the court's statement that Moore's complaint did not entail a claim of discrimination "against females" is that discrimination against Black females is something less than dis- crimination against females. More than likely, however, the court meant to imply that Moore did not claim that all females were discriminated against but only Black females. But even thus re- cast, the court's rationale is problematic for Black women. The court rejected Moore's bid to represent all females apparently be- cause her attempt to specify her race was seen as being at odds with the standard allegation that the employer simply discrimi- nated "against females."

The court failed to see that the absence of a racial referent does not necessarily mean that the claim being made is a more inclusive one. A white woman claiming discrimination against fe- males may be in no better position to represent all women than a Black woman who claims discrimination as a Black female and wants to represent all females. The court's preferred articulation of "against females" is not necessarily more inclusive-it just appears to be so because the racial contours of the claim are not specified.

The court's preference for "against females" rather than "against Black females" reveals the implicit grounding of white fe- male experiences in the doctrinal conceptualization of sex discrimi- nation. For white women, claiming sex discrimination is simply a statement that but for gender, they would not have been disadvan- taged. For them there is no need to specify discrimination as white

and 1979, the percentage of white males in these positions ranged from 85.3 to 77.9%; Black males 3.3 to 8%; white females from 0 to 1.4%, and Black females from 0 to 0%. Overall, in 1979, 98.2% of the highest level employees were male; 1.8% were female.

" 708 F2d at 480 (emphasis added).

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females because their race does not contribute to the disadvantage for which they seek redress. The view of discrimination that is de- rived from this grounding takes race privilege as a given.

Discrimination against a white female is thus the standard sex discrimination claim; claims that diverge from this standard ap- pear to present some sort of hybrid claim. More significantly, be- cause Black females' claims are seen as hybrid, they sometimes cannot represent those who may have "pure" claims of sex discrim- ination. The effect of this approach is that even though a chal- lenged policy or practice may clearly discriminate against all fe- males, the fact that it has particularly harsh consequences for Black females places Black female plaintiffs at odds with white females.

Moore illustrates one of the limitations of antidiscrimination law's remedial scope and normative vision. The refusal to allow a multiply-disadvantaged class to represent others who may be sin- gularly-disadvantaged defeats efforts to restructure the distribu- tion of opportunity and limits remedial relief to minor adjustments within an established hierarchy. Consequently, "bottom-up" ap- proaches, those which combine all discriminatees in order to chal- lenge an entire employment system, are foreclosed by the limited view of the wrong and the narrow scope of the available remedy. If such "bottom-up" intersectional representation were routinely per- mitted, employees might accept the possibility that there is more to gain by collectively challenging the hierarchy rather than by each discriminatee individually seeking to protect her source of privilege within the hierarchy. But as long as antidiscrimination doctrine proceeds from the premise that employment systems need only minor adjustments, opportunities for advancement by disad- vantaged employees will be limited. Relatively privileged employ- ees probably are better off guarding their advantage while jockey- ing against others to gain more. As a result, Black women-the class of employees which, because of its intersectionality, is best able to challenge all forms of discrimination-are essentially iso- lated and often required to fend for themselves.

In Moore, the court's denial of the plaintiff's bid to represent all Blacks and females left Moore with the task of supporting her race and sex discrimination claims with statistical evidence of dis- crimination against Black females alone.18 Because she was unable to represent white women or Black men, she could not use overall

" Id at 484-86.

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statistics on sex disparity at Hughes, nor could she use statistics on race. Proving her claim using statistics on Black women alone was no small task, due to the fact that she was bringing the suit under a disparate impact theory of discrimination. 9

The court further limited the relevant statistical pool to in- clude only Black women who it determined were qualified to fill the openings in upper-level labor jobs and in supervisory posi- tions.20 According to the court, Moore had not demonstrated that there were any qualified Black women within her bargaining unit or the general labor pool for either category of jobs.2 1 Finally, the court stated that even if it accepted Moore's contention that the percentage of Black females in supervisory positions should equal the percentage of Black females in the employee pool, it still would not find discriminatory impact.22 Because the promotion of only two Black women into supervisory positions would have achieved the expected mean distribution of Black women within that job category, the court was "unwilling to agree that a prima facie case of disparate impact ha[d] been proven."23

The court's rulings on Moore's sex and race claim left her with such a small statistical sample that even if she had proved that there were qualified Black women, she could not have shown dis- crimination under a disparate impact theory. Moore illustrates yet another way that antidiscrimination doctrine essentially erases Black women's distinct experiences and, as a result, deems their discrimination complaints groundless.

3. Payne v Travenol. Black female plaintiffs have also encountered difficulty in

'o Under the disparate impact theory that prevailed at the time, the plaintiff had to introduce statistics suggesting that a policy or procedure disparately affects the members of a protected group. The employer could rebut that evidence by showing that there was a business necessity supporting the rule. The plaintiff then countered the rebuttal by showing that there was a less discriminatory alternative. See, for example, Griggs v Duke Power, 401 US 424 (1971); Connecticut v Teal, 457 US 440 (1982).

A central issue in a disparate impact case is whether the impact proved is statistically significant. A related issue is how the protected group is defined. In many cases a Black female plaintiff would prefer to use statistics which include white women and/or Black men to indicate that the policy in question does in fact disparately affect the protected class. If, as in Moore, the plaintiff may use only statistics involving Black women, there may not be enough Black women employees to create a statistically significant sample.

'0 Id at 484. "' The court buttressed its finding with respect to the upper-level labor jobs with statis-

tics for the Los Angeles Metropolitan Area which indicated the there were only 0.2% Black women within comparable job categories. Id at 485 n 9.

Id at 486. 23 Id.

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their efforts to win certification as class representatives in some race discrimination actions. This problem typically arises in cases where statistics suggest significant disparities between Black and white workers and further disparities between Black men and Black women. Courts in some cases24 have denied certification based on logic that mirrors the rationale in Moore: The sex dispar- ities between Black men and Black women created such conflicting interests that Black women could not possibly represent Black men adequately. In one such case, Payne v Travenol,2 5 two Black female plaintiffs alleging race discrimination brought a class action suit on behalf of all Black employees at a pharmaceutical plant.2" The court refused, however, to allow the plaintiffs to represent Black males and granted the defendant's request to narrow the class to Black women only. Ultimately, the district court found that there had been extensive racial discrimination at the plant and awarded back pay and constructive seniority to the class of Black female employees. But, despite its finding of general race discrimination, the court refused to extend the remedy to Black men for fear that their conflicting interests would not be ade- quately addressed;27 the Fifth Circuit affirmed.2"

Notably, the plaintiffs in Travenol fared better than the simi- larly-situated plaintiff in Moore: They were not denied use of meaningful statistics showing an overall pattern of race discrimina- tion simply because there were no men in their class. The plain- tiffs' bid to represent all Black employees, however, like Moore's attempt to represent all women employees, failed as a consequence

24 See Strong v Arkansas Blue Cross & Blue Shield, Inc., 87 FRD 496 (E D Ark 1980);

Hammons v Folger Coffee Co., 87 FRD 600 (W D Mo 1980); Edmondson v Simon, 86 FRD 375 (N D Ill 1980); Vuyanich v Republic National Bank of Dallas, 82 FRD 420 (N D Tex 1979); Colston v Maryland Cup Corp., 26 Fed Rules Serv 940 (D Md 1978).

2 416 F Supp 248 (N D Miss 1976). 26 The suit commenced on March 2, 1972, with the filing of a complaint by three em-

ployees seeking to represent a class of persons allegedly subjected to racial discrimination at the hands of the defendants. Subsequently, the plaintiffs amended the complaint to add an allegation of sex discrimination. Of the original named plaintiffs, one was a Black male and two were Black females. In the course of the three-year period between the filing of the complaint and the trial, the only named male plaintiff received permission of the court to withdraw for religious reasons. Id at 250.

27 As the dissent in Travenol pointed out, there was no reason to exclude Black males from the scope of the remedy after counsel had presented sufficient evidence to support a finding of discrimination against Black men. If the rationale for excluding Black males was the potential conflict between Black males and Black females, then "[i]n this case, to para- phrase an old adage, the proof of plaintiffs' ability to represent the interests of Black males was in the representation thereof." 673 F2d at 837-38.

28 673 F2d 798 (5th Cir 1982).

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