Thirty-five years ago, Professor Kimberlé Crenshaw coined the term “intersectionality” to explain how multiple forms of discrimination interact to exacerbate each other, resulting in amplified forms of prejudice and harm. Last month, California became the first state to explicitly recognize intersectionality in discrimination law.
“This bill helps to lay the groundwork for California to legally recognize that discrimination based on race, gender and other forms of inequality are often inseparable,” said Crenshaw, co-founder and executive director of The African American Policy Forum. “With the passage of this bill, workers will be protected against the interaction of various forms of discrimination and California will be one step closer to advancing a more just and equitable society for all.”
Signed by Gov. Gavin Newsom (D) on Sept. 28, the new law amends state anti-discrimination protections covering employment, housing, public accommodations and education to clarify that these laws protect people against discrimination based on not just one protected characteristic, but also the intersection or combination of two or more protected bases, such as gender and race, gender and age or race and LGBTQ+ status.
“Discrimination transcends singular dimensions. SB 1137 makes it clear that discrimination not only happens based on one protected class, such as race, gender or age, but any combination thereof,” said the bill’s sponsor, state Sen. Lola Smallwood-Cuevas (D).
In the past, judges and juries have treated intersectional claims of discrimination inconsistently, sometimes requiring plaintiffs to focus their complaint on one aspect of their identity.
In the case of Lam v. University of Hawaii, for example, a federal court ruled against an Asian American female professor because the hiring committee had supported an Asian man and a white woman. On appeal, the Ninth Circuit held that “Asian women are subjected to a set of stereotypes and assumptions shared neither by Asian men nor by white women. In consequence, they may be targeted for discrimination even in the absence of discrimination against Asian men or white women.”
The Federal Equal Employment Opportunity Commission has since recognized that discrimination and harassment may be directed at more than one aspect of a person’s identity at a time, often exacerbating harm.
According to Smallwood-Cuevas, the new law “enshrines these key principles of intersectionality into law in order to provide guidance to California state courts and ensure that plaintiffs’ full experience of harm is recognized.”
Discrimination is often worsened by intersecting biases. For example, women of color also often experience sexual harassment in racialized ways. And the gendered wage gap is worse for women of color.
U.S.Census Bureau data show that women working full time year round are paid on average 84 cents per dollar paid to men, but that gap grows to 69 cents per dollar for Black women compared to white men, and 59 cents for Latinas. These disparities increase significantly if you include not only wages, but other forms of compensation such as health insurance, retirement account contributions, bonuses and self-employment income. Once you factor in these other forms of earnings, men actually earn 75 percent more than women, according to the Stanford Center on Poverty and Inequality—meaning that women on average earn only 57 cents on a man’s dollar. Women of color earn significantly less.
“Workers are often forced to focus their discrimination claims on one site of marginalization, bisecting their experiences in ways that do not reflect their lived experiences,” said Jessica Ramey Stender, policy director and deputy legal director at Equal Rights Advocates. “From on-the-ground experience representing women of color, LGBTQI+ workers and others who have faced egregious discrimination and harassment at work, we know the recognition of intersectionality in our state law is necessary to more effectively address discrimination and harassment in the workplace.”
The bill’s supporters included Equal Rights Advocates, the California Employment Lawyers Association and Legal Aid at Work.
“This bill is common-sense reform that addresses the intersectionality of discrimination cases, providing greater protections for Californians,” said Smallwood-Cuevas, “especially those from our most marginalized communities of color.”
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