Excerpted From: Elena S. Meth, Title VII's Failures: A History of Overlooked Indifference, 121 Michigan Law Review 1417 (June, 2023) (156 Footnotes) (Full Document)


ElenaSMeth.jpegTwo decades ago, Professor Devon Carbado introduced the academic world to Mary, a Black woman working at an elite corporate law firm. Mary is a seventh-year associate who is up for partnership--the only Black woman being considered. Mary and one white man are denied the promotion, and Mary subsequently brings a disparate treatment discrimination suit under Title VII of the Civil Rights Act of 1964. She presents three claims: race discrimination, sex discrimination, and race and sex discrimination. The court rejects all three, finding that because other candidates sharing aspects of Mary's identity were promoted, there could be no explicit discrimination against her on the basis of her race or gender. Carbado's point was that, as the only Black woman in the mix, Mary falls through an “anti-discrimination gap.” By only pointing to the way the firm treats Black men and white women, the court implicitly creates a third, lesser category for Black women on the basis of the intersection of Mary's identities.

Mary's experience is not unique. Instead, Mary is ubiquitous. She is the Dalit Indian man marginalized by his coworkers based on his caste. She is the incarcerated person experiencing sexual violence for defying “gender normative expressions of masculinity.” She is the immigrant Latina worker scared to report sexual and racial slurs for fear of jeopardizing her immigration status. All of these people have the same thing in common: Title VII, as currently interpreted by the courts, though perhaps not as originally enacted in 1964, does not provide a remedy for the harm they experience on the basis of their intersectional identities. This, as Professor Kimberlé Crenshaw posited over thirty years ago, is the crux of intersectional discrimination.

This Note compiles and compares a myriad of perspectives that scholars and practitioners have articulated but never considered together, until now. Building upon prior scholarship, this Note demonstrates that, although Title VII was not necessarily passed with intersectionality in mind, both the Supreme Court and leading gender discrimination scholars have left intersectionality out of the discussion. As a result, the safeguards provided by employment discrimination laws and, more broadly, all other discrimination laws under Title VII are weaker, and we are all worse off for it. There are a few reasons why this scholarship is urgently needed. Intersectional discrimination is not disappearing--or even improving, for that matter. Complete data on exactly who experiences discrimination on the basis of multiple identities is difficult to find, not only because the law fails to provide space for these incidents but also because many polling sources define discrimination along single axes. For example, a 2018 Harvard study found that 57% of Black Americans report pay and promotion discrimination, while 31% of women report gender discrimination in job hiring. Discrimination along axes of race, gender identity, sexual orientation, and disability is also a crisis in public health, housing, and safety. If we fail to even define discrimination accurately, how can we adequately remedy its effects?

This Note proceeds in three parts. Part I provides an overview of Title VII and intersectionality. I then explain how the Equal Employment Opportunity Commission (EEOC) and the Supreme Court have historically handled intersectional discrimination cases. In Part II, I compare and contrast major feminist, political, and legal thought on dominance theory, gender essentialism, and antiessentialist theory with intersectional discrimination theory. In Part III, I offer considerations and a framework to incorporate intersectional discrimination theory into the remedies phase of Title VII lawsuits.

[. . .]

If Title VII is not working, then who is responsible for making it work? Scholars and practitioners have widely diverging views on this question. Some argue that change has to come from the legislature and, given the current composition of the Supreme Court, that may be the best channel. Others argue that change must come from the EEOC or even from workplaces in the form of antidiscrimination trainings.

Regardless of how the change is made, and what that change brings, lawyers, legislators, and judges alike must consider the values they want to center. It is, of course, worth asking whether recognizing intersectional discrimination matters at all, particularly in light of a Supreme Court opinion that seemed to suggest textual support for the recognition of a broad range of discrimination. Still, regardless of whether the current regime provides adequate remedies, we must continue to ask whether it is possible for the law to address these harms. Empirical data demonstrates that Title VII is not currently serving that role. Reexamining the major theory on intersectionality and the scholarship on the failure of dominant feminist legal theory to embrace intersectionality provides an important starting point. But, to create any lasting change, the legal profession must broaden the scope of harms it considers worthy of its time.

J.D., May 2023, University of Michigan Law School.