Race and Sex in Antidiscrimination Law

• Author: Devon W. Carbado
• Pages: 2089-2093

Page 2089

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

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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...