Employers Must Be Aware of Intersectional Discrimination

By Community Manager posted 10-28-2022 12:55 PM


If you haven’t yet heard of intersectional discrimination, chances are it should be on your radar. Intersectional discrimination occurs when two or more grounds for discrimination interact to produce distinct and specific forms of discrimination. One example frequently cited is that Black women in the United States faced sexism in the civil rights movement and then experienced racism in the feminist movement due to intersectional discrimination. Other examples include comparing the way in which an African American experiences discrimination at work compared to how an African American worker with a disability experiences discrimination or the way in which an older worker is treated as compared to an older worker with a disability.

The idea that individuals with more than one protected status experience compounded discrimination is supported by data. A recent study by the Disability Statistics Compendium found that “28.6 percent of U.S. African Americans with disabilities ages 18-64 living in the community had a job, compared to an employment rate of 73.7 percent of African Americans who do not have a disability.”

Intersectional discrimination impacts not only whether an individual will be hired but at what rate of pay. In November 2021, the Equal Employment Opportunity Commission (EEOC) addressed the matter of intersectional discrimination in an article titled In Pursuit of Pay Equity: Examining Barriers to Equal Pay, Intersectional Discrimination Theory, and Recent Pay Equity Initiatives.

The article noted that despite multiple federal laws protecting employees from discrimination in the workplace, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), and the Equal Pay Act (EPA), pay equity has not been achieved. The article used the following quote from President Biden to illustrate the point: “In nearly every job – more than 90 percent of occupations – women are still earning less than men. For every dollar the typical man who works full-time (for a) full year earns in America, a woman earns 82 cents. For (Asian American and Pacific Islander) women, it’s 87 cents for every dollar a white man earns. For Black women, it’s 63 cents. For Native American women, it’s 60 cents. And for Hispanic women, it’s 55 cents.”

Consequently, the EEOC notes that these statistics are an indication that “pay inequity is not solely an issue of sex discrimination, but an intersectional issue that cuts across race, color, national origin, and other protected classes.” In other words, certain protected groups overlap, and negative stereotypes and biases may be directed at more than one at a time. Federal law and most state anti-discrimination laws prohibit employers from discriminating against employees because of the intersection of a protected basis under Title VII, for example, race or sex, and a trait covered by another EEO statute, such as disability or age under the Americans with Disabilities Act (ADA) or the ADEA, respectively.

In fact, federal courts are now beginning to recognize and discuss the matter of intersectional discrimination in cases. Recently, the 10th Circuit held in Frappied v. Affinity Gaming Black Hawk, LLC, 966 F.3d 1038 (10th Cir. 2020) that intersectional claims are cognizable under Title VII. The case is notable because it represents a rare instance of a cross-statute complaint invoking both the ADEA and Title VII.

The November 2021 EEOC article explained the case as follows:

“The plaintiff in this case alleged sex and age discrimination, and the court recognized that the claim was not based on a combination of protected characteristics set forth in Title VII. Instead, the ‘plus’ characteristic (age) was a protected class under another statute, the ADEA. Nevertheless, the court found ample precedent holding that Title VII forbids “sex-plus” discrimination in cases in which the ‘plus’ characteristic is not protected under that statute. The court further concluded that a plaintiff alleging ‘sex plus’ discrimination does not need to show that her employer discriminated against her entire subclass of women, only that she herself was discriminated against at least in part because of her sex. The court noted that research shows older women are subjected to unique discrimination resulting from sex stereotyping, and that recognizing claims of intersectional discrimination best meets congressional intent to prohibit discrimination based on these stereotypes.”

Courts have historically referred to such intersectional discrimination claims as “sex-plus” claims (e.g., sex-plus-race), and their interpretation of Title VII as it relates to these claims is complicated and has continued to evolve over the past several decades.

Certainly, many of the courts and the EEOC are aware of the notion of intersectional discrimination, particularly when discussing pay inequality. However, pay inequality is not the only way in which intersectional discrimination manifests in the workplace. Frappied, for example, was not a matter of pay inequity but an instance in which the older casino workers alleged they were illegally terminated due to the combination of age and gender.

The decision in Frappied is an important turning point in the evolution of workplace discrimination. Employers are cautioned to be aware of the potential for discrimination in the workplace of any form, understanding that discrimination can take place under the guise of more than one protected status. Creating effective diversity, equity, and inclusion (DEI) policies and practices is a proactive way to help ensure an effective and inclusive workplace that lessens the potential for claims of intersectional discrimination. If you have any questions, please email the Employers Council Member Experience Team.