BY NATASHA M. DARTIGUE, ESQ.
“HUMAN CRISIS DOES NOT CREATE A RECOGNITION OF OUR COMMON HUMANITY.” It is through this lens that the term “intersectionality” came to bear 30 years ago. Transformative thinker, legal scholar, author, researcher, and UCLA and Columbia law professor Kimberlé Crenshaw coined the phrase in 1989. In its original form, Professor Crenshaw defined intersectionality as the place where race, gender, and class traverse or overlap in the lives of an individual. It is a legal concept that describes how social structures make certain identities the consequences or vehicles of vulnerability. To best understand where and how people exist today among the COVID-19 realities, we must understand basic terms that define what impedes equal opportunity and equal protection under the law.
Professor Crenshaw publicly explained her theory of intersectionality in the paper titled “Demarginalizing the Intersection of Race and Sex.” The 30-page writing, appearing in the University of Chicago Legal Forum publication, analyzed the legal issues presented in DeGraffenreid v. General Motors Assembly Div., Etc., 413 F. Supp. 142 (E.D. Mo. 1976). The issue before the court was “whether the ‘last hired-first fired’ lay off policies of the General Motors Corporation discriminate against the plaintiffs identified as black women, and are therefore a perpetuation of past discriminatory practices.” DeGraffenreid, 413 F. Supp. 142 (E.D. Mo. 1976). Plaintiffs were former employees who made employment discrimination claims at their respective industrial plants. In the workplace, Black jobs were available to Black men, and female jobs were available to white women. However, Black women were not employed in a similar manner.
Although the court agreed that relief should be granted where discrimination was shown, as proscribed in the Civil Rights Act of 1964, 42 U.S.C. § 2000a et seq. and the Civil War Civil Rights Acts, 42 U.S.C. § 1981, it would not allow the stacking or combining of statutory remedies. Specifically, the court indicated that plaintiffs should not be allowed to combine statutory remedies to create a new “super-remedy.” Id. The court opined that their cause of action gave the plaintiffs, who were Black women, relief greater than was originally intended under the statutes. Consequently, the court examined the cause of action under the separate lens of race discrimination and alternatively under the separate lens of sex discrimination. It outright refused inspection under both theories. The evidence presented through affidavits and company policies was evaluated. After an analysis of the General Motors practices, the court found that not all Blacks and alternatively not all women were excluded from employment, and disallowed the claim asserting discrimination.
However the question remained. Where do employees who are Black women find relief? The court erroneously disregarded the basic truth that Black women have distinct experiences as women which differ from white women and simultaneously have distinct experiences as Blacks that differ from those of Black men. Black women exist in a space where the realities of race and gender overlap. Within the American social structure, it is at times a toxic place where racism and sexism thrive. Professor Crenshaw named the place “intersectionality.” Doing so she brought into the legal forefront, squarely and with particularity, the discussion of material differences in the conditions of people’s lives, particularly black women. With an insight into the origin of the term “intersectionality,” clarity is gleaned that Professor Crenshaw’s definition is not about multiple identities.
As legal professionals, we must not fail to recognize that preexisting social differences among people have created distinct and devastating outcomes. To garner greater understanding and continue the work of identifying and dismantling discriminatory structures, I challenge you to expand your knowledge. Professor Crenshaw continues her research and scholarly work as the Co-Founder and Director of the African American Policy Forum (AAPF). The AAPF is a think tank focused on the elimination of structural inequality and provides a plethora of resources. Understanding the term intersectionality, its meaning and origin is only the beginning of the necessary work to ensure equal opportunity and equal protection under the law. We must continue to challenge existing societal frameworks of race and gender which cannot and must not be neatly compartmentalized.