As a national employee rights and social justice law firm, Sanford Heisler Sharp McKnight is particularly gratified that California has become the first state in the nation to make intersectional bias part of its anti-discrimination laws.
For the past two decades, our firm has represented employees in their workplace discrimination claims. And all too often, our clients have multiple bases for the discrimination they experienced—only to be forced to focus on one main aspect of their identity at the expense of another.
California Senate Bill (SB) 1137, signed into law by Gov. Gavin Newsom on Sept. 27, 2024, prohibits discrimination that is based on the combination of two or more protected characteristics, such as race and gender, or age and sexual orientation.
A Bellwether Development for Workplace Rights
When the bill was being debated in the California Senate, members of our Public Interest Litigation Practice Group—led by Partner Jonathan Tepe in collaboration with Associate Erica Roberts, and Legal Assistants Serena Bernal, Annabelle Wang, and Lesly Gissel Zhicay—wrote a letter urging the law’s passage as a bellwether development for civil rights and workplace rights across the nation.
In the real world, discrimination does not necessarily stick to the discreet lanes of identity recognized under the law. As our Public Interest Litigation team wrote to the California Senate Judiciary Committee, the law prohibiting intersectional bias “would also help raise awareness that individuals with multiple protected characteristics experience discrimination at disproportionate rates.”
Take the gender gap in pay. On average, women make 83 cents to every dollar paid to men. But that gap grows to 64 cents to every dollar for Black women, and 57 cents to every dollar for Hispanic women. Similarly, women of color with disabilities are less likely than white women with disabilities to have employers meet their requests for accommodations, and they are more likely to experience discrimination and harassment than other people with disabilities.
Kimberlee Crenshaw and the Origins of Intersectionality
The idea of intersectionality in discrimination was first introduced by legal scholar Kimberlee Crenshaw, Co-Founder and Executive Director of the African American Policy Forum (AAPF). In 1989, Crenshaw wrote a landmark paper focusing on how civil rights law protected against race and gender discrimination but only as distinct forms of bias, failing to account for harmful bias that impacted groups based on multiple aspects of their identity.
Among the cases Crenshaw cited was a 1976 class action lawsuit, Degraffenreid v. General Motors, in which five Black women, led by Emma Degraffenreid, a working mother of two in St. Louis, sued the automaker in federal court, alleging that GM discriminated against them based on race and gender by repeatedly denying their job applications to work on the company’s assembly lines. But the Court dismissed the lawsuit on the grounds that GM had hired white women and Black men to work assembly lines.
“From the court’s vantage point, the fact that they’d hired African Americans, and had hired women, meant that they did not engage in race discrimination and they didn’t engage in gender discrimination,” Crenshaw explained recently.
The problem for Degraffenreid and her co-plaintiffs at the time was that they could not bring their claims as African Americans who were discriminated against as women, any more than they could have alleged they were discriminated against as women who were Black.
“The court thought that the law didn’t allow her to combine these two causes of action,” Crenshaw said. “What we had was a problem of the belief that African American women were a category in and of themselves.”
EEOC Recognizes Intersectional Bias
In the decades since Crenshaw coined “intersectional bias,” the Equal Employment Opportunity Commission (EEOC) has recognized intersectional bias as a form of discrimination, and some courts have also deemed bias based on two or more protected identities to be unlawful.
As a firm, we believe in advocating for policy reform that promotes civil rights, workers’ rights, and corporate accountability. That is why our Public Interest Litigation Practice Group has also, in recent months, written letters on other policy issues—urging the Department of Education to adopt regulations allowing students to participate in sports in accordance with their gender, for instance, or advocating for stronger regulations implementing the Pregnant Workers Fairness Act.
In becoming the first state to outlaw intersectional bias, California is helping ensure that courts treat intersectional claims more consistently going forward. We are glad that California followed our lead. Now, we hope, more states will follow theirs.