Demarginalizing the Intersection of Race and sex: A Black Feminist Critique of Antidiscrimination doctrine. Feminist Theory and Antiracist Politics Kimberle Crenshaw One of the very few black women s studies books is entitled All the Women Are White; All the Blacks Are Men, But Some of Us are Brave. I have chosen this title as a point of departure in my efforts to develop a black feminist criticism2 because it sets forth a problematic consequence of the tendency to treat race and gender as mutually exclusive categories of experience and analysis In this talk, I want to examine how this tendency is perpetuated by a single-axis framework that is dominant in antidiscrimination law and that is also reflected in feminist theory and antiracist politics I will center Black women in this analysis in order to contrast the multidimensionality of Black women's experience with the sin gle-axis analysis that distorts these experiences. Not only will this juxtaposition reveal how Black women are theoretically erased, it will also illustrate how this framework imports its own theoretical limitations that undermine efforts to broaden feminist and an t Acting Professor of Law, University of California, Los Angeles Law School n Gloria T. Hull, et al, eds(The Feminist Press, 1982) For other work setting forth a Black feminist perspective on law, see Judy Scales- Trent, Black Women and the Constitution: Finding Our Place, Asserting Our Rights (Voices of Experience: New Responses to Gender Discourse), 24 Harv CR-CL L Rev 9 (1989); Regina Austin, Sapphire- Bound!, forthcoming in Wisc Women s L J( 1989); Angela Harris, Race and Essentialism in Feminist Legal Theory(unpublished manuscript on file r); and Paulette M. Caldwell, A Hair Piece( author). a The most common linguistic manifestation of this analytical dilemma is represented in the conventional usage of the term"Blacks and women. " Although it may be true that some people mean to include black women in either"Blacks "or"women, "the context in which the term is used actually suggests that often black women are not considered. See, for example, Elizabeth Spelman, The Inessential Woman 114-15(Beacon Press, 1988)(discuss ng an article on blacks and women in the military where"the racial identity of those iden tified as ' does not become explicit until reference is made to Black women, at which point it also becomes clear that the category of women excludes Black women"). It seems hat if Black women were explicitly included, the preferred term would be either"Blacks and white women”or“ Black men and all womer 139 linolin 1989 U. Chi. Legal F. 139 1989
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140 THE UNIVERSITY OF CHICAGO LEGAL FORUM [15 tiracist analyses. With Black women as the starting point, it be comes more apparent how dominant conceptions of discrimination condition us to think about subordination as disadvantage occur ring along a single categorical axis I want to suggest further that this single-axis framework erases Black women in the conceptual ization, identification and remediation of race and sex discrimina tion by limiting inquiry to the experiences of otherwise- privileged embers of the group In other words, in race discrimination cases discrimination tends to be viewed in terms of sex- or class-privi leged Blacks; in sex discrimination cases, the focus is on race- and class-privileged women This focus on the most privileged group members marginalizes those who are multiply-burdened and obscures claims that cannot be understood as resulting from discrete sources of discrimination I suggest further that this focus on otherwise-privileged group members creates a distorted analysis of racism and sexism because the operative conceptions of race and sex become grounded in ex periences that actually represent only a subset of a much more complex phenomenon After examining the doctrinal manifestations of this single axis framework, I will discuss how it contributes to the marginal ization of Black women in feminist theory and in antiracist polit I argue that Black women are sometimes excluded from femi ist theory and antiracist policy discourse because both are predicated on a discrete set of experiences that often does not curately reflect the interaction of race and gender. These problems of exclusion cannot be solved simply by including Black women within an already established analytical structure. Because the in tersectional experience is greater than the sum of racism and sex lysis that does not take intersectionality into cannot sufficiently address the particular manner in which Black women are subordinated. Thus, for feminist theory and antiracist policy discourse to embrace the experiences and concerns of Black women, the entire framework that has been used as a basis for translating" women' s experience”or“ the Black experience”into concrete policy demands must be rethought and recast As examples of theoretical and political developments that miss the mark with respect to Black women because of their failure to consider intersectionality, I will briefly discuss the feminist cri tique of rape and separate spheres ideology, and the public policy debates concerning female-headed households within the black community linolin 1989 U. Chi. Legal F. 140 1989
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139] DEMARGINALIZING THE INTERSECTION I. THE ANTIDISCRIMINATION FRAMEWORK A. The Experience of Intersectionality and the Doctrinal Response One way to approach the problem of intersectionality is to ex amine how courts frame and interpret the stories of Black women plaintiffs. While i cannot claim to know the circumstances under- lying the cases that I will discuss, I nevertheless believe that the way courts interpret claims made by black women is itself part of Black women s experience and, consequently, a cursory review of cases involving Black female plaintiffs is quite revealing. To illus- trate the difficulties inherent in judicial treatment of intersection- ality, i will consider three Title VIl cases: De Graffenreid u Gen eral motors, Moore u Hughes Helicopter and Payne u Travenol. 1. De graffenreid v General Motors In Degraffenreid, five Black women brought suit against Gen eral Motors, alleging that the employer's seniority system perpetu ated the effects of past discrimination against black women evi- dence adduced at trial revealed that General Motors simply did not hire Black women prior to 1964 and that all of the Black women hired after 1970 lost their jobs in a seniority-based layoff during a subsequent recession. The district court granted summary judgment for the defendant, rejecting the plaintiffs'attempt to bring a suit not on behalf of Blacks or women, but specifically on behalf of black wo The court state [PLaintiffs failed to cite any de stated that black women are a specia tected from discrimination. The Court,s own research has failed to disclose such a decision. The plaintiffs are clearly entitled to a remedy if they have been discrimi nated against. However, they should not be allowed to combine statutory remedies to create a new super-rem edy' which would give them relief beyond what the draft ers of the relevant statutes intended Thus this lawsuit must be examined to see if it states a cause of action for race discrimination, sex discrimination or alternative either, but not a combination of both Civil Rights Act of 1964, 42 USC s 2000e, et seq as amended (1982) 2EDMo1976) 6708F2d475(9hCir1983) 7673F2d798(5 th cir1982) De Graffenreid, 413 F Supp at 143 linolin 1989 U. Chi. Legal F. 141 1989
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142 THE UNIVERSITY OF CHICAGO LEGAL FORUM [1989 Although General Motors did not hire Black women prior to 1964, the court noted that "General Motors has hired... female employees for a number of years prior to the enactment of the Civil Rights Act of 1964. 79 Because General Motors did hire women-albeit white women-during the period that no black women were hired, there was in the courts view, no sex discrimi nation that the seniority system could conceivably have perpetuated After refusing to consider the plaintiffs,sex discrimination claim, the court dismissed the race discrimination complaint and recommended its consolidation with another case alleging race dis- crimination against the same employer. 10 The plaintiffs responded that such consolidation would defeat the purpose of their suit since theirs was not purely a race claim, but an action brought specifi cally on behalf of Black women alleging race and sex discrimina tion. The court however, reasoned The legislative history surrounding Title vii does not in- dicate that the goal of the statute was to create a new classification of 'black womenwho would have greater standing than, for example, a black male. The prospect of the creation of new classes of protected minorities, gov erned only by the mathematical principles of permuta- tion and combination, clearly raises the prospect of open ing the hackneyed Pandora' s box. 1 Thus, the court apparently concluded that Congress either did not contemplate that black women could be discriminated against s"Black women""or did not intend to protect them when such discrimination occurred. 12 The courts refusal in DeGraffenreid to Id at 144 Id at 145 In Mosley u General Motors, 497 F Supp 583(E D Mo 1980), plaintiffs, alleging broad-based racial discrimination at General Motors'St. Louis facility, prevailed in a portion of their Title vil claim. The seniority system challenged in De Graffenreid, ho ever, was not considered in Mosley u1 Id at 145 12 Interestingly, no case has been discovered in which a court denied a white male's attempt to bring a reverse discrimination claim on similar grounds-that is, that sex and ace claims cannot be combined because Congress did not intend to protect compound clas White males in a typical in no better ion than the ustrated plaintiffs in DeGraffenreid: If they are required to made their claims separately, white males cannot prove race discrimination because white women are not discriminated against, and they cannot prove sex discrimination because Black males are not discrimi lated against. Yet it seems that courts do not acknowledge the compound nature of most reverse discrimination cases. That Black womens claims automatically raise the question of compound discrimination and white males"reverse discrimination"cases do not suggest linolin 1989U.chi.Lega1F.1421989
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139] DEMARGINALIZING THE INTERSECTION 143 acknowledge that Black women encounter combined race and sex discrimination implies that the boundaries of sex and race discrim ination doctrine are defined respectively by white women's and Black mens experiences. Under this view, Black women are pro tected only to the extent that their experiences coincide with those of either of the two groups. 3 Where their experiences are distinct, Black women can expect little protection as long as approaches such as that in De graffenreid, which completely obscure problems of intersectionality prevail. 2. Moore u Hughes helicopter, Inc Moore u Hughes Helicopters, Inc. 14 presents a different way in which courts fail to understand or recognize Black womens claims. Moore is typical of a number of in which courts refused to certify black females as class representatives in race and sex dis crimination actions. 6 In Moore, the plaintiff alleged that the em ployer, Hughes Helicopter, practiced race and sex discrimination in promotions to upper-level craft positions and to supervisory jobs. Moore introduced statistical evidence establishing a signifi cant disparity between men and women, and somewhat less of a disparity between Black and white men in supervisory jobs. 6 that the notion of compoundedness is somehow contingent upon an implicit norm that is cause they are two steps removed from a white male norm, while white males are apparently not perceived to be a compound class because they somehow represent the norm 1s i do not mean to imply that all courts that have grappled with this problem have adopted the DeGraffenreid approach. Indeed other courts have concluded that black women are protected by Title VIl. See, for example, Jefferies v Harris Community Action Ass'n, 615 F2d 1025(5th Cir 1980). i do mean to suggest that the very fact that the black women,s claims are seen as aberrant suggests that sex discrimination doctrine is centered in the experiences of white women. Even those courts that have held that Black women are protected seem to accept that black womens claims raise issues that the"standard"sex discrimination claims do not See Elaine W. Shoben, Compound Discrimination: The inter action of Race and Sex in Employment Discrimination, 55 NYU L Rev 793, 803-04(1980) (criticizing the Jefferies use of a sex plus analysis to create a subclass of Black women 14708F2d475. See also Moore u National Association of Securities Dealers, 27 EPD(CCH)l 32, 238 (D DC 1981); but see Edmondson v Simon, 86 FRD 375(N D Ill 1980)(where the court was unwilling to hold as a matter of law that no black female could represent without confict the interests of both blacks and females) 1e 708 F2d at 479. Between January 1976 and June 1979, the three years in which Moore claimed that she was passed over for promotion, the percentage of white males occu pying first level supervisory positions ranged from 70.3 to 76.8%; Black males from 8.9 to 10.9%; white women from 1.8 to 3.3 %; and Black females from 0 to 2.2%. The overall male/ female ratio in the top five labor grades ranged from 100/0% in 1976 to 98/1.8% in 1979. The white/Black ratio was 85/3.3% in 1976 and 79.6/8% in 1979. The overall ratio of men to women in supervisory positions was 98.2 to 1.8% in 1976 to 93.4 to 6.6% in 1979; the black to white ratio during the same time period was 78.6 to 8.9% and 73.6 to 13. 1% linolin 1989 U. Chi. Legal F. 143 1989
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