144 THE UNIVERSITY OF CHICAGO LEGAL FORUM [1989 Affirming the district court's refusal to certify Moore as the class representative in the sex discrimination complaint on behalf of all women at Hughes, the Ninth Circuit noted approvingly: Moore had never claimed before the eeoc that she was discriminated against as a female, but only as a Black female IT]his raised serious doubts as to Moore's ability to adequately represent white female employees. 7 The curious logic in Moore reveals not only the narrow scope of antidiscrimination doctrine and its failure to embrace intersection ality, but also the centrality of white female experiences in the conceptualization of gender discrimination. One inference that could be drawn from the court's statement that Moore' s complaint did not entail a claim of discrimination"against females"is that discrimination against Black females is something less than dis- crimination against females. More than likely, however, the court meant to imply that Moore did not claim that all females were discriminated against but only Black females. But even thus re- cast, the courts rationale is problematic for Black women. The court rejected Moore s bid to represent all females apparently be cause her attempt to specify her race was seen as being at odds with the standard allegation that the employer simply discrimi nated"against females The court failed to see that the absence of a racial referent does not necessarily mean that the claim being made is a more inclusive one. a white woman claiming discrimination against fe- males may be in no better position to represent all women than a Black woman who claims discrimination as a black female and wants to represent all females. The court's preferred articulation of gainst females "is not necessarily more inclusive--it just appears to be so because the racial contours of the claim are not specified The courts preference for "against females" rather than e gainst Black females"reveals the implicit grounding of white fe ale experiences in the doctrinal conceptualization of sex discrimi nation. For white women, claiming sex discrimination is simply a statement that but for gender, they would not have been disadvan taged For them there is no need to specify discrimination as white and 1979, the percentage of white males in these positions ranged from 85. 3 to 77.9%o; Black males 3.3 to 8%; white females from 0 to 1. 4%, and Black females from 0 to 0%. Overall, in 1979, 98.2% of the highest level employees were male; 1.8% were female 17 708 F2d at 480(emphasis added ). linolin 1989 U. Chi. Legal F. 144 1989
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DEMARGINALIZING THE INTERSECTION 145 females because their race does not contribute to the disadvantage for which they seek redress. The view of discrimination that is de rived from this grounding takes race privilege as a given Discrimination against a white female is thus the standard sex discrimination claim; claims that diverge from this standard ap pear to present some sort of hybrid claim. More significantly, be cause Black females, claims are seen as hybrid, they sometimes cannot represent those who may have"pure"claims of sex discrim ination. The effect of this approach is that even though a chal lenged policy or practice may clearly discriminate against all fe males, the fact that it has particularly harsh consequences for Black females places Black female plaintiffs at odds with white females Moore illustrates one of the limitations of antidiscrimination law's remedial scope and normative vision. The refusal to allow a multiply-disadvantaged class to represent others who may be sin gularly-disadvantaged defeats efforts to restructure the distribu tion of opportunity and limits remedial relief to minor adjustments within an established hierarchy. Consequently, "bottom-up"ap proaches, those which combine all discriminates in order to chal lenge an entire employment system, are foreclosed by the limited view of the wrong and the narrow scope of the available remedy If such"bottom-up"intersectional representation were routinely per mitted, employees might accept the possibility that there is more to gain by collectively challenging the hierarchy rather than by each discriminate individually seeking to protect her source of privilege within the hierarchy. but as long as antidiscrimination doctrine proceeds from the premise that employment systems need only minor adjustments, opportunities for advancement by disad vantaged employees will be limited. Relatively privileged employ ees probably are better off guarding their advantage while jockey ing against others to gain more. As a result, Black women-the class of employees which, because of its intersectionality, is best able to challenge all forms of discrimination--are essentially iso lated and often required to fend for themselves In Moore, the court's denial of the plaintiff's bid to represent all Blacks and females left Moore with the task of supporting her race and sex discrimination claims with statistical evidence of dis crimination against Black females alone 18 Because she was unable to represent white women or black men, she could not use overall Is Id at 484-86 linolin 1989 U. Chi. Legal F. 145 1989
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146 THE UNIVERSITY OF CHICAGO LEGAL FORUM [1989 statistics on sex disparity at Hughes, nor could she use statistics on race. Proving her claim using statistics on Black women alone was no small task, due to the fact that she was bringing the suit under a disparate impact theory of discrimination. 9 The court further limited the relevant statistical pool to in clude only Black women who it determined were qualified to fill the openings in upper-level labor jobs and in supervisory posi tions.20 According to the court, Moore had not demonstrated that there were any qualified Black women within her bargaining unit or the general labor pool for either category of jobs.21 Finally, the court stated that even if it accepted Moore's contention that the percentage of Black females in supervisory positions should equal the percentage of Black females in the employee pool, it still would not find discriminatory impact. 22 Because the promotion of only two Black women into supervisory positions would have achieved the expected mean distribution of Black women within that job category, the court was"unwilling to agree that a prima facie case of disparate impact ha[d] been proven The court s rulings on Moore' s sex and race claim left her with such a small statistical sample that even if she had proved that there were qualified Black women, she could not have shown dis- crimination under a disparate impact theory. Moore illustrates yet another way that antidiscrimination doctrine essentially erases Black womens distinct experiences and, as a result, deems their discrimination complaints groundless 3. Payne u Travenol Black female plaintiffs have also encountered difficulty in 19 Under the disparate impact theory that prevailed at the time, the plaintiff had to introduce statistics suggesting that a policy or procedure disparately affects the members of a protected group. The employer could rebut that evidence by showing that there was a business necessity supporting the rule the plaintiff then countered the rebuttal by showing that there was a less discriminatory alternative. See, for example Griggs u Duke Power, 401 US 424(1971); Connecticut u Teal, 457 US 440(1982) A central issue in a disparate impact case is whether the impact proved is statistically significant. A related issue is how the protected group is defined. In many cases a Black female plaintiff would prefer to use statistics which include white women and/or Black men to indicate that the policy in question does in fact disparately affect the protected class. If, as in Moore, the plaintiff may use only statistics involving Black women, there may not be enough Black women employees to create a statistically significant sample ao Id at 484 al The court buttressed its finding with respect to the upper level labor jobs with statis tics for the Los angeles Metropolitan Area which indicated the there were only 0.2% Black women within ble job categories. Id at 485 n 9 a Id at 486 linolin 1989 U. Chi. Legal F. 146 1989
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139] DEMARGINALIZING THE INTERSECTION 147 their efforts to win certification as class representatives in some race discrimination actions. This problem typically arises in cases where statistics suggest significant disparities between Black and white workers and further disparities between Black men and Black women. Courts in some cases 24 have denied certification based on logic that mirrors the rationale in Moore: The sex dispar ities between Black men and Black women created such conflicting interests that Black women could not possibly represent Black men adequately. In one such case Payne u Travenol, two Black female plaintiffs alleging race discrimination brought a class action suit on behalf of all black employees at a pharmaceutical plant. 26 The court refused, however, to allow the plaintiffs to represent Black males and granted the defendant's request to narrow the class to Black women only. Ultimately, the district court found that there had been extensive racial discrimination at the plant and awarded back pay and constructive seniority to the class of Black female employees. But, despite its findi discrimination, the court refused to extend the remedy to black men for fear that their conflicting interests would not be ade quately addressed; 7 the Fifth circuit affirmed Notably, the plaintiffs in Travenol fared better than the simi larly-situated plaintiff in Moore: They were not denied use of meaningful statistics showing an overall pattern of race discrimina tion simply because there were no men in their class. The plain tiffs' bid to represent all Black employees, however, like Moore's attempt to represent all women employees, failed as a consequence a4 See Strong u Arkansas Blue Cross & Blue Shield, Inc, 87 FRD 496(E D Ark 1980) Hammons u Folger Coffee Co., 87 FRD 600(W D Mo 1980); Edmondson Simon, 86 FRD 375(N D Ill 1980); Vuyanich u Republic National Bank of Dallas, 82 FRD 420(N D Tex 1979); Colston u Maryland Cup Corp, 26 Fed Rules Serv 940(D Md 1978) 416 F Supp 248(N D Miss 1976) he suit commenced on March 2, 1972, with the filing of a complaint by three em loyees seeking to represent a class of persons allegedly subjected to racial discrimination at the hands of the defendants. Subsequently, the plaintiffs amended the complaint to add an allegation of sex discrimination. Of the original named plaintiffs, one was a Black male and two were Black females. In the course of the three-year period between the filing of the complaint and the trial, the only named male plaintiff received permission of the court to withdraw for religious reasons. Id at 250 a7 As the dissent in Travenol pointed out, there was no reason to exclude black males from the scope of the remedy after counsel had presented sufficient evidence to support a finding of discrimination against Black men. If the rationale for excluding Black males was the potential conflict between Black males and Black females, then" [in this case, to para phrase an old adage, the proof of plaintiffs' ability to represent the interests of Black males was in the representation thereof. "673 F2d at 837-38 2673F2d798(5 th cir1982) linolin 1989 U. Chi. Legal F. 147 1989
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148 THE UNVERSITY OF CHICAGO LEGAL FORUM [1989 of the court's narrow view of class interest Even though Travenol was a partial victory for Black women, the case specifically. illustrates how antidiscrimination doctrine generally creates a dilemma for Black women. It forces them to choose between specifically articulating the intersectional aspects of their subordination, thereby risking their ability to represent Black men, or ignoring intersectionality in order to state a claim that would not lead to the exclusion of black men when one con- siders the political consequences of this dilemma, there is little wonder that many people within the Black community view the specific articulation of Black womens interests as dangerously In sum, several courts have proved unable to deal with inter sectionality, although for contrasting reasons. In Degraffenreid the court refused to recognize the possibility of compound discrim ination against Black women and analyzed their claim using the employment of white women as the historical base. As a conse- distinct discrimination that Black women experienced Oscured the quence, the employment experiences of white women ob Conversely, in Moore, the court held that a black woman could not use statistics reflecting the overall sex disparity in super visory and upper-level labor jobs because she had not claimed dis crimination as a woman, but"only" as a black woman. The court would not entertain the notion that discrimination experienced by Black women is indeed sex discrimination--provable through dis- parate impact statistics on women Finally, courts, such as the one in Travenol, have held that Black women cannot represent an entire class of Blacks due to pre sumed class conficts in cases where sex additionally disadvantaged Black women As a result. in the few cases where black women are allowed to use overall statistics indicating racially disparate treat ment black men may not be able to share in the remedy. Perhaps it appears to some that i have offered inconsistent criticisms of how Black women are treated in antidiscrimination law: I seem to be saying that in one case, Black women,'s claims were rejected and their experiences obscured because the e court re fused to acknowledge that the employment experience of Black women can be distinct from that of white women while in other cases, the interests of Black women were harmed because black women' s claims were viewed as so distinct from the claims of either white women or black men that the court denied to black females representation of the larger class. It seems that i have to say that Black women are the same and harmed by being treated differ- linolin 1989 U. Chi. Legal F. 148 1989
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