Duquesne Law Review
Abstract
The trend of globalization has only continued to bring workers from different races, religions, and countries to the United States. Moreover, in a country where women continue to become a larger part of the workforce every year, and as the age of retirement continues to grow, there will inevitably be more women who will face discrimination on multiple grounds: specifically, for their age and sex. Thus, it is no wonder that "intersectional claimants," or claimants that belong to least two or more protected classes under the law, now make up the majority of the workforce.
However, despite the fact that intersectional claimants represent the majority of the population, many courts do not recognize an employment discrimination claim based on multiple protected characteristics. Circuit courts are split on whether a claimant can bring a claim based on sex (under Title VII) plus another protected Title VII characteristic. Further, even fewer circuits recognize claims based on sex (under Title VII) plus age under the Age Discrimination in Employment Act of 1967. Consequently, these types of "intersectional" claimants face varying burdens of proof based on the jurisdiction they reside in and the claim they decide to bring forward. This type of division is exactly what a leading scholar of critical race theory, Kimberld W. Crenshaw, warns can lead to identity erasure. Identity erasure occurs when the law does not recognize individuals who belong to multiple protected classes wholistically.
Indeed, different legal causation standards exist based on the type of claim workers bringing forward: the "motivating factor" standard for ADEA discrimination claims, and the "but-for" standard for age discrimination claims. Because this "but-for" standard has a higher burden of proof for plaintiffs, this causes individuals who belong to multiple protected classes to bisect their identity and often choose sex before their other traits within a sex -plus jurisdiction.
This Article discusses these circuit splits in detail as well as the different legal causation standards. In addition, it discusses recent case law such as the United States Supreme Court's Bostock v. Clayton County ruling, which has opened the door for future intersectional claims.This Article argues for statutory changes and highlights the need for courts to embrace a new understanding of intersectionality
First Page
341
Recommended Citation
Anna Maria Sicenica,
Increasing Representation: Expanding Intersectional Claims in Employment Discrimination,
61
Duq. L. Rev.
341
(2023).
Available at:
https://dsc.duq.edu/dlr/vol61/iss2/9