Yvette N. A. Pappoe is the author of “The Shortcomings of Title VII for the Black Female Plaintiff” to be published this fall in Volume 22.2 of The University of Pennsylvania Law School Journal of Law and Social Change.
July 2014 marked the 50th anniversary of Title VII of the Civil Rights Act of 1964 (the “Act” or “Title VII”), a landmark civil rights law that prohibits discrimination based on race, color, religion, sex or national origin. “Sex” was not included as a protected category when the bill was introduced in the United States House of Representatives. On February 8th, 1964, two days before the House approved the bill, Rep. Howard W. Smith of Virginia, a segregationist Democrat, offered a one-word amendment to the Act—sex—to “prevent discrimination against another minority group, the women.” 110 Cong. Rec. 2577 (1964). On its face, Smith’s amendment and Congress’s adoption thereof “catalyze[d] the modern feminist movement” and paved the way toward achieving gender equality in the workplace. But a cursory look behind the curtain reveals Congress’s motivation for adopting the amendment was not exactly borne out of a genuine desire to protect all women from discrimination in the workplace, but to protect white women from employment discrimination by providing recourse to bring claims for discrimination based on their sex. Rep. Martha Griffith of Michigan, who spoke in support of the amendment, feared that a Black woman would enjoy greater protection under the Act than a white woman without the addition of “sex” as a protected category. Specifically, she feared white women “w[ould] be the last at the hiring gate” without it. Rep. Griffith reasoned that based on the current language, an employer couldn’t legally reject a black man or woman, but could reject a white woman. Moreover, she argued, it would be unreasonable to give Black men and women equal employment rights and leave white women “down at the bottom of the list … with no rights at all.” In essence, Rep. Griffith and the six other representatives who spoke in support of the amendment, including Rep. Smith, didn’t believe it was fair for Black women to have “an open entrée into any particular field” without granting a white woman the legal recourse to challenge an employer’s discrimination. After a two-hour long floor-debate, the House adopted the amendment and sent the bill to the Senate, which adopted it without challenge.
Fifty-four years later, it turns out Congress’s fears that Black women would benefit more from Title VII were unjustified. Title VII has not only failed to protect women of color generally in the workplace, but Black women in particular. Since the passing of Title VII, various United States courts, including the Supreme Court, have decided numerous workplace discrimination cases. Black women face both structural and ideological barriers to redress in their employment discrimination claims and thus fare worse compared to other employment discrimination plaintiffs. The current framework courts use in individual employment discrimination cases negatively impacts Black female plaintiffs’ chances of success. Intersectionality, a term Kimberlé Crenshaw introduced and coined twenty-five years after Congress enacted Title VII, is an important lens through which we can evaluate the split among the circuits regarding whether to resolve multi-dimensional plaintiffs through an intersectional or independent lens. And it may help courts find solutions to alleviate the burden Black female plaintiffs carry in bringing employment discrimination claims.