The Proposed Ban on Intersectional Discrimination

By Donn Meindertsma

The District of Columbia Council is pursuing legislation that would explicitly permit discrimination claims under the Human Rights Act (DCHRA) based on a combination of protected characteristics, as opposed to claims based on a single protected trait (e.g., race). The legislation is B23-0498, the Intersectional Discrimination Protection Amendment Act of 2019, which was introduced by several Council members earlier this month.

Intersectional discrimination means, simply, discrimination against an individual for a combination of protected traits—say, discrimination because an employee is a Filipino lesbian. The concept goes by various labels and variations, including combination discrimination, multiple-motive discrimination, and “sex-plus” discrimination.

The DCHRA currently lists 21 protected traits (see sidebar), so one might think that the law is already sufficiently comprehensive. The fact that the Council is introducing intersectional discrimination protection suggests the Council fears otherwise. Combining some or all of the 21 traits would, of course, lead to an exponentially larger list of protected classes, from “crazy old Russians” (disability, age, and ethnicity combined) to divorced Republican Hispanic trans workers in graduate school.

The legislation makes straightforward changes to the language of the DCHRA. Specifically, in each section where the DCHRA lists the protected traits, the bill would add the phrase, "or any combination of the foregoing traits."

Is the proposed law necessary? We’re unaware of any DC court that, at least in recent memory, has refused to recognize an intersectional discrimination theory. In fact, courts applying federal law have allowed intersectional discrimination claims for decades. For example, if an employee pursuing a claim under Title VII of the Civil Rights Act checks two or more boxes on the charge of discrimination, say race and gender, the EEOC will consider whether discrimination occurred because the charging party is African-American, a female, and/or a “black woman.” For more than a decade (since 2006), the EEOC’s Compliance Manual has covered intersectional discrimination.

Intersectional discrimination claims may pose defense challenges. For example, if our hypothesized charging party alleges that she did not get a promotion she deserved, the employer can’t really rebut that allegation by showing that it routinely promotes African-Americans if they’re male, or routinely promotes women. As one federal court recently stated: “The fact that every position for which the plaintiff applied was filled by a male or non-black female does not defeat her claim that she was discriminated against as a black female.”

By the same token, though, the more particular the employee’s claim—think back to the category of crazy old Russians—the more difficult it may be to prove it. How do you prove that the employer had animus against such a tiny class of individuals? For that reason, some plaintiffs resist defense efforts to combine the alleged protected traits into a “combination claim.”

A stickier issue is whether an intersectional claim can be based on multiple statutes. While Title VII protects against race discrimination, for example, age discrimination is barred by the Age Discrimination in Employment Act (ADEA). These federal laws have different substantive and procedural provisions, and a combination claim could present thorny questions of which law applies. Some courts have declined to recognize intersectional claims based on multiple laws. As one court stated last year, “there is simply no authority for this so-called “intersectional” discrimination cause of action advanced by Plaintiff that seeks to transmogrify several different statutes into a new superseding legal cause of action.” This past June, the EEOC filed a friend of the court brief in the U.S. Court of Appeals for the Tenth Circuit arguing that Title VII allows combination claims based on sex and age. The brief acknowledged that no federal appellate court has yet interpreted Title VII that way. This is less of an issue under District law because a single law, the DCHRA, prohibits nearly all forms of discrimination.

Whether or not the amendment to the DCHRA is truly necessary, the legislation proposing the changes is likely to pass into law with little if any opposition.

If you have any questions about this development, please contact us.

This summary is provided as an informational tool. It is not intended to be and should not be considered legal advice, and receipt of this information does not establish an attorney-client relationship.