California Could Soon Lead the Nation in Explicitly Recognizing Intersectionality in Anti-Discrimination Laws

In 2024, women continue to face high rates of gender-based harassment and discrimination at work, at school, and beyond. For women of color, the issue is compounded when gender discrimination intersects with other identities—such as race, age, disability, and sexual orientation. This phenomenon is known as intersectionality, a term coined and popularized by Professor Kimberlé Crenshaw in 1989. Professor Crenshaw.

Intersectionality refers to how multiple forms of discrimination operate together, exacerbate each other, and often result in amplified forms of prejudice and harm. Crenshaw’s theory specifically cites U.S. civil rights laws as egregiously overlooking the increased and unique harm caused by intersecting forms of discrimination. One such example is how intersectional the gender and racial wage gap and how it impacts workers across the country.

In California, women who work full-time year-round are paid on average 89 cents per dollar compared to white men. This gap grows to 60.6 cents per dollar for Black women compared to white men, and a dismal 43.8 cents per dollar for Latinas. The wage gap for women of color is a result of a historical devaluation of the value of their labor, and continues to hold women, their families, their communities, and the economy back. In California, about 41% of mothers are the sole or primary breadwinners in their families. One study found that women across the U.S. lose a combined total of more than $1.6 trillion per year due to the wage gap.  In addition, studies show that the majority of women suffering the brunt of workplace sexual harassment are women of color.

The U.S. Equal Employment Opportunity Commission (EEOC) and some courts, including the Ninth Circuit, have correctly recognized that protected classes often overlap, resulting in a unique harm for individuals who are people with intersecting identities. However, in practice, courts and other factfinders have treated intersectional claims inconsistently, pointing to a need for legal clarification. I For example, an employer might claim that a Latina woman worker does not have a failure-to-promote claim if the employer presents evidence that white women and Latino men have been promoted. In some circumstances, courts and juries have failed to recognize the full extent of plaintiffs’ experiences—namely, the unique harm of overlapping forms of discrimination or harassment. Empirical studies demonstrate that plaintiffs making intersectional claims are less than half as likely to win their cases as are other plaintiffs. In some cases, plaintiffs have been forced to focus their claims on just one protected class, which fails to paint a full picture of the discrimination or harassment they experienced.

To enshrine the concept of intersectionality into California anti-discrimination laws, Equal Rights Advocates co-sponsoring SB 1137, along with the California Employment Lawyers  Association and Legal Aid at Work. The bill was introduced by California State Senator Lola Smallwood-Cuevas and would make California  the first state in the country to explicitly recognize intersectionality in anti-discrimination laws.

SB 1137 clarifies existing California law by explicitly recognizing intersectionality in provisions prohibiting discrimination and harassment in the California Fair Employment and Housing Act (FEHA) (applicable to employment and housing), the Unruh Civil Rights Act (applicable to public accommodations and business establishments), and the California Education Code (applicable to K-12 schools and institutions of higher education).

The concept of intersectionality captures the unique, interlocking forms of discrimination and harassment experienced by many individuals in the workplace, at school, and throughout broader society. SB 1137 will provide critical guidance to courts, juries, and arbitrators  to ensure that plaintiffs’ full experience and harm is recognized.