Bostock’s Aftershock: Intersectional Discrimination Claims Following Bostock v. Clayton County

Though Bostock v. Clayton County’s most visible effect was its extension of Title VII protections to LGBTQ+ individuals, the manner in which the Supreme Court decided the case has broad implications for claims of intersectional discrimination. Intersectionality refers to the interconnected nature of social identities, such as age, race, and gender. Scholars and activists have repeatedly stressed that a person’s intersectional identity impacts her life differently than the mere sum of her constituent identities.[1] For example, a Black woman may experience inequity far differently than a White woman or a Black man, as her constituent sex and race identities form a confluent identity which engenders particularized forms of discrimination. Consequently, legal scholars have urged courts on a variety of occasions to accommodate claims for intersectional discrimination, particularly those that involve a mixture of two or more protected identities, such as race-sex claims.[2]

As it stands, a lack of consistency in courts’ handling of intersectional discrimination claims leaves victims of race-disability/age discrimination without a remedy. Though courts across the country have largely accepted certain intersectional claims, particularly those that derive fully from Title VII[3], courts have held that Title VII does not create a cause of action for intersectional claims predicated on discrimination on the basis of an individual’s membership in a protected class under Title VII and a protected class under another statute, such as the Age Discrimination in Employment Act.[4] Such holdings are particularly problematic in light of the near-total reluctance of courts to accommodate intersectional claims brought under statutes other than Title VII, such as the Americans with Disabilities Act or the ADEA.[5] To be more specific, this reluctance largely forecloses the possibility of bringing intersectional discrimination claims under any statute besides Title VII. As such, in jurisdictions that do not permit Title VII intersectional discrimination claims that implicate protected classes under both Tile VII and another antidiscrimination statute, plaintiffs who are victims of intersectional race-disability/age discrimination lack a viable pathway to remediation.

            Bostock, however, provides a glimmer of hope for these plaintiffs. In Bostock, the Supreme Court clarified the causation standards in Title VII and held that, provided “the plaintiff’s sex was one but-for cause of [discriminatory conduct], that is enough to trigger the law.”[6] While this holding was engineered to address Title VII’s applicability to discrimination on the basis of one’s sexual orientation and gender identity, it provides plaintiffs with ammunition to fight back against courts that do not allow intersectional claims that implicate Title VII and another antidiscrimination statute. In essence, by clarifying that membership in a protected class under Title VII need only be one but-for cause of discrimination in order to trigger Title VII, the Court appears to have foreclosed the argument that implicating another antidiscrimination statute would prevent a plaintiff from bringing an intersection discrimination claim under Title VII. After all, if a worker is discriminated against by virtue of the intersection between her age and race, for instance, then her race is at least one but-for causes of the discrimination, as, but-for her race, she would not have experienced the discriminatory conduct. Considering the unique ways in which the intersections of race and age/disability, for example, can engender discrimination,[7] the potential benefits of this side-effect from the Bostock decision cannot be understated.

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[1]  Katy Steinmetz, She Coined the Term ‘Intersectionality’ Over 30 Years Ago. Here’s What It Means to Her Today, Time (Feb. 20, 2020), https://time.com/5786710/kimberle-crenshaw-intersectionality/.

[2]  E.g., Yvette N.A. Pappoe, The Shortcomings of Title VII for the Black Female Plaintiff, U. Pa. 22 J.L. & Soc. Change 1 (2019).

[3]  One example of an intersectional discrimination claim that fully derives from Title VII is that of a race-sex discrimination claim.

[4]  See, e.g., Bauers-Toy v. Clarence Cent. Sch. Dist., 2015 WL 13574291 (W.D.N.Y 2015); Cash v. Walgreen Co., 2020 WL 1846535 (N.D. Miss. 2020).

[5]  See, e.g., Cartee v. Wilbur Smith Assocs., 2010 WL 1052195 (D.S.C. 2010); Pelcha v. MW Bancorp, Inc., 988 F.3d 318 (6th Cir. 2021).

[6]  Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1739 (2020).

[7]  See generally Alice Abrokwa, “When They Enter, We All Enter”: Opening the Door to Intersectional Discrimination Claims Based on Race and Disability, 24 Mich. J. Race & L. 15 (2018).