Senator Smallwood-Cuevas Introduces Intersectionality Bill to Recognize Amplified Harm of Overlapping Forms of Discrimination
Senator Lola Smallwood-Cuevas (D-Los Angeles) has introduced SB 1137 – Intersectionality in Anti-Discrimination Law – that would make California the first state in the nation to explicitly recognize the concept of intersectionality in state anti-discrimination laws.
SB 1137 would clarify that California laws prohibiting discrimination and harassment on the basis of protected characteristics — such as race, gender, age, disability and sexual orientation — also apply to intersectional identities, where two or more of the characteristics result in a unique form of discrimination. For example, a Black woman could experience workplace discrimination based on her race or her gender, but also on a combination of the two, making her subject to a set of stereotypes and assumptions not shared by Black men or white women.
“Discrimination transcends singular dimensions. SB 1137 makes it clear that discrimination not only happens based on one protected class, such as race, gender or age, but any combination thereof. This bill is common-sense reform that addresses the intersectionality of discrimination cases, providing greater protections for Californians, especially those from our most marginalized communities of color.”
Intersectionality is a term coined and popularized in 1989 by Professor Kimberlé Crenshaw, Co-Founder and Executive Director of African American Policy Forum (AAPF), referring 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.
As the law currently operates, courts and factfinders treat intersectional claims inconsistently, showing a need for legal clarification. Workers are often forced to focus their complaint on one aspect of their identity, pigeonholing themselves in a way that does not reflect reality. For example, an employer could claim an Asian woman employee’s complaint is unfounded by pointing to white women coworkers who say they do not experience gender discrimination, and/or Asian men employees who say they do not experience race discrimination.
The bill would help to address the economic realities of pay discrimination that disproportionately harms California women of color and their families. U.S. Census Bureau data show that women working full-time year-round are paid on average 84 cents per dollar paid to men, and that gap grows to 69 cents per dollar for Black women compared to white men, and 59 cents for Latinas. In addition, studies show that the vast majority of women suffering the brunt of sexual harassment in the workplace are women of color, which the bill also addresses.
The Equal Employment Opportunity Commission (EEOC) and some courts (including the 9th Circuit) have already recognized that protected characteristics overlap, and that discrimination and harassment may be directed at more than one aspect of a person’s identity at a time, often exacerbating harm. For example, the 9th Circuit in Lam v. University of Hawaii (9th Cir. 1994), reversed a lower court ruling against an Asian-American female professor because the hiring committee had supported an Asian man and a white woman. The Ninth Circuit held that “Asian women are subjected to a set of stereotypes and assumptions shared neither by Asian men nor by white women. In consequence, they may be targeted for discrimination even in the absence of discrimination against Asian men or white women.”
SB 1137 enshrines these key principles of intersectionality into law in order to provide guidance to California state courts and ensure that plaintiffs’ full experience of harm is recognized.
Senator Lola Smallwood Cuevas represents the 28th Senate District, which includes the communities of South Los Angeles, Culver City, West Los Angeles, Century City and Downtown Los Angeles. Senator Smallwood-Cuevas spent more than two decades serving as a labor organizer, civil rights activist and community advocate before her election to the State Senate. She resides in the View Park community of South Los Angeles with her family.
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