Multiple Discrimination in the USA
A Growing Recognition of the Interlocking Nature of Disadvantage
Unlike that of Europe, jurisprudence in the US has shown a developing recognition of the issue of multiple discrimination.
The United States is one of the few jurisdictions where claims of multiple discrimination are permitted and so legal commentators often look to US case law to see how anti-discrimination legislation could be developed elsewhere. The ability of a legal system to adequately address cases where claimants have suffered discrimination on multiple grounds is vital if the law is to be able to prevent disadvantage and to compensate sufferers sufficiently. However, although great strides were made in the US when claims of additive discrimination were allowed, the advancement of the recognition of multiple discrimination has since stalled, meaning that the situation for claimants is not as favourable as it could be.
Claims of Multiple Discrimination
Although the approach of the US courts permits multiple claims, it allows only an additive sex plus race comprehension of multiple discrimination. In Jefferies v Harris County Community Action Association (1980), the Court applied a "sex plus" analysis to a claim of multiple discrimination brought by a black woman.
It was said that Title VII of the Civil Rights Act of 1964 (the prohibition of discrimination by employers on grounds of race, colour, religion, sex or national origin) permitted that where no discrimination could be proven against white women or black men, then a claimant could plead sex discrimination plus another discriminatory factor limited to sex, thus greatly increasing a claimant’s chances of success. Given that more than one social characteristic could be considered, even if that could only occur after a single ground formulation of the claim was considered, this clearly permitted claims involving multiple grounds.
A Reversal of Policy
Although the signs were initially positive, this decision was, unfortunately, subsequently limited by the Court in Judge v Marsh (1993) which stressed, in an effort to prevent groups being created for every possible combination of grounds, that it could be sex plus one other head of discrimination only.
In a 1989 article in the Yale Law Journal, Cathy Scarborough noted that this "sex plus methodology forces Black women to choose gender as their principle identification, thereby perpetuating a fundamental misunderstanding of the nature of the discrimination experienced by Black women, most of whom do not consider their race to be secondary to their sex".
The limitation created by the Judge decision reflects a desire by the Courts to keep the complexity of discrimination law to a minimum, effectively creating a compartmentalised understanding of discrimination. Seemingly then, the experiences of claimants in the United States suggest that it may not be enough simply to minimise the procedural and legislative hurdles to multiple discrimination claims created by separate anti-discrimination statutes. Rather, a more fundamental re-conceptualisation of what constitutes discrimination may be required.
The importance of avoiding a situation where claimants will think up category combination after combination in order to find one that succeeds in order to avoid the wasting of time and money is recognised. However, limiting the permissible number of multiple factors that will be considered by the courts to two seems like an arbitrary cut off point. It does recognise the specific nature of discrimination suffered by black women but does nothing to tackle that suffered by black lesbians or all other person’s whose social nature is not limited to two factors or, indeed, where the two grounds of discrimination complained of are not race and sex but some other combination.
Despite its limitations, the example of jurisprudence in the US is valuable because it demonstrates that multiple grounds (even if, in practice, these have been limited to race and sex) can be successfully argued without throwing the legislative process into chaos.
The Future for Claims of Multiple Discrimination
It seems clear that, although there is greater recognition of multiple discrimination in the US than in many other jurisdictions, the current legal provisions are far from adequate. A change of approach is certainly necessary and, given that the US approach has so far been limited to the consideration of the additive approach to multiple discrimination, it will be interesting to see if an intersectional approach is taken in the future.
References:
Scarborough, C. "Conceptualising Black Women's Employment Experiences" (1989) 98 Yale LJ 1457
Abrams, K. "Title VII and the Complex Legal Subject" (1994) 92 Michigan L Rev 2479
