“A Reasonably Comparable Evil”: Expanding Intersectional Claims Under Title VII Using Existing Precedent *
* This piece took first prize in the 2021 American Constitution Society Constance Baker Motley National Student Writing Competition.
Patrick Berning-O’Neill * | 24.4 | Article | Citation: Patrick Berning O’Neill, “A Reasonably Comparable Evil”: Expanding Intersectional Claims Under Title VII Using Existing Precedent, 24 U. Pa. J. Const. L. 907 (2022).
Title VII of the Civil Rights Act of 1964 (“Title VII”) makes it unlawful to discriminate against an individual in employment “because of such individual’s race, color, religion, sex, or national origin.” The Supreme Court has since clarified that discrimination includes both harassment and stereotyping based on a protected class. Legal scholars have increasingly recognized and explored how intersectional discrimination, in which people are discriminated against on the basis of more than one trait or characteristic, relates to Title VII and other anti-discrimination laws. A key insight of intersectional theory is that this kind of discrimination is not merely additive (discrimination against Black women equals race discrimination plus sex discrimination), but that “categories may intersect to produce unique forms of disadvantage.”
For example, an employer willing to hire Black men and white women might have a particular prejudice towards Black women with children as “welfare mothers.” This sort of discrimination emerges from social attitudes towards specific combinations of identities. But while it may seem intuitive that intersectional discrimination is prohibited by Title VII, circuit courts are split on how, or even whether, to allow intersectional claims. This is a significant issue, since upwards of twenty percent of all Title VII claims involve allegations of discrimination on multiple bases, amounting to tens of thousands of claims every year. Where such claims are allowed, they are usually subjected to significant doctrinal constraints and are substantially less likely to succeed than single-basis claims. The Supreme Court has yet to weigh in on intersectional discrimination, resulting in a proliferation of different approaches across circuits.
This Article argues that claimants can use the existing Supreme Court precedent of Oncale v. Sundowner Offshore Services, Inc. to contend that intersectional discrimination is a “reasonably comparable evil” to the single-basis discrimination contemplated by Congress in 1964, and therefore falls under the broad and flexible interpretation the Court has applied to Title VII’s “because of” language.
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* Patrick Berning-O'Neill wrote this paper as a student at the University of Chicago Law School. He graduated from UChicago in June 2021 and is now an attorney in Chicago. He would like to thank the Equal Employment Opportunity Commission's Chicago office for the summer research assignment that was the inspiration for the paper. He would also like to thank Matthew Guillod and Brigid Larkin for their invaluable editing, and the American Constitution Society for hosting the Constance Baker Motley National Student Writing Competition, in which this paper won the first-place prize.