California Lights the Path to Equity with New Intersectionality Law

California Lights the Path to Equity with New Intersectionality Law

As of January 1, 2025, California Senate Bill 1137 has come into effect, making California the first state to expressly recognize intersectionality as a unique status in discrimination proceedings. California courts have long recognized that discrimination can be directed at a combination of protected characteristics beyond any singular protected category, Lam v. University of Hawai’i (9th Cir. 1994) 40 F.3d 1551. But this amendment to the Unruh Civil Rights Act, the Education Code, and the Fair Employment and Housing Act is the first in the nation to add express statutory protections for combinations of protected characteristics to anti-discrimination laws governing businesses, schools, and employers.

What does “intersectionality” mean for employment discrimination?

In employment discrimination cases, victims typically need to show that they were singled out based on a protected characteristic, like race, religion, gender, age, disability, or sexual orientation. While some employers will openly state their discriminatory motives – saying, for example, that they prefer not to hire individuals of a certain race or gender, or even using slurs in the workplace – most modern discrimination cases are based on subtler claims, where members of a protected class are treated differently than similar employees who are not members of the protected class. In these situations, victims typically focus on differences of treatment relative to “comparators,” or similar employees who were not members of the same protected class that were treated better than the victim of discrimination. The employer then seeks to prove that the individual victim was subjected to different treatment not because of their protected category, but due to some other legal reason. In doing so, the employer may point to other members of the protected class who were not subjected to the same kind of harm, or who have succeeded at the employer, to refute the idea that the protected class was the basis for harmful treatment.

For multiply-marginalized victims this process is complicated. Take, for example, a case where the victim employee is a woman who also has a disability, with a manager who expresses regular skepticism of her capacity to meet both her career and family obligations as a disabled mother before terminating her on claims of a “poor cultural fit.” But when she brings the claim for discrimination on the basis of sex and disability, the employer is able to point to both non-disabled women and disabled men who have succeeded under the same manager to refute allegations of discrimination. Without the ability to expressly claim intersectionality, the victim has to thread a fine needle in arguing that one discriminatory motive or the other provided the primary illegal motivation for the firing. Was the manager more biased against her disability or her gender in ordering her termination? The victim ultimately needs to prove that the termination was motivated by her protected characteristics – her gender and disability – so any muddying of the waters as to the actual motivation behind her termination tends to help the defendant employer.

Codifying intersectionality as a distinct protected category of discrimination reflects the common sense understanding of the above predicament. The fact that the manager may have been just fine with disabled men and non-disabled women is not as relevant where the discrimination was based on a unique set of stereotypes directed at the intersection of the two identities; in this example, the belief that a disabled woman could not capably manage a job on top of the gender role the manager expected her to fill in the home.

What Changes?

Even though California courts already recognized that discrimination can arise from combinations of protected categories, the codification of that understanding is a powerful step forward for eliminating bias from our communities. The bill puts employers on notice that discrimination complaints need to be evaluated holistically, and that trainings and methods to eliminate bias will need to expressly address intersectionality. By incorporating intersectionality in the existing policy language before the Fair Employment and Housing Act, California has also established that preventing intersectional discrimination is a fundamental public policy of the state. This opens the door for employee victims of intersectional discrimination to bring additional “Tameny” claims for wrongful termination in violation of a fundamental public policy based on constitutional or statutory provisions. Finally, California often influences other jurisdictions to take similar steps. Hopefully SB 1137 is the first step to nationwide recognition and elimination of the bias faced by multiply-marginalized community members.

If you believe your employer has discriminated against you on the basis of a protected characteristic or any combination of protected characteristics, please contact Bryan Schwartz Law, P.C.