The Shortcomings of Title VII for the Black Female Plaintiff

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Various United States courts, including the Supreme Court, have decided numerous workplace discrimination cases in the past four decades. Kimberlé Crenshaw introduced and coined the term “intersectionality” 25 years after Congress enacted Title VII. The formal recognition of intersectionality opened the gate for several legal scholars to criticize Title VII jurisprudence related to plaintiffs who bring multidimensional claims—usually women of color plaintiffs—arguing, for example, that “complex discrimination” claimants face both structural and ideological barriers to redress and thus fare even worse when compared to other employment discrimination plaintiffs.

I argue that Black women bear the brunt of these structural barriers to recovery in the current Title VII legal landscape and offer suggestions. This Article examines the way in which the current framework courts employ in individual employment discrimination cases negatively impacts Black female plaintiffs’ chances of success in pursuing employment discrimination claims. I use intersectional theory as a backdrop to analyze a split among several federal appellate circuits regarding whether to resolve claims brought by multi-dimensional plaintiffs through an intersectional lens.

Through a review of legal scholarship, case law, social psychology, and critical race theory literature on Title VII, feminism, and race, this Article suggests three solutions on the executive, legislative, and judicial levels to alleviate the burden Black female plaintiffs carry in bringing employment discrimination claims: 1) the Equal Employment Opportunity Commission should issue clearer guidelines and an analytical framework to guide courts in resolving intersectional claims; 2) Congress should amend the language of Title VII to include “or any combination thereof” to allow for plaintiffs to seek redress by combining two or more protected classes; and 3) the Supreme Court should resolve the circuit split by creating an analytical framework that employs an intersectional lens in Title VII statutory construction


22 University of Pennsylvania Journal of Law & Social Change 1 (2019).


Civil Rights and Discrimination | Law and Race

Recommended Citation

22 University of Pennsylvania Journal of Law & Social Change 1 (2019).