Intersectional Bias and the Courts: The Story of Rogers v. American Airlines

Intersectional Bias and the Courts: The Story of Rogers v. American Airlines

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In Rogers v. American Airlines, a federal district court concluded that an employer could prohibit the wearing of all-braided hairstyles in the workplace without violating proscriptions against race or gender discrimination in employment under Title VII of the Civil Rights Act of 1964. Arguing that American's grooming policy discriminated against her as a woman and, specifically, as a black woman, the plaintiff chose to rely on the interactive and mutually-reinforcing impact of race and gender as well as their independent effects. However, the court chose to treat the allegations of race and gender discrimination in the alternative—as wholly separate from each other—thus, denying any interactive relationship between them. The judge denied the plaintiff's sex discrimination claim because all of American's employees in customer-contact positions, whether male or female, were prohibited from wearing all-braided hairstyles. The court also denied the race discrimination claim on the ground that the grooming policy similarly restricted members of every race and did not single out any particular group for differential treatment. The court drew a distinction between biological and cultural conceptions of race, limiting protection against discrimination to the physical manifestations of racial identity—those over which an individual has no control-and denying protection for identity-related choices of personal expression. According to the court, all-braided hairstyles were not the product of natural hair growth, but of “artifice.” Like many cases in anti-discrimination law, Rogers has long been criticized by legal scholars as an example of how courts unnecessarily limit the definition of discrimination and, ultimately, the reach of law. The decision permits employers to discriminate based on race, so long as they do so using factors other than immutable traits. This distinction allows employers to create myriad proxies for race—hairstyle, name, speech pattern, accent, dialect, language choice—and, without judicial review, to disprefer members of subordinated racial groups on the basis of aesthetic, cultural, and statistically associated traits. What the Rogers decision did not say is that Congress nowhere dictated this limitation in Title VII. The court also failed to acknowledge that discriminatory intent often manifests itself in policies that do not explicitly mention race but mention instead proxies for race or racially associated traits such as hairstyles. Making matters worse, nothing in the decision requires employers to make their aesthetic choices known to employees and job applicants, with the result that affected individuals often do not even know why they have not been hired or promoted. The Rogers picture becomes even more disturbing when it is kept in mind that the court takes no account of the dignitary and psychological interests involved in individual expressions of racial and ethnic identity—expressive interests which frequently have been taken into account in defining the protections available against gender discrimination-and it does not consider the message of hostility, intimidation, and inferiority communicated by workplace rules that target the culturally specific behaviors of traditionally subordinated racial groups. Rogers also reflects a standard judicial response to a classic intersectional claim. The plaintiff argued that she suffered a form of discrimination that cannot be understood by analyzing one of the enumerated bases of discrimination-race or sex-isolated from the other. Intersectional claims require an intersectional analysis, one which proceeds from the understanding that “[i]t is impossible to isolate any one of the components” of an interacting complex of two or more forms of discrimination “or to separate the experiences that are attributable to one component from the experiences attributable to the others.” In a case such as Rogers, an intersectional analysis would necessarily examine the issue at the core of the plaintiff's complaint: that race and gender discrimination operated together to affect her as a black woman in a way that was not experienced by either white women or black men. The logic of the intersectional critique is difficult to refute; it is supported by a substantial body of scholarship in law and across academic disciplines. The legal academic debate was initiated by women of color who challenged the ways in which problems arising at the intersection of race and gender are marginalized in law, feminism, and antiracist politics. This early scholarship also made clear that the intersectional critique extends to other forms of bias, including class and sexual orientation, to any intersectional group, and to any area of law. Subsequent legal scholarship has developed analyses that take account of multiple systems of subordination, the ways in which they interact, and the bodies of law that support them. Though issues of intersectional bias began to appear in court decisions shortly after the passage of Title VII, courts have been slow to accept the basic tenets of the intersectional critique and to apply a coherent intersectional analysis to cases that call for it. This chapter examines the judicial reception of intersectional analysis in three sorts of cases, all of which include race as one of two or more protected categories involved in the dispute. First, based primarily on a sense that, in enacting Title VII, Congress intended to provide protection against intersectional bias, the courts have recognized the right of individuals to bring intersectional claims. However, judges have yet to set forth a coherent theory of intersectional discrimination or a proof model for establishing it. Second, in employment discrimination cases involving the intersection of categories of protection, one covered by Title VII, and the other, such as age or disability, by another employment discrimination statute, courts have equivocated over the availability of intersectional protection absent a clear congressional mandate to permit cross-statutory claims. Third, in jury discrimination cases brought under the Fourteenth Amendment, the Supreme Court has thus far refused to protect against intersectional bias, though some state courts have done so under comparable state constitutional provisions. Courts first dealt with intersectional claims involving race and gender bias brought by women of color. Accordingly, many, though not all, of the cases examined here involve the intersection of race and gender as it affects this group. For this reason, the story of Rogers v. American Airlines is a particularly apt way to explore the implications of intersectional claims. But as the cross-statutory employment discrimination and jury selection cases demonstrate, the intersectional critique has broad application to discrimination directed at any individual or group affected by two or more bases of subordination.

Source Publication

Race Law Stories

Source Editors/Authors

Rachel F. Moran, Devon Wayne Carbado

Publication Date

2008

Intersectional Bias and the Courts: The Story of Rogers v. American Airlines

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