Intersectionality and Title VII: A Brief (Pre-)History

INTRODUCTIONTitle VII was twenty-five years old when Kimberle Crenshaw published her path-breaking article introducing "intersectionality" to critical legal scholarship.1 By the time the Civil Rights Act of 1964 reached its thirtieth birthday, the intersectionality critique had come of age, generating a sophisticated subfield and producing many articles that remain classics in the field of anti-discrimination law and beyond.2 Employment discrimination law was not the only target of intersectionality critics, but Title VII's failure to capture and ameliorate the particular experiences of women of color loomed large in this early legal literature.3 Courts proved especially reluctant to recognize multi-dimensional discrimination against African American female plaintiffs, reenacting the phenomenon encapsulated in the title of a 1982 Black feminist anthology: All the Women are White, All the Blacks Are Men, But Some of Us Are Brave.4 By the mid-1990s, most courts no longer rejected intersectional claims out of hand.5 But well into the twenty-first century, scholars find that "complex discrimination" claimants fare even worse than other employment discrimination plaintiffs, facing both structural and ideological barriers to recognition and redress.6Although the term "intersectionality" dates to the late 1980s, the concept's history predates the Civil Rights Act itself.7 Moreover, what we now call intersectionality crucially shaped Title VII from its inception. Over the past two decades, historians have uncovered the critical role of intersectionality- and of women of color-in pre-Civil Rights Act activism against sex- and race-based employment discrimination; in the enactment of Title VII's sex discrimination amendment; in early enforcement efforts; in advocacy to expand the definition of sex discrimination (to include, for instance, sexual harassment, pregnancy discrimination, and discrimination against unmarried parents); and in the development of constitutional sex equality arguments that influenced, and were shaped by, the evolution of Title VII.8History, legal theory, and (to a lesser extent) anti-discrimination doctrine all incorporate accounts-explicit and implicit-of the relationship between intersectionality and Title VII. Rarely, however, do these accounts intersect (so to speak). This Essay is a preliminary and partial effort to put those disparate literatures in conversation, and to focus attention on the pre-history of intersectionality and Title VII. Doing so reveals how the insights Crenshaw and her contemporaries brilliantly theorized and elaborated during Title VII's second quarter-century are part of a longer and more complicated history than we often acknowledge.9I. THE MYTHOLOGY OF TITLE VII'S SEX AMENDMENTFor much of the Civil Rights Act's first quarter-century, the origins of Title VII's "sex" amendment10 were shrouded in layers of mythology and (sometimes willful) misunderstanding. Skeptical commentators and courts routinely dismissed the amendment as a "joke" or "fluke," born of segregationist antipathy to African American civil rights.11 At best, went the conventional wisdom, Title VII's prohibition on sex discrimination was an illconceived afterthought; at worst, a "killer amendment" designed to scuttle the civil rights bill and destined to undermine its primary purpose.12 Government officials, including early EEOC members, explicitly prioritized race discrimination and denigrated the sex amendment's importance.13 This dismissive attitude toward the sex amendment, together with increasingly organized feminist activism and unexpectedly voluminous sex discrimination complaints flooding the EEOC, galvanized a resurgent women's movement to demand real protection against employment discrimination.14Early and influential accounts of the Civil Rights Act's enactment perpetuated the myth that the sex amendment's passage was little more than the accidental byproduct of segregationist mischief. …