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February 03, 2023

What is intersectionality – and how to handle it

Discrimination cases can arise from biases based on race, gender, age and more. But representing plaintiffs who can claim more than one of those protected classes poses its own set of challenges, according to a panel of employment lawyers who spoke at a program Feb. 2 at the American Bar Association Midyear Meeting in New Orleans.

The session, “We Are (All of) What We Are: Litigating Intersectional Discrimination Cases,” was sponsored by the Section of State and Local Government Law.

“Nobody is linear. Nobody has just one identity,” said Phillis Rambsy of Rambsy Law, based in Nashville, Tennessee. “A few identities come into play with everything that we do. No person is one thing.”

Kimberlé Crenshaw, a law professor at Columbia Law School and UCLA, coined the term intersectionality, which she used to describe the double bind of simultaneous racial and gender prejudice, particularly pertaining to Black women. The panelists expanded their discussion of the emerging area of intersectionality to include other categories such as disability and sexual orientation.

“We all intersect but we don’t see it,” said Deborah Marcuse, firm managing partner and Baltimore managing partner at Sanford Heisler Sharp. “How does that happen?”

Rambsy said employment lawyers have traditionally been taught to look at discrimination through a single lens, such as race or sex. But it can go beyond just one category and involve overlapping identities. “You can’t pull them apart,” she said.

But Rambsy admitted that sometimes lawyers have to do just that. When making a discrimination case, attorneys must weigh their choices: move forward with establishing intersectionality in the claim; drop one identity in hopes that a jury will understand one better than another; or take responsibility to educate the jury about the intersecting identities. Rambsy is a proponent of keeping it simple as often the best approach.

Lawyers also must understand how history, stereotypes and cultural phenomena play into the equation when bringing forth a case, she added.

“We are storytellers. We are telling a narrative that we hope a jury will like our version better and award our client damages,” Rambsy said. But you can’t successfully tell the story and not be cognizant of history and intersectionality.

Marcuse agreed, adding that “as a lawyer you have to understand what it was like to be your client being where they were and what it’s like to be them.”

But to have a fighting chance to appear before a jury and tell your client’s story, lawyers must first get past a judge and avoid a summary judgment, which is especially difficult in employment discrimination cases.

Rambsy and Marcuse offered strategies to help lawyers raise awareness of intersectionality and become better advocates for their clients:

  • Engage in open discussions about the issue. Talking about intersectionality will educate legal professionals, including judges and other attorneys, and help them understand it.
  • Educate yourself. Read works about the issue to enhance your own understanding.
  • Walk it like you talk it. Call out people and organizations — even if they’re involved in civil rights work — when they fail to uphold the values and principles of respect, equity and inclusion, Rambsy said. 
  • Listen intently to clients. Knowing their whole story will help you effectively tell it, Marcuse said.

The panel was moderated by Clare Horan of Sanford Heisler Sharp.