The Ninth Circuit’s decision in Lam v. University of Hawaiʻi is the “high water mark” of intersectional Title VII jurisprudence. In Lam, the Ninth Circuit explicitly adopted an intersectional framework, reprimanded courts for bisecting intersectional identities in Title VII claims, and cited Professor Kimberlé Crenshaw’s seminal article on intersectionality in employment discrimination. But, under this clear green light to embrace intersectionality, have courts done so?

This Note suggests not. Despite thirty years since Lam, courts have struggled to conceptualize the intersectional identities of plaintiffs and the multifaceted discrimination they face. While intersectionality has become an increasingly popular concept in the mainstream media, academia, and even with the general public, courts in the Ninth Circuit have meagerly developed intersectional doctrine in the thirty years since Lam and often flat-out disobey Lam’s holding to retreat from intersectionality all together.

This Note begins with a brief summary of intersectionality as a legal framework then situates Lam within the existing circuit court split on intersectionality in Title VII claims. I break down the Lam opinion’s rich intersectional holdings and explain how courts in the Ninth Circuit have interpreted Lam. Here, I offer a descriptive analysis that categorizes court decisions by the scope of intersectionality permitted and the treatment of intersectional evidence. By analyzing how courts within the Ninth Circuit implemented Lam, this Note unearths how courts have come to understand intersectional discrimination as a whole. Lastly, I identify doctrinal and policy reforms necessary to properly adjudicate intersectional claims and illuminate the green-light of Lam.

Introduction

“What was especially galling to the faculty who did not want to hire her, was that she did not act the way an Asian American women ‘should’ act: she was too outspoken, she was too radical in her politics, she was abrasive. Although,” Berkeley Law Professor Catherine Fisk remarked to me, “there is no way you can find Maivân abrasive; she’s a delightful human being.”[1]

Professor Maivân Clech Lâm is a “brilliant” person.[2] She obtained three graduate degrees,[3] published two law review articles,[4] taught at Hawaiʻi Loa College and lectured at the University of Hawaiʻi, and is fluent in English, French, Vietnamese, and Thai.[5]

With her qualifications, Lâm applied to be director of the Pacific Asian Legal Studies program at the University of Hawaiʻi’s law school in the fall of 1987.[6] As a Vietnamese woman and scholar herself, the position was more than fitting. The law school sought candidates with excellence in scholarship and teaching in Pacific-Asian law, familiarity with Asian and Pacific organizations and institutions, and foreign language abilities.[7] By January of 1988, the committee prepared a short list of ten names to submit to the faculty; Lâm easily made the list. In fact, the chair of the committee, Professor Mari Matsuda, chose Lâm as “one of her top two candidates.”[8]

But then, a new chair took over: Professor A.[9] Under Professor A’s leadership, Lâm’s once favorable application was the subject of “vigorous debate.”[10] Professor A said that Lâm was “not collegial,” “a poor scholar,” “had poor administrative ability,” and “was unfit to teach anywhere on the University of Hawaiʻi campus.”[11] While Professor A was chair, the appointments committee eschewed the short list of ten names, instead opting for forwarding a single candidate: a White man.[12]

The decision not to hire Lâm was “controversial.”[13] In a recent interview with Professor Fisk, Lâm’s appellate counsel, Fisk explained that this case turned on racist and sexist stereotypes of Asian women. For the faculty who did not want to hire Lâm, “it was not just that she was Asian and a woman, it was that she was an ‘uppity’ woman or an ‘uppity’ Asian, or worst of all an ‘uppity’ Asian woman.”[14]

In response, Lâm sued the University of Hawaiʻi under Title VII of the Civil Rights Act for discrimination on the basis of her race, sex, and national origin.[15] Although the chance of winning was “almost impossible,” Fisk explained that Lâm saw this litigation as an extension of her activism—a “very grassroots, community-driven way to challenge the power structure and institutionalized racism and inequality” in Hawaiʻi.[16] The University’s decision to not hire Lâm spiked renewed outrage amongst community members and activists against the systemic racism of the state’s institutions,[17] as well as “newspaper and radio coverage” throughout the state.[18] The Equal Employment Opportunity Commission, the American Association of Law Schools, the American Bar Association, and Hawaiʻi legislators even formed a “support group” around the issue.[19]

Even with robust community support for Lâm, the District Court of Hawaiʻi ruled against her and granted the University’s motion for summary judgment.[20] The court emphasized that the University favorably considered two other candidates: an Asian man and a White woman.[21] Therefore, according to the court, the chair of the appointment committee could not have possibly discriminated against Asian women.

On appeal, however, the Ninth Circuit reversed. Parting from precedent, the Ninth Circuit instead recognized that discrimination against Asian women could not be simply reduced to discrimination against women plus discrimination against Asian people. Intersectional discrimination, the court held, made race and sex inseparable in Lâm’s employment discrimination claim.[22]

The Ninth Circuit’s decision in Lam v. University of Hawaiʻi is often heralded as the “high water mark” of intersectional Title VII jurisprudence.[23] And for good reason. In Lam, the Ninth Circuit explicitly adopted an intersectional framework, reproached courts for bifurcating intersectional identities, and relied directly on the scholarship of Professor Kimberlé Crenshaw, the scholar who first coined the term intersectionality.[24]

Lam presented a clear green light for courts in the Ninth Circuit to embrace intersectionality in employment discrimination claims. But have courts done so? This Note suggests not. Despite thirty years since Lam, courts have struggled to conceptualize the intersectional identities of plaintiffs and the multifaceted discrimination they face. While intersectionality has become an increasingly popular concept in the mainstream media, academia, and even with the general public,[25] courts in the Ninth Circuit have meagerly developed intersectional doctrine in the thirty years since Lam. And often, these courts flat-out disobey Lam’s holding in retreat from intersectionality all together.

This Note begins with a brief summary of intersectionality as a legal framework in Part I. Then, in Part II, I situate Lam among the law of other circuits. In Part III, I break down the Lam opinion’s rich intersectional holdings. In Part IV, I explain how courts in the Ninth Circuit have interpreted Lam. Here, I offer a descriptive analysis that categorizes court decisions by the scope of intersectionality permitted and the treatment of intersectional evidence. By analyzing how courts within the Ninth Circuit implemented Lam, this Note unearths how courts have come to understand intersectional discrimination as a whole. Lastly in Part V, I identify doctrinal and policy reforms necessary to properly adjudicate intersectional claims, illuminate the green-light of Lam, and increase access to justice for plaintiffs facing intersectional discrimination.

I. Intersectionality Framework

The Ninth Circuit explicitly adopted an intersectional lens in Lam. In determining that the district court “bisect[ed]” Lâm’s identity and “distort[ed] the particular nature of [her] experiences,” the court cited Professor Crenshaw’s seminal article, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscriminatory Doctrine, Feminist Theory and Antiracist Politics.[26] In it, Crenshaw coined the term intersectionality to diagnose the dearth of remedies for Black women in American antidiscrimination law.[27]

In her article, Crenshaw argued that traditional antidiscrimination law operates in a “single axis framework” where judicial inquiry into discrimination depends on individuals placing the harm they have experienced into distinct categories of “race” or “sex” discrimination.[28] Crenshaw pointed to Moore v. Hughes Helicopters,[29] the controlling intersectional precedent in the Ninth Circuit prior to Lam, to illustrate this point.[30] In Moore, the court held that Black women do not adequately represent the interests of Black men or White women, warranting the district court’s denial of class action certification under Federal Rule of Civil Procedure 23(a).[31]

Crenshaw reasoned the Ninth Circuit understood Moore’s Blackness to be “at odds with the standard allegation that the employer discriminated ‘against females.’”[32] In fact, the court held, “Moore had never claimed . . . that she was discriminated against as a female, but only as a Black female.”[33] Moore illustrated how courts consider White women the subjects of the standard sex discrimination claim, just as they consider men of color the subjects of the standard race discrimination claim. Thus, this traditional single-axis framework distorts judicial analysis of discrimination by focusing on the most privileged members of otherwise subordinated groups, i.e., centering Whiteness in understandings of gender and maleness in understandings of race.[34]

More importantly, this distortion erases women of color from “the conceptualization, identification, and remediation” of race and sex discrimination and deprives intersectional plaintiffs from relief.[35] By “failing to acknowledge the complex and overlapping web of racism and sexism,” courts often force women of color to artificially bifurcate their identities into race, and separately, gender to assert legal claims.[36] But the experiences of women of color are not merely “the sum of race and sex discrimination.”[37]

In fact, Black women directly “report that their most significant identity is neither their race nor gender on their own, but rather the combination of their ‘gendered racial identity.’”[38] Studies show that the harassment women of color face is itself intersectional, “often layered with complexities of segregation, stereotypes, racial subordination, and low-wage work” that are directly “related to both their race and sex.”[39] Working women of color “are frequently victimized by discrimination precisely because they are women of color.”[40]

Intersectionality theory also remedies the magnification of discrimination that comes with multiple oppressed identities. Because women of color are subordinated both as women and as people of color, they face “double-discrimination.”[41] This “aggregate nature of overlapping harms” can serve to “magnify discrimination.”[42] For instance, people may be more likely to be racist towards an Asian woman because of her gender and sexist towards her because of her race.

However, courts still consider intersectional experiences to be deviations from “pure” race or sex discrimination.[43] Perversely, “any significant experiential or statistical variation within [a] group suggests . . . the group is not being discriminated against,” so that recognizing the unique discrimination Black women face, for instance, may undermine sex discrimination claims as a whole.[44] The district court decision in Lam best exemplified this faulty logic by erroneously determining that an employer could not discriminate against Asian women if the employer favorably considered an Asian man and a White woman.[45] The experiential variation among people of Asian descent when disaggregated by gender, as well as among women when disaggregated by race, initially thwarted Lâm from proving her discrimination was rooted in her intersectional identity as an Asian woman.

Because courts obstruct intersectional plaintiffs’ abilities to bring intersectional claims, traditional antidiscrimination law forces women of color to shoehorn their complex identities into a single axis.[46] In doing so, women of color lose the chance to “present evidence of how race and gender operate in concert to produce or magnify discrimination.”[47] For instance, a court may not permit an Asian woman to introduce evidence that a supervisor called her “condescending” to allege racial harassment because it does not constitute “pure” race discrimination, or rather, does not fit with normative conceptions of discrimination against Asian people.[48]

The erasure of intersectionality in traditional antidiscrimination law may be why workers who allege intersectional discrimination lose 96 percent of their cases, whereas workers alleging single identity discrimination lose 73 percent of their cases.[49] It also may explain why women of color are less likely than White women to prevail in employment discrimination cases.[50]

In order to remedy this obvious gap in antidiscrimination law, Crenshaw urged courts to employ intersectionality. To do so, courts must permit discrimination claims on the basis of multiple protected traits, such as race and gender, and assess the evidence collectively.[51] Because “intertwining social categories change[] social identities and social perceptions, and [are] associated with different stereotypes, relationships, and circumstances for individuals,” an intersectional jurisprudence permits plaintiffs to assert and prove discrimination cases in line with their experience instead of artificially bifurcating their identity into insufficient parts.[52]

Crenshaw analyzed the experiences of Black women to best “contrast the multidimensionality of Black women’s experience with the single-axis framework.”[53] More recently, Crenshaw has explained that intersectionality is “a prism[] for seeing the way in which various forms of inequality often operate together and exacerbate each other.”[54] Using Crenshaw’s framework, scholars have applied intersectionality theory to intersections of many identities, including gender, race, ethnicity, sexual orientation, gender identity, religion, disability, and class.[55] At its core, intersectionality recognizes that “all forms of inequality are mutually reinforcing and must therefore be analyzed and addressed simultaneously to prevent one form of inequality from reinforcing another.”[56]

II. Situating Lam in the Circuit Courts

Prior to the Ninth Circuit’s 1994 decision in Lam, circuit courts charted diverging approaches in Title VII intersectional claims. The Eighth Circuit stood prominently opposed to combining race and sex claims under Title VII. In Degraffenreid v. General Motor Assembly Division, the Eighth Circuit affirmed a lower court decision holding that Black women were not “a special class to be protected from discrimination.”[57] The court denied relief to five Black women challenging General Motor’s “last hired-first fired” policy because the policy did not discriminate against either White women or Black men.[58]

The Fifth Circuit, on the other hand, recognized Black women as a distinct protected subgroup under Title VII. In Jefferies v. Harris County Community Action Association, the court held that employers “should not escape . . . liability for discrimination” against Black women by showing nondiscriminatory treatment of Black men and women in general.[59] The holding stood on statutory interpretation: because Title VII protects against discrimination on the basis of an employee’s “race, color, religion, sex, or national origin,” the court reasoned “[t]he use of the word ‘or’ evidences Congress’ intent to prohibit employment discrimination based on any or all of the listed characteristics.”[60]

While Jefferies presented the first intersectional circuit opinion, it left a number of questions to be answered. As Berkeley Law Professor Kathryn Abrams observed, “Jefferies provide[d] little substantive description of the discrimination it seeks to prevent.”[61] Particularly, the opinion did not answer whether discrimination against Black women should “be regarded as distinct because it is quantitatively greater—as they suffer a combination of what [B]lack men and [W]hite women receive—or because it is qualitatively different.”[62]

Additionally, Jefferies reasoned its way to intersectionality through the sex-plus theory, a doctrine ill-suited to represent the interests of women of color. Georgetown Professor of Law Jamillah Bowman Williams explains that “sex-plus discrimination is generally understood as a form of subgroup discrimination in which an employer targets only a certain segment of male or female employees due to the employee’s sex and another characteristic.”[63] Thus, under the sex-plus doctrine and in the opinion of Jefferies itself, the race of women of color is a secondary characteristic, whereby women of color form a subgroup under the “neutral” umbrella of women.[64] The sex-plus doctrine, then, continues to “bisect” a person’s identity and “de-center[] racial identity and experiences.”[65]

Other circuits began weighing in amidst the split, either adopting a Degraffenried bifurcation approach or Jefferies subgroup approach.[66] The Ninth Circuit’s explicit embrace of intersectionality allowed Lam to take its rightful place as the “high water mark” of intersectional employment discrimination jurisprudence. Thus far, the Supreme Court has never squarely ruled whether Title VII authorizes intersectional claims, so Lam presents the most intersectional appellate opinion, providing lower courts with the most freedom to pursue intersectionality under Title VII.

III. Lam’s Embrace of Intersectionality

In explicitly adopting intersectionality, Lam offers a great deal of language that lower courts have used to analyze intersectional discrimination claims. This Section details the facts of Lam and explores possible interpretations of Lam’s theory of intersectionality. These theories easily (and at times, openly) draw from Crenshaw’s work. However, after laying out the span of Lam’s intersectional reach, in Part V I show how courts use Lam to sometimes progress but often regress intersectionality, driving holes through Lam’s holdings and twisting Lam’s logic to limit intersectional justice.

A.     Summary of Facts

In 1987, Lâm applied to be director of the Pacific Asian Legal Studies Program (PALS) at the University of Hawaiʻi’s law school.[67] A committee in charge of hiring for the position conducted an initial search for candidates and placed Lâm on the short list to submit to the faculty.[68] Soon after, however, the faculty called off the search for the next director without hiring anyone.[69] The University subsequently opened a second search. Lâm applied again, but she “did not appear on any of the committee member’s lists.”[70] This time an “all-[W]hite” appointments committee opted to offer the position to a White woman with a PhD in Chinese History.[71] After she declined the offer, the University cancelled the search once again.[72]

To challenge the University’s discrimination, Lâm presented evidence of sexist and anti-Asian comments by law school faculty and appointment committee members.[73] Specifically, one member of the committee, Professor Chang, indicated that the chair, Professor A, had pursued becoming chair “to block Lâm’s candidacy.”[74] According to Chang, during an appointments committee meeting, Professor A called Lâm “not collegial” and “brusque,” “a poor scholar” with “poor administrative ability,” and “unfit to teach anywhere on the University of Hawaiʻi campus.”[75] Professor A further said it was “inappropriate” of Lâm to disagree with “another ([W]hite male) faculty member” in print on a “land use question.”[76] Also, a few months prior to the candidate search, Professor A tried to pay a “working group” of “Asian scholars less than their American counterparts.”[77] Chang testified that once Professor A became chair of the appointments committee, Lâm’s name dropped from the final list of candidates, and instead “the group discussed forwarding one name, that of a [W]hite male.”[78]

Other professors additionally indicated impermissible discriminatory intent. A member of the appointments committee testified that at a committee meeting, a “[W]hite male professor” stated his preference that the director “should not be a woman,” blaming “Japanese cultural prejudices” and his assumption that “Japanese nationals would not work with a woman.”[79] A faculty member testified that another committee member harbored sexist attitudes, particularly that it would be “unexceptable [sic]” for the law school to “have two women teaching commercial law” or “an entire business law department of woman [sic].”[80]

Further, the dean knew Professor A “had difficulty dealing with women but took no action to remove him from the committee.”[81] Professors Craven and Chang also alerted the dean of Professor A’s biases and inappropriate comments during appointments committee deliberations.[82] Moreover, the Law School did not follow the University’s “recommended and required selection procedures” during the candidate search.[83]

Despite this showing of race and sex discrimination, the district court granted the University’s motion for summary judgment.[84] The court found that the “favorable consideration of two other candidates . . . one, an Asian man, the other a [W]hite women” indicated the hiring committee did not discriminate against Lâm as either an Asian person or a woman.[85] The Ninth Circuit reversed this problematic holding for the following reasons.

B.     Bifurcation is Legal Error

The Ninth Circuit stressed that separating Lâm’s claims by race and sex “misconceive[s] important legal principles.”[86] The court particularly focused on the error in denying Lâm relief because a White woman and Asian man received preferable treatment.[87] The court disapprovingly dubbed this comparator analysis “mathematical” and chided the district court for “seem[ing] to view racism and sexism as separate and distinct elements amenable to almost mathematical treatment.”[88] The court further criticized a “mathematical” approach because it incorrectly bifurcated Lâm’s experience, “reduc[ing] discrimination against Asian women to discrimination against Asian men plus discrimination against [W]hite women.”[89]

The court offered several reasons why bifurcation is defective. First, the court called attention to the “inherent fallacy” of the bifurcation approach: “discrimination against [W]hite men could be similarly analyzed, using the same models: Asian men plus [W]hite women.”[90]

Second, “attempt[s] to bisect a person’s identity at the intersection of race and gender often distort[] or ignore[] the particular nature of their experiences.”[91] Here, the court drew from Crenshaw’s work, citing Demarginalizing the Intersection of Race and Sex directly, and centered the plaintiff’s conception of the discrimination she faced as intersectional. The court also recognized how intersectionality accurately represents discrimination against people with multiple oppressed identities.[92]

Additionally, the court acknowledged that “looking for racism ‘alone’ and looking for sexism ‘alone’” turns “Asian men and [W]hite women [into] the corresponding model victims.”[93] Here again, Lam echoes Crenshaw’s intersectionality by reprimanding antidiscrimination law analysis that erroneously centers on the most privileged group members.[94]

C.    Bifurcation Ignores Unique Stereotypes

Another key reason the Ninth Circuit required an intersectional approach is that bifurcation ignores the unique discrimination Lâm faced as an Asian woman. If courts solely measure discrimination against Asian women as first discrimination against women, and second discrimination against people of Asian descent, courts will miss how “Asian women are subject to a set of stereotypes and assumptions shared neither by Asian men nor by [W]hite women.”[95]

The court specifically catalogued the unique stereotypes Asian women face, including “geisha, dragon lady, concubine, lotus blossom.”[96] “In consequence,” the court declared, Asian women “may be targeted for discrimination ‘even in the absence of discrimination against Asian men or [W]hite women.’”[97] In doing so, the court stressed that bifurcating Title VII claims by race and sex misses discrimination aimed at the intersection of identities.

D.    Intersectional Identities are Interlocking and Inseparable

While not explicitly calling intersectional identities interlocking or inseparable, the Ninth Circuit implied that courts must consider the entirety of a plaintiff’s identity in a Title VII case. The Ninth Circuit stressed that the district court’s principal error was in separating the claims. For instance, the Ninth Circuit reprimanded the lower court for “evaluating discrimination against an Asian woman” as “a simple matter of performing two separate tasks.”[98] The court also emphasized that “the error committed by the district court in its separate treatment of race and sex discrimination” was “significant.”[99]

Further, the Ninth Circuit categorized the district court’s bifurcation as an “attempt to bisect a person’s identity,” suggesting disapproval of the unnatural splicing of a person’s whole self.[100] Lastly, in Lam’s most cited language, the court ruled: “When a plaintiff is claiming race and sex bias, it is necessary to determine whether the employer discriminates on the basis of that combination of factors, not just whether it discriminates against people of the same race or of the same sex.”[101] Using “combination,” again, the court underscored the inseparable nature of people’s identities.

E.     The Scope of Intersectional Claims

The Lam opinion only analyzed Lâm’s claims on the basis of race and gender. But, in a footnote, the court made clear that it recognized a combination claim of race, national origin, and sex.[102] The court noted that “aside from the difference in gender, it is significant that Lam and the Asian male candidate were of different national origins—Lam being Vietnamese-French, the male candidate, Chinese. Lâm alleged not only race discrimination but also national origin discrimination, thereby raising this distinction as relevant under Title VII.”[103] While the Ninth Circuit did not dwell on Lâm’s national origin claim and focused on race and sex, the ruling reflects a recognition that multiple identities could provide bases for an intersectional approach.[104]

Moreover, Lam suggested that its ruling pertains to intersections beyond race and sex. Principally, the Ninth Circuit wrote, “[W]here two bases for discrimination exist, they cannot be neatly reduced to distinct components.”[105] The court’s generalized “bases for discrimination” language implied that race and sex are not the only identities subject to intersectional analysis. Further, the court’s condemnation of “bisect[ing]” identities is just as relevant to intersections of sex and religion, for instance, as it is to race and sex.[106]

Finally, the court noted that “[l]ike other subclasses under Title VII, Asian women are subject to a set of stereotypes and assumptions shared neither by Asian men nor by [W]hite women.”[107] While this language could authorize intersections beyond race and sex, it could also indicate a “sex-plus” theory of discrimination. By referring to Asian women as a “subclass,” the Ninth Circuit could be prohibiting discrimination against subclasses of women, or subclasses of people of Asian descent, thereby limiting intersectionality to claims alleging discrimination on the basis of sex and one other protected identity, or race and one other protected identity.[108] However, a sex-plus holding seems inconsistent with the court’s other findings, reliant as they are on an intersectional approach.

F.     Evidentiary Support in Intersectional Claims

In evaluating intersectional claims, the Ninth Circuit principally instructed: “When a plaintiff is claiming race and sex bias, it is necessary to determine whether the employer discriminates on the basis of that combination of factors, not just whether it discriminates against people of the same race or of the same sex.”[109] In directing courts to consider the “combination of factors,” the Ninth Circuit suggested courts should consider evidence of race, sex, and race-and-sex discrimination together. Professor Williams refers to this evidentiary method as the “totality or aggregate framework” because it aggregates all evidence of discrimination on the basis of race and sex to establish a race-and-sex claim.[110]

On the other hand, the court’s emphasis on considering “discrimination on the basis of that combination of factors” could indicate an instruction to only permit evidence of discrimination aimed at the particular intersection of the plaintiff’s race and sex. For instance, a court would not combine evidence of race and sex discrimination if the sexually harassing conduct appears to be regardless of the employees’ race.[111] Looking only at discrimination aimed at a plaintiff’s particular intersection of identities contradicts the aggregate approach, where courts combine evidence of “pure” sex discrimination, “pure” race discrimination, and discrimination on the basis of race and sex.[112]

Although the Ninth Circuit did not offer much direct practical guidance in how to treat intersectional claims other than “combin[ing] . . . factors,” the decision implies that it intended the aggregation approach. First, the court’s opinion, as a whole, endorsed intersectionality and the interlocking quality of identity. Second, in a footnote of dicta, the court explained that while “evidence of nondiscriminatory treatment of [B]lack males and [W]hite females is wholly irrelevant to the question of discrimination against a [B]lack female plaintiff claiming bias on both racial and gender grounds,” “evidence of discriminatory treatment of, for example, a [B]lack male clearly is relevant to the discrimination claim of a [B]lack woman.”[113] In other words, evidence of both discrimination against Black people and discrimination against women, in general, is relevant in determining if an employer acted discriminatorily towards a Black woman. The Ninth Circuit thereby suggested an aggregation approach.

Finally, in addressing the evidence Lâm presented, the court considered aggregately race, sex, and race-and-sex discrimination.[114] It considered collective evidence of race-and-sex discrimination—such as Professor A’s “biased attitude towards women and Asians,” the appointments committee forwarding the name of a White man as the preferred candidate despite Lâm’s strong showing, the favorable consideration of an Asian man and White woman by the committee, and the change in Lâm’s favorability following Professor A’s assignment as chair—as well as evidence of sex discrimination, such as a professor on the committee stating the “director should be male” because of “Japanese cultural prejudices” and another committee member saying it was “unexceptable [sic]” for the law school to “have an entire business law department of woman [sic].”[115]

G.    Intersectionality as Magnification

Even while championing intersectionality and embracing aspects of Crenshaw’s work, in Lam the Ninth Circuit conspicuously ignored a tenet of intersectionality theory: how having multiple oppressed identities may magnify discrimination.[116] Magnification explains how, for instance, Latina women may face racial discrimination because they are women and gendered discrimination because they are Latina. This is what Crenshaw referred to as “double-discrimination” or “multiple marginality.”[117] Magnification presents yet another reason why courts cannot parse race from sex discrimination, because it is often very difficult to do so.

To summarize, the Ninth Circuit established a variety of intersectional holdings in Lam. Most clearly, it held that bifurcating race and sex claims is a legal error. It instead instructed courts to combine race and sex claims, or multiple bases for discrimination, because intersectional identities are interlocking and inseparable, and intersectional discrimination is unique to specific characteristics. The court further aggregated all evidence of discrimination against Lâm to comprehensively analyze her intersectional claim.

IV. Interpreting the Green-light of Lam

Since the Ninth Circuit’s ruling in 1994, courts have interpreted Lam with great variety. Although Lam set a course of progress and promise, district courts and even the Ninth Circuit itself have interpreted Lam in both expansive and restrictive ways. There are two key questions Lam left open: (1) what is the scope of intersectional claims and (2) how should courts treat the evidence? These two questions get to the heart of what it means to apply intersectionality in antidiscrimination jurisprudence, and courts interpreting Lam have provided many answers.

In doing so, courts have both expanded and regressed legal conceptions of intersectionality. While applying Lam to recognize a race-and-sex claim typically operates as a straightforward application, courts that uphold intersections of sex and national origin or race and religion may suggest a more holistic understanding of intersectional identities. Even further, courts recognizing claims across Title VII, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA)—like intersectional race-and-age claims or sex-and-disability claims—indicate Lam authorized an expansive vision of intersectionality across plaintiffs’ multiple protected identities.

On the flip side, some district courts have rejected intersectionality by continuing to bifurcate claims. Some forms of bifurcation are more restrictive than others: bifurcating claims along statutory lines may be somewhat understandable, though still problematic for plaintiffs, while bifurcating race and sex claims is a clear rebuke of Lam. Similarly, as it pertains to evidentiary treatment, aggregation presents the most progressive conception of intersectionality in employment discrimination, what I dub “mathematical treatment” operates in a middle ground, and full bifurcation of evidence distinctly restricts Lam’s promise.

In all, the following synopsis is not exhaustive but is intended to provide a context for the varying interpretations of Lam. These interpretations demonstrate where Lam’s doctrinal holes lie and, more generally, prominent considerations in the adjudication of intersectional claims.[118] Drawing from this descriptive analysis, in Part VI I will propose doctrinal and policy reforms that would help lower courts better manage intersectional discrimination claims.

A.     Scope of Intersectionality

The first key question—the scope of intersectional claims—refers to how broadly the intersecting nature of discrimination extends. Does Lam require only the intersection of race and sex? Or is it the intersection of any protected category under Title VII, including race, sex, religion, national origin, and color? Or broader still, does Lam green-light the intersection of identities protected across antidiscrimination statutes, including race, sex, religion, national origin, color, age, and disability?

1.     Race and Sex Claims

Many cases interpreting Lam fall squarely within its central holding— courts should combine claims alleging discrimination on the basis of both race and sex. Most of these cases unambiguously reject the separation of race and sex discrimination. These cases draw from Lam’s emphasis on race and sex bias existing in “combination,” as inseparable identities. Sometimes, these opinions inadvertently restrict Lam to only require intersectionality on the basis of race and sex. At the same time, these opinions sometimes apply intersectionality beyond Lam’s explicit reach; for example, some recognize how race and sex intersect in the experiences of men of color.

Anthony v. County of Sacramento in the Eastern District of California illustrates a straightforward application of Lam.[119] While working for the County, Linda Anthony experienced a stream of anti-Black and misogynistic harassment, including frequent use of “racial and sexual slurs,” “racist cartoons and flyers, graffiti, and altered newspaper articles,” and an empty bottle of premenstrual syndrome (PMS) medication left in her mailbox.[120] In ruling on the County’s motion for summary judgment, the court first directly rejected the County’s argument that the plaintiff had to independently prove her race and gender harassment claims because “it is an error for the court to analyze sex and race separately.”[121] The court stressed Lam’s emphasis on combination discrimination, stating that “the proper inquiry is whether the employer discriminated on the basis of the combined factors.”[122] The court also noted that “it is impossible to separate racial and sexual hostility.”[123] For instance, “the epithet ‘[B]lack bitch’ cannot be designated exclusively as either racist or sexist,” but instead, is a vile example of inseparable racial and sexual harassment.[124]

Many courts echo Anthony’s emphasis on combining factors and the inseparability of identities in applying Lam. Rivera v. England, Horn v. Experis US Inc., and Randall v. United Parcel Service, Inc. merged race and sex claims with Lam’s combination mandate, directly reiterating that “when a plaintiff is claiming race and sex bias, it is necessary to determine whether the employer discriminates on the basis of that combination of factors.”[125] Alternatively, Volland v. Mobile Mini, Inc. permitted a race-and-sex claim through inseparability, relying on Lam’s requirement that “where two bases for discrimination exist, they cannot be neatly reduced to distinct components” and analyzed separately.[126]

While Anthony showcases how many applications of Lam recognize race-and-sex claims, the Anthony court also supplemented its reasoning by applying a magnifier theory of intersectionality that Lam itself ignored. The court stated: “Moreover, plaintiff appears to argue that racial hostility in the Department was particularly virulent against female deputies, and that sexual bias was particularly directed at African-American women.”[127] This articulation validated that harassers may be more likely to direct racism at women of color and more likely to be sexist towards Black women, providing yet another reason for recognizing intersectional discrimination. The magnifier theory represents a more nuanced understanding of how intersectional discrimination works. Anthony, as the only opinion to embrace the magnifier theory, is a standout expansion of Lam.

At the same time, the Anthony court limited Lam’s scope to just encompass race and sex, thereby excluding other combinations of identities. It coined intersectional race-and-sex claims as a “Lam theory of discrimination,” tying Lam’s holding to that specific intersection.[128] The court also framed Lam’s legal rule as arising only out of allegations from a “woman of color.”[129] Similar to Lam itself, the Anthony opinion did not explicitly preclude other intersectional claims. But in phrasing Lam’s holdings as solely related to race and sex, the court could be read to implicitly limit the scope of Lam’s intersectionality ruling.

However, even within this potentially limited construction of intersectionality, courts have recognized intersectional race-and-sex claims pertaining to men of color. Although this clearly falls within race-and-sex constraints, identifying intersectional interests of men of color shows a sophisticated application of intersectionality beyond what Lam specifically taught.

For instance, in White v. Disbrow, the court declined to dismiss a Black man’s sex discrimination claim and rejected severing sex discrimination from the plaintiff’s race discrimination claim.[130] Vincent White contended his employer implemented practices and policies that disparately impacted Black men.[131] The defendant, in response, utilized the faulty comparator analysis—an analysis specifically rejected in Lam—to claim that because the defendant “selected one [W]hite male” for the position, it could not have been sexually discriminatory against Black men.[132] However, the court rebuffed the defendant’s position and reasserted Lam’s holding. Although the defendant selected a White man for the contended position, the plaintiff, as a Black man, “may nonetheless have suffered discrimination, at least in part, based on his sex” because he may have been “targeted for discrimination ‘even in the absence of discrimination’” against White men or Black women.[133] Here, the court acutely acknowledged the specific discrimination Black men face to justify the plaintiff’s assertion of an intersectional claim, expanding Lam to encompass intersectional identities not specifically mentioned in the opinion.

2.     Beyond Race and Sex but Only Within Title VII

Instead of limiting Lam to race and sex, many courts use Lam to authorize combination claims of characteristics protected by Title VII, or, in other words, any intersection of race, color, religion, sex, or national origin.[134] In extending Lam beyond race and sex, courts tend to rely on Lam’s instruction that “where two bases for discrimination exist, they cannot be neatly reduced to distinct components.”[135] Critically, the Lam case itself technically recognized an intersectional claim based on three protected traits—race, sex, and national origin. However, this distinction was glossed over and relegated to a footnote, whereas the brunt of the Lam opinion focused on sex and race only. Notwithstanding Lam’s reference to “two bases,” district courts are open to claims based on more than two identities.[136] Notably, some courts have combined bases for discrimination even when race and sex bias were not part of the claim.

For example, in Njenga v. San Mateo County Superintendent of School, the Northern District of California denied the employer’s motion for summary judgment, finding a genuine issue of material fact as to the plaintiff’s claims of discrimination and harassment based on race, national origin, and sex.[137] Waithira Njenga, an African woman from Kenya, “point[ed] to an eight-year pattern of harassment” that included being “disrespected during meetings and daily interactions, asked about black magic and her tribal body art,” and then terminated.[138] The defendant argued that due to “no evidence of gender-based discrimination,” the court should bifurcate Njenga’s intersectional claim.[139]

Instead, the court employed Lam to “caution[] against isolating Plaintiff’s gender discrimination claim from her race and national origin discrimination claims on summary judgment, particularly because Plaintiff has alleged discrimination based on color, race, national origin, and gender, or a combination of those factors.”[140] Here, the court properly invoked Lam’s holding as requiring a combination analysis of race, national origin, and sex discrimination.

By the same token, the court in Tagupa v. Winter also correctly cited Lam as recognizing “combined race, national origin, and sex discrimination claims under Title VII” and authorized a Native American attorney to bring a race, national origin, and sex discrimination claim against his employer.[141] Similarly, the Ninth Circuit in Felix v. Boeing Co. permitted a race, national origin, and sex discrimination claim alleged by a Latina woman who faced anti-Mexican harassment as well as discrimination because she was pregnant.[142]

Similarly, in EEOC v. NCL America, the court accepted a combined national origin and religious discrimination claim, a combination of identities not explicitly specified in Lam.[143] On behalf of two employees of a cruise ship, the Equal Employment Opportunity Commission (EEOC) alleged the employer terminated its workers based on their Yemeni national origin and Muslim religion.[144] In denying the employer’s motion for summary judgment, the court particularly recognized the “overlap” between religion and national origin because, again, as Lam states, “where two bases for discrimination exist, they cannot be neatly reduced to distinct components.”[145]

3.     Cross-Statute Intersectionality

Several courts expanded Lam to cover intersections of characteristics protected by Title VII with characteristics protected by other statutes, like disability under the ADA and age under the ADEA. Some cases interpreted Lam as requiring intersectionality among any alleged basis of discrimination, including disability and age. Most courts did so through Lam’s combination mandate, and one court notably did so through Lam’s unique stereotype thread. However, these cases reflect courts’ often eccentric, inconsistent, and limited applications and discussions of Lam.

Adams v. Home Depot showcased the potential of Lam’s legacy in authorizing expansive intersectionality.[146] Don Strong experienced a barrage of racial and age-based harassment, including comments like “[g]et your ass moving or I’m going to crack the whip,” suggestions to work somewhere “more suitable for someone his age,” and being referred to as “Darkman.”[147] The court held that Lam surely applied because an “African-American who is at least 40 years old may be ‘subject to a set of stereotypes and assumptions suffered neither by [W]hites nor by African-Americans under the age of 40.’”[148] The court thus employed Lam’s emphasis on unique stereotypes to support an intersectional claim based on race and age.

In Good v. US West Communications, Inc., [149] the court also explicitly extended Lam to cover sex-and-age claims, concluding “that the holding in Lam applies to this case in which Good alleges age and sex bias.” Even though the plaintiff’s age claim was weak—there was only a three-year age difference between her and her replacement—the court still adhered to Lam and held “she may prevail” in showing the “combination of factors” was “a substantial motivating factor in the adverse employment decision.”[150]

In both Square v. Potter and Kagawa v. First Hawaiian Bank/Bancwest Corp., the courts permitted expansive intersectional claims across statutes but concluded the plaintiff’s lack of evidence merited granting summary judgment.[151] The court in Square seemed to combine race, sex, age, and disability in a hostile work environment claim, reading Lam to compel the court to “consider a combination of all bases of discrimination.”[152] However, because the court found that the plaintiff provided “no evidence that her supervisor engaged in most of the alleged harassment,” such as damaging her car or stealing her pillow, or “that any of these acts were on account of Plaintiff’s protected characteristics,” the court granted summary judgment.[153]

In Kagawa, the court, while seemingly acknowledging the existence of a sex-and-age claim, mostly focused on how the plaintiff’s case was “supported by no factual allegation at all” because Kagawa’s charges were not timely filed.[154] The court emphasized that in Lam, “the Ninth Circuit stressed the importance of examining evidence of discrimination on the basis of multiple factors when a plaintiff brings a claim for a combination form of discrimination,” and without timely evidence, a claim, regardless of its intersectionality, cannot exist.[155] Although the courts in Square and Kagawa directed the bulk of their attention to the insufficiency of the plaintiffs’ evidence, both opinions employed an expansive scope of intersectionality.

Many cases that expanded Lam did so in inconsistent ways. For instance, while the court in Kagawa conjunctively analyzed a sex-and-age claim, it still explicitly bifurcated the plaintiff’s disability claim.[156] Similarly, the court in Lamb v. Kaiser Foundation Health Plan Northwest combined a cross-statute age-and-disability claim without comment, while specifically forbidding an intersectional age, disability, and sex discrimination claim.[157] Also inconsistent was the outcome in Snider v. Greater Nevada, LLC; the district court combined national origin, sex, and age for a hostile work environment claim but bifurcated the plaintiff’s identities to analyze her near-identical disparate treatment claim.[158] This was particularly puzzling given Lam itself was a disparate treatment case.[159] Finally, Dominguez v. FS1 Los Angeles permitted a sex-and-age claim because the court interpreted Lam to authorize “sex-plus” cases under Title VII.[160]

4.     Bifurcation

Despite some courts expansively interpreting Lam, others have found more restrictive interpretations. Many courts still engage in bifurcation, or the compulsory separation of intersectional claims. Some courts bifurcate intersectional discrimination by statute, whereby plaintiffs may only allege disability independently under the ADA and age independently under the ADEA, while combining race, color, sex, national origin, and religion through Title VII.

Many courts bifurcate by reading requirements into Lam that do not appear on the face of the opinion. For instance, some courts require plaintiffs alleging intersectional claims to point to unique stereotypes applicable to their intersectional identities. Other courts issue wide-sweeping conclusions about what is and is not racism or sexism, often in opposition to the plaintiff’s own experiences.

a.     Along Statute Lines

Many courts wield Title VII restrictively, foreclosing intersectional claims along the basis of Title VII’s protected characteristics (race, color, religion, sex, and national origin) and characteristics protected under other antidiscrimination statutes, like disability and age.[161] Courts deny cross-statute claims on a textual basis: if Congress intended disability discrimination claims to be combined with race discrimination claims, Congress would have written one unified antidiscrimination statute.

The court in Luce v. Dalton adopted this exact reasoning to deny a plaintiff’s intersectional age, disability, and religious discrimination claim.[162] The court stressed that “the factors which Plaintiff seeks to lump together in this lawsuit . . . are contained within . . . separate and distinct statutes.”[163] Because Congress has not “amended Title VII to provide protections to older Americans and Americans with disabilities,” the court ruled that Congress had not “intended to allow plaintiffs to mix and match theories of liability for employment discrimination.”[164] The court believed that permitting intersectional claims across statutes would “amount to judicial legislation.”[165]

Other courts have echoed Luce’s skepticism at combining bases for discrimination across statutes. In Esposito v. Maricopa County Community College District, the court rejected a race-and-age claim because the plaintiff provided “no authority for extending [Lam’s] principle under Title VII to claims under the ADEA.”[166] Similarly, in denying a race, sex, and age claim, the court in McKinney v. City of Hawthorne only considered “race alone, sex alone, race-plus sex, and age alone” because “age is not a protected category under Title VII.”[167] The court bifurcated these claims despite the plaintiff “insist[ing] that her discrimination claims cannot be separated out into single categories.”[168] McKinney shows that even while a court may use Lam to permit intersectional claims of some identities, like race and sex, the same court can deny intersections of other identities.

Some courts limit Lam to only requiring intersectionality within Title VII when one of the bases for discrimination is gender. This thread of interpretation categorizes Lam as a “sex-plus case,” building off Lam’s use of “subclass” to refer to Asian women under Title VII.[169] Scholars have critiqued this misguided approach, principally because it makes women of color a subclass of women, relegating race to a secondary characteristic.[170]

Cases like Luce reveal the continued problematic inheritance of the sex-plus doctrine. In Luce, the court restricted intersectionality in Title VII to only “sex-plus” claims.[171] Limiting Lam to sex-plus excludes intersectional claims even within Title VII or those combining race, religion, and national origin. The court in Luce relied on a district court opinion outside the Ninth Circuit that had held “the only ‘plus’ theories of liability . . . was [for] ‘sex-plus’ under Title VII,” making the court “unwilling to import the ‘sex-plus’ theories into a completely different statutory scheme such as the ADEA.”[172] As a result, the court rejected the plaintiff’s “age-plus-disability” and “age-plus-religion” claims.[173]

b.     Cognizable Unique Stereotypes

In Lam, the Ninth Circuit justified the need for intersectionality by pointing to unique stereotypes of Asian women. The court explained: “Like other subclasses under Title VII, Asian women are subject to a set of stereotypes and assumptions shared neither by Asian men nor by [W]hite women.”[174] A few courts have taken this conclusion—that unique stereotypes warrant intersectionality—as a necessary element to recognizing intersectional claims. By so doing, the courts misconstrue the holding of Lam.

No case better exemplifies this restriction than Lamb v. Kaiser Foundation Health Plan Northwest, in which the court rejected an intersectional sex, age, and disability claim.[175] The court commendably started by “tak[ing] the Ninth’s Circuit’s instruction as a serious exhortation to critically examine the facts of a mixed discrimination case for inferences that the discrimination is greater as a whole than the sum of the parts.”[176] Such fastidious understanding of Lam’s intersectionality mandate made the court’s next move surprising: it concluded that there are “some cases,” such as Lamb, “where the inference established in Lam is completely unsupported by a set of facts.”[177] The court distinguished Lam, “where the plaintiff was able to point to special stereotypes of Asian women as opposed to simply Asian-Americans or women,” finding that “Ms. Lamb has offered no special stereotypes that pertain to older, disabled women, which would not also apply to older, disabled men.”[178] The court continued, “[T]he lack of special stereotype first weakens the inference created by Lam.”[179] Because the court could not identify cognizable stereotypes applied specifically to “older, disabled women,” it refused to apply intersectionality and bifurcated Lamb’s sex claim from her age and disability claims.[180]

Similarly, the court in Luce saw a lack of cognizable stereotypes as a basis for rejecting the plaintiff’s age, disability, and religion claim. The court held that “[u]nlike African-American or Asian women, there can be no argument that there are unique discriminatory biases against older workers with disabilities or older non-Mormon workers.”[181] The court also stated that “[t]hese unique discriminatory biases justify” only sex-plus claims, further solidifying a restrictive interpretation of Lam.[182]

c.     Discrimination at a Particular Intersection

Akin to requiring unique stereotypes, some courts require discrimination at a plaintiff’s particular intersection to merit the application of Lam. For instance, instead of combining evidence of discrimination on the basis of race, on the basis of sex, and on the basis of both sex and race—as Lam does—courts will exclude evidence of discrimination on the basis of race and on the basis of sex and instead only permit evidence of discrimination on the basis of both race and sex.

The court in Saberi v. BFS Retail & Commercial Operations explained this restrictive approach most explicitly in its denial of an intersectional sex-and-national-origin claim.[183] Mehdi Saberi, an Iranian man, was subjected to harassment by his supervisor, who repeated Farsi words for “penis” and “prostitute” in front of Saberi, told Saberi he “squeak[s] like a Jew,” and referred to Saberi’s mother as a “prostitute.”[184] Despite the intersectional nature of the evidence, the Northern District of California held Lam “allows a court to combine bases for discrimination (e.g., sex and race) only if the discrimination is focused on that particular combination.”[185]

Because the defendant’s “sexually pervasive conduct” was “regardless of the employees’ national origin,” the plaintiff could not allege an intersectional claim.[186] The court emphasized that “it is clear that the conduct of which Saberi complains was not based on the combination of his national origin (Persian) and sex (male),” and thus, was “not limited to a subclass of people who are both Iranian and men.”[187] As a result, the court declined to apply Lam.[188] The court instead bifurcated Saberi’s hostile work environment claims into national origin and sex separately and subsequently found that both claims failed to meet the bar of severe or pervasive harassment.[189]

In addition, some courts will combine intersectional claims but then discredit evidence that is not based on both identities. In Snider, the District Court of Nevada combined a race-and-national-origin claim but depreciated the plaintiff’s case for not proving discrimination based on both race and national origin conjunctively.[190] Amidst other evidence of discrimination, Herlina Snider’s boss told her, “I don’t understand a single word you’re saying because of your accent.”[191] The court remarked that “this statement does not even inferentially reference Plaintiff’s race.”[192] Even though denigrating workers’ accents can be racially motivated, the court indicated it expected Snider’s evidence of discrimination to be explicitly based on the intersection of her Asian race and Chinese national origin.

Other courts have illustrated a similar distaste for evidence not specifically aimed at a plaintiff’s intersectional identities. In deciding not to apply Lam, the court in Lamb noted the plaintiff’s alleged sex discrimination was “not rooted in the combination of factors” that composed her intersectional claim.[193] In De La Rosa, the court rejected the plaintiff’s claim of religious and national origin discrimination based on the plaintiff’s Mexican and Jewish identities and remarked that the “Plaintiff ha[d] not presented evidence of incidents directed at both his Mexican and Jewish ancestry.”[194] In the same vein, the court in Jefferson v. Superior Court commented that the “Plaintiff does not allege discrimination based on a combination of her race and gender; that is, none of Plaintiff’s allegations address discrimination specific to [B]lack women.”[195]

d.      Court Determinations of Racism and Sexism

In many cases, courts will deny the existence of an intersectional claim because the court determines that one of the bases of the claim does not exist. Unlike simple bifurcation, where a court will bifurcate a race-and-age claim, for instance, here courts are open to intersectional discrimination claims but prevent such claims when they deem evidence of discrimination for one of the bases to be lacking. For example, a court would deny a race-and-sex claim if the court finds insufficient the alleged race-based or sex-based discrimination, instead forcing the plaintiff to pursue a single-axis claim.

In Bala v. Oregon Health & Sciences University, a magistrate judge bifurcated race and sex disparate treatment and hostile work environment claims because the discrimination the plaintiff faced was “solely based on . . . gender” and not on race.[196] Dr. Rupa Bala filed a Title VII claim against the university for wrongful discharge on the basis of race and gender.[197] The university claimed a legitimate, nondiscriminatory reason for her termination based on complaints alleging that Dr. Bala was “‘direct, authoritarian and intimidating,’ ‘very unprofessional and abusive,’ ‘demeaning and belittling,’ and ‘condescending and bullying and harassing.’”[198] The judge held that “a reasonable juror could conclude that the complaints lodged against the plaintiff . . . were driven by stereotypes about how women should act in the workplace.”[199]

Although the judge easily recognized gender discrimination in Dr. Bala’s experiences, the court failed to recognize the racial dimension of the discrimination and determined there was not “sufficient evidence to sustain any discrimination claims that rely on plaintiff’s race.”[200] The district court, however, disagreed, ruling that because White male doctors who communicated similarly to Dr. Bala were not disciplined, Dr. Bala’s disparate treatment claim should survive summary judgment.[201] Nonetheless, the district court adopted the magistrate judge’s recommendation to bifurcate and deny Dr. Bala’s intersectional hostile work environment claim.[202] Because the harassment claim rested on the same analysis as the disparate treatment claim, the district court bifurcated Dr. Bala’s race-and-sex claim due to a lack of identifying racial harassment in her proffered evidence.[203]

Similarly, in Vasquez v. County of Los Angeles, the Ninth Circuit, declining to follow its own precedent, ignored the intersectionality of the plaintiff’s workplace harassment and granted summary judgment for the employer.[204] As Judge Ferguson’s dissenting opinion pointed out, the majority defined Vasquez’s claim as “one for ‘racially based harassment,’” but Vasquez asserted “he was harassed because of the confluence of his race and sex, both of which are protected characteristics under Title VII.”[205] Particularly, a supervisor told Vasquez that “because he was Hispanic and male, ‘he was too aggressive, macho and domineering with the minors’” at a youth detention center and had a “typical Hispanic macho attitude.”[206] Judge Ferguson explained that “[t]hese statements were openly hostile to Vasquez and suggested that he was dangerous and unqualified to work with minors because of his race and sex.”[207] The dissent concluded that the supervisor’s “repeated attacks” on Vasquez were “inextricably part of [a] pattern of racial and sexual hostility” sufficient to survive summary judgment.[208]

e.     Explicit Rejection of Lam

Several opinions explicitly reject Lam. Though most rested on several reasons for declining to apply intersectionality, these cases notably articulated limitations, and even distaste, for Lam.

Two cases held Lam was not a “per se rule.” In Lamb, the court minimized Lam’s clear mandate to recognize intersectionality as an “inference,” stating, “I take it as given that there can be some cases where the inference established in Lam is completely unsupported by a set of facts.”[209] Because the court found the plaintiff provided “almost nothing to support her allegations of sex discrimination,” the court also bifurcated the plaintiff’s sex discrimination claim from her age and disability claims.[210] The court in Bala drew from Lamb in determining that “[t]hough the Ninth Circuit has instructed courts to examine the ‘combination of factors’ when ‘two bases for discrimination exist,’ [citation to Lam], that analytic framework is not a ‘per se rule.’”[211]

One court showed blatant hostility towards intersectionality. In De La Rosa, the plaintiff alleged discrimination on the basis of his Mexican and Jewish ancestry and Jewish religion.[212] The court noted that its “analysis in this case is made unnecessarily burdensome by the fact that Plaintiff has alleged three forms of discrimination—race, national origin, and religion.”[213] The court disparaged the intersectionality of the plaintiff’s claim, commenting that “[t]his process is made even more difficult by the fact that the number of distinct claims is potentially unwieldy.”[214]

5.     Evidence of Intersectionality

The second key question Lam left open was how courts should treat intersectional evidence. Should courts conduct separate Title VII analyses for each protected trait and then somehow add it all together? Or should courts consider all evidence of discrimination at once? Courts appear to be choosing one of three answers. First, courts use the “aggregation” approach, where courts evaluate all evidence of discrimination, regardless of bases, and determine if it meets the applicable legal standard.[215] Second, courts partake in what I call the “mathematical approach,” where courts analyze evidence of discrimination separately, according to each protected trait, then combine their findings to rule under Title VII. Lastly, when courts have already determined an intersectional claim does not exist, courts bifurcate the evidence.

B.     Aggregation

Although Lam did not explicitly explain how lower courts should handle evidence in intersectional discrimination claims, its reasoning exemplified the type of analysis that should be employed. The Ninth Circuit’s model combined evidence of bias against women, bias against people of Asian descent, and bias specifically against Asian women in denying summary judgment on Lâm’s claims.[216] Thus, the court aggregated evidence of discrimination along all axes of identity. Most courts that recognize intersectional claims aggregate evidence of discrimination in this way.

For instance, in Anthony, the court understood the plaintiff to “complain[] of certain incidents which were offensive on racial grounds and others which targeted her as a female, and still others in which she was mistreated as an African-American female.”[217] Thus, in considering the plaintiff’s evidence, the court aggregated it all to hold that “[w]hen racial or sexual slurs are combined with racist cartoons, graffiti, practical jokes, and physical intimidation or threats, a hostile environment may be created.”[218]

In Anthony, the court stressed that the inseparability of intersectional identities entails an aggregation approach. Because “it is impossible to separate racial and sexual hostility,” the court held, “they must be considered a single pattern of harassment.”[219] The court took Lam to mean it “must therefore consider the evidence of racial and sexual animus collectively.”[220]

Many other opinions also aggregated evidence of discrimination, though most have done so without commenting, as the Anthony court did, on which evidence is, for example, race-based, sex-based, or a combination of both. Instead, the most common practice has been detailing all evidence of discrimination in a list and considering it collectively. As discussed in Part V, evaluating intersectional discrimination in aggregate permits plaintiffs to state their case more akin to how they experience discrimination: all at once. For instance, in Peoples v. County of Contra Costa, the court listed evidence of racial and sexual discrimination against a Black woman without categorizing the evidence into either bucket.[221] This evidence included a supervisor analogizing the plaintiff to a Black servant character in a movie, a supervisor saying “Don’t call me massa” to the plaintiff, a supervisor saying the plaintiff looked good in jeans, a supervisor giving the plaintiff a Holiday Inn key card, and the fact that the plaintiff was the only Black woman in the office.[222] “Taken together,” the court held, there was “sufficient evidence to create a triable issue of fact as to whether defendants failed to promote her based on unlawful discriminatory reasons.”[223]

Similarly, the court in Volland aggregated evidence of discrimination on the basis of race, sex, and race and sex.[224] The court determined that a manager’s comments on the plaintiff’s appearance, such as “you look hot already”; leering “at her breasts so frequently that she had to tell him to look at her face instead”; comments about the plaintiff’s race, like “[y]our people are good at computers and phones and things like that”; and use of sexualized stereotypes of female Asians, such as “China Doll” and “hot little Asian,” constituted “an environment that a reasonable person would find hostile or abusive.”[225]

C.    Mathematical Approach

Some courts approach evidence through a combination of aggregation and bifurcation: first bifurcating evidence of discrimination by bases, then considering the evidence together as a whole. Lam condemned evaluating discrimination as “a simple matter of performing two separate tasks: looking for racism ‘alone’ and looking for sexism ‘alone,’” calling such an approach “mathematical treatment.”[226] Instead, the correct approach is to assess the evidence collectively, as the Ninth Circuit did when assessing Lâm’s evidence of race, gender, and national origin discrimination. Opinions that bifurcate the evidence analytically, even if the claims are ultimately combined, still err by employing a mathematical treatment that “bisect[s] a person’s identity.”[227]

In Jefferson, the court mistook Lam to imply that analyzing intersectional discrimination is “no different from separately alleged race and gender discrimination at the pleading stage.”[228] So, the court first identified “four instances of alleged racial discrimination,” including a supervisor telling the plaintiff that “braids worn by [B]lack women and men were not appropriate” and she was “uncivilized”; however, such discrimination could be gender motivated as well as race motivated.[229] Then, the court considered evidence of “sexual misconduct.”[230] After separating the evidence by race and independently sex, the court decided, “taken as a whole,” the plaintiff’s allegations were insufficient to establish a hostile work environment claim.[231]

The court in Nagar took a similar approach.[232] The opinion started by briefly analyzing the plaintiff’s claim for national origin discrimination and concluded it was lacking.[233] Then, the court established the plaintiff’s gender discrimination claim also was insufficient.[234] Finally, however, the court evaluated the claim intersectionally, as Lam instructs, to hold that “where two grounds for discrimination exist, as here, we may look to all the circumstances ‘to determine whether the employer discriminate[d] against that combination of factors’ [citation to Lam].”[235] But, unsurprisingly, the court concluded that “even considering all of the incidents of national origin and gender harassment together,” the plaintiff’s claim failed on summary judgment.[236]

1.     Bifurcating Evidence

In assessing evidentiary support, the bifurcation of claims most often leads to an erroneous comparator analysis. Lam illustrates this concept best: the Ninth Circuit rejected the district court’s determination that Lâm did not experience discrimination as an Asian woman because the employer favorably considered an Asian man and a White woman for the same position. The Ninth Circuit ruled that comparing Lâm’s experience of discrimination to the “nondiscriminatory treatment” of Asian men and White women was a legal “error.”[237]

When courts decline to follow Lam and bifurcate intersectional claims, they often engage in this type of erroneous comparator analysis. For instance, in Burks, after the court bifurcated a Black woman’s race-and-sex discrimination claim, the court concluded that Burks “failed to establish a prima facie case of sex discrimination” because “Burks was replaced by another woman.”[238] However, the opinion contained no mention of the woman’s race, indicating the court did not specifically compare Burks’s experience to that of other Black women.[239] Instead, the court used “evidence of nondiscriminatory treatment” of women in general to quash Burks’s bifurcated sex discrimination claim.[240] The court, while denying Burks access to the full scope of intersectional evidence alleged, held that Burks failed to produce “substantial evidence of pretext” on her bifurcated race discrimination claim, and accordingly granted summary judgment.[241]

V. Doctrinal and Policy Reforms

A few key insights emerge from looking collectively at the cases interpreting Lam. First, determining the basis for discrimination is a difficult task. Even when recognizing intersectional claims, courts struggle to identify racism, sexism, ageism, disablism, among others, amidst the evidence. This difficulty often leads to courts bifurcating claims, in which they label evidence as “pure” racism or “pure” sexism, instead of understanding the nuanced nature of multidimensional oppression and discrimination. Aggregating all evidence of discrimination would likely solve the issues that arise from courts’ misunderstanding of intersectional discrimination. Second, Lam’s emphasis on unique stereotypes as a justification for intersectionality has led to courts foreclosing intersectional claims when judges cannot identify cognizable stereotypes relating to the plaintiff’s intersection.

Third, because Congress governs employment discrimination law with multiple statutes, there is a significant barrier to cross-statute intersectionality. However, this obstacle is not insurmountable, because legitimate inquiries into congressional intent may determine whether intersectionality ends at Title VII’s bounds.[242] Lastly, extending the scope of intersectional analysis to reflect plaintiffs’ lived experiences is particularly important to the increased success of hostile work environment claims.

A.     Aggregate Evidence of Intersectional Discrimination

In the cases interpreting Lam, courts struggle to identify racial, sexual, and other impermissible undertones in the evidence. Because courts are frequently unable to decipher the specific types of subordination in evidence, judges may be quick to bifurcate, misapprehend, or weaken a claim. Aggregating all evidence of discrimination allows courts to sidestep this problem. Instead of determining which evidence is race based and which is sex based, for instance, a court could examine all the evidence of discrimination collectively.

Take the evidence presented in Bala. The defendant-university claimed Dr. Bala, an Asian woman, was fired for being too “intimidating,” “demeaning,” and “condescending.”[243] The judge determined these complaints “were solely based on her gender,” specifically “driven by stereotypes about how women should act in the workplace,” and, thus, an intersectional claim was inappropriate.[244] However, “Asian women are stereotyped as highly feminine” and particularly, “passive, obedient, fragile, and meek.”[245] While the judge readily acknowledged that people may penalize women for being aggressive, the judge missed that because of the heightened expectations of passivity and obedience placed on Asian women, people may penalize Asian women even more than White women for being “aggressive.”

Similarly, the court in Vasquez misconstrued the evidence as single-axis discrimination. A supervisor told Vasquez that “because he was Hispanic and male, ‘he was too aggressive, macho and domineering with the minors,’” and had a “typical Hispanic macho attitude.”[246] The majority understood these comments to reflect only racism. However, in the dissent, Judge Ferguson explained that these statements “suggested that he was dangerous and unqualified to work with minors because of his race and sex.”[247] The dissent understood that widespread and atrocious stereotypes of Latino men as criminals or gang members could have motivated the supervisor’s comments.[248] Further, the dissent condemned the majority for not recognizing that the “repeated attacks” on Vasquez were “inextricably part of [a] pattern of racial and sexual hostility.”[249]

Both Bala and Vasquez illustrate two examples of the court getting it wrong by seeing “pure” sexism or “pure” racism instead of intersectional discrimination based on well-known stereotypes. If courts even misunderstand intersectional discrimination based on salient stereotypes, they are certain to miss more subtle, but just as nefarious, intersectional discrimination. For example, in Snider, the plaintiff produced evidence that a manager “became very red and then he said: Really, you were married to a Chinese man? Your kids are half Chinese?”[250] The court decisively categorized this as solely evidence of potential race discrimination, national origin discrimination, or both.[251] However, there may be sexism underlying a statement expressing anger or surprise at the race of a woman’s husband and children.[252] Misunderstanding the complexities of intersectional discrimination led the court to bifurcate Snider’s claims and dismiss both.[253]

Additionally, negative impacts for intersectional plaintiffs are common when judges miscomprehend the nature of discrimination or only consider discrimination at the plaintiff’s particular intersection. For example, in Saberi, the court bifurcated a national-origin-and-sex claim because the discrimination Saberi faced was, according to the court, not “focused on that particular combination.”[254] The court concluded a comment by Saberi’s manager that he “squeak[ed] like a Jew” was solely discrimination on the basis of Saberi’s Middle Eastern national origin.[255]

However, looking at the evidence of discrimination in the aggregate, this comment could reasonably be considered both national origin and sex-based harassment. Saberi presented evidence to show he experienced discrimination as a gay Iranian man. For instance, the same manager repeated “penis” and “prostitute” in Farsi.[256] And although time-barred from being considered in the harassment claim, the same manager made remarks to Saberi, such as “my dick in your mouth,” “my dick on your bald head,” “my dick on your hairy chest,” and “my dick in your eye,” which indicated the nature of harassment was sex based.[257] Thus, a comment like “you squeak like a Jew,” which leverages the stereotype of a “gay voice” that speaks at a “higher pitch,” is homophobic in addition to displaying anti-Middle Eastern discrimination.[258] The court improperly overrelied on one comment, not on the aggregation of all the evidence, and then categorized this comment as purely national origin discrimination. The court disclaimed that none of the evidence showed that Saberi had suffered intersectional discrimination, bifurcated Saberi’s claims, and found both claims failed on summary judgment.

Even mathematical treatment of the evidence is not a suitable alternative to pure aggregation because courts, by analyzing evidence based on only one protected trait at a time, still undercut plaintiffs’ lived experiences of intersectional discrimination. For example, in Jefferson, the court categorized exclusively as racial discrimination a supervisor’s comments to an employee about how “braids worn by [B]lack women and men” were inappropriate in the workplace and that the plaintiff, a Black woman, should specifically “curl” her hair.[259] Despite mentioning both women and men, the evidence, taken together, suggests misogynoir also was a motivating factor.[260] The NAACP estimates Black women face the highest instances of hair discrimination,[261] which are a product of “racialized beauty norms” affecting women of color.[262] By eliminating the gendered component of this racial harassment, the court deprived the plaintiff of recognition of the full harm she faced, and may have contributed to the conclusion the harassment was not severe and pervasive enough.

The difficulty of determining which forms of discrimination are present is a potent justification for intersectionality: instead of trying to decide what is race based and what is sex based, courts can aggregate all evidence into a race-and-sex claim. Njenga illustrates a court succeeding in analyzing an intersectional claim and not bifurcating evidence. In rejecting summary judgment on the plaintiff’s hostile work environment claim, the court detailed an “eight-year pattern of harassment, including being shunned and ostracized, disrespected during meetings and daily interactions” and “asked about black magic and her tribal body art.”[263]

Here, the court laid out the “pattern of harassment” attributed to all three impermissible bases—and for a good reason.[264] Is being asked about “black magic” and “tribal body art” anti-Black? Or is it anti-African? Or is it targeting stereotypes of African women’s bodies and spirituality? These questions are difficult to determine and should be analyzed as aggregate evidence of intersectional discrimination.

At the same time, not acknowledging discrimination as specifically race or sex based may not be feasible or desired. Antidiscrimination statutes, like Title VII, the ADA, and the ADEA, only protect against adverse employment actions due to specific characteristics, like race, religion, sex, national origin, age, and disability. Thus, according to employment discrimination doctrine, courts need to consider bases for discrimination. If an employer were to fire a worker for being poor, for instance, remedies would (unfortunately) be unavailable.

Additionally, intersectional scholars may advocate for the classification of evidence as race based, sex based, and race and sex based. Crenshaw encourages intersectionality as a legal concept to avoid the erasure of Black women’s experiences.[265] By not explicitly naming racism or sexism, courts could contribute to this erasure. Only focusing on discrimination generally, without identifying the root systemic cause of racism, could also advance problematic conceptions of “colorblindness.”[266]

So, while determining bases for discrimination is difficult work, courts must endeavor to do so while applying the aggregation method. This may pose an obstacle, particularly given that judges within the Ninth Circuit are whiter, straighter, and composed of more men than the general public.[267] While judges having more nuanced and robust understandings of systemic oppression would be helpful in abating the misclassification of evidence, ultimately the plaintiff’s counsel bears the burden of educating judges on the nature of the discrimination the plaintiff experienced. But even if courts misclassify discrimination, albeit still problematic, at least aggregating all evidence of discrimination works as a stopgap to systematically ensure plaintiffs have the best shot at alleging intersectional claims.

B.    Do Not Require Unique Stereotypes

Some courts have erroneously required a salient stereotype of an intersectional identity to acknowledge an intersectional claim. This mistaken requirement results in barring intersectional plaintiffs from their rightful relief under Lam.

For instance, the court in Luce stated that “[u]nlike African-American or Asian women, there can be no argument that there are unique discriminatory biases against older workers with disabilities.”[268] The court could not, and did not try to, conceptualize how older people with disabilities may face discrimination that younger people with disabilities, older people without disabilities, and certainly, younger people without disabilities do not face. Although there are few commonly known, specifically named stereotypes for older workers with disabilities, age and disability are highly related, with 30 percent of people over sixty-five having some kind of disability.[269] Further, studies show ageism and disablism are intrinsically correlated; people may perceive both older workers and workers with disabilities as “less competent” and “less productive.”[270]

The court in Lamb also sought a cognizable unique stereotype in assessing an intersectional claim. The court weakened the “inference” of intersectionality mapped out in Lam because “Ms. Lamb has offered no special stereotypes that pertain to older, disabled women, which would not also apply to older, disabled men” in the alleging of a sex, disability, and age claim.[271] Again, the court rejected an intersectional claim because the judge could not ascertain stereotypes against older women with disabilities. Although people may stereotype both older workers and workers with disabilities as “less competent” and “less productive,” these stereotypes could be exacerbated for a woman.[272]

Though courts have wielded unique stereotypes as a tool to cut down intersectionality claims, stereotype analysis need not be abandoned in intersectional jurisprudence. Lam illustrates one possibility: a unique stereotype may bolster the validity of an intersectional claim, while the absence of a cognizable stereotype, however, would not preclude intersectionality.

Adams demonstrates another model. In Adams, the court recognized a cross-statute intersectional claim of race and age, in part, because of unique stereotypes.[273] Despite the court not identifying a cognizable, named stereotype of older Black men, the court understood that “an African-American who is at least 40 years old may be ‘subject to a set of stereotypes and assumptions suffered neither by [Whites] nor by [African-Americans under the age of 40].’”[274]

Adams permitted an aggregation of stereotypes as opposed to requiring stereotypes at a particular intersection. Instead of focusing on stereotypes of older Black men, Adams considered how stereotypes of Black people and stereotypes of older workers may come together to affect an older, Black plaintiff and, thus, magnify discrimination.[275] This approach stands in contrast to Luce and Lamb in which the courts could not identify stereotypes aimed at the plaintiff’s specific intersection.

C.     Permit Intersectionality Across Statutes

A plaintiff experiencing intersectional discrimination across statutes should not be denied a remedy. A significant obstacle to intersectionality is that three different statutes govern employment discrimination. On the one hand, as the Luce court assumed, because Congress has not “amended Title VII to provide protections to older Americans and Americans with disabilities,” Congress may not have “intended to allow plaintiffs to mix and match theories of liability for employment discrimination.”[276] On the other hand, people do not experience discrimination within statutory bounds.

McKinney demonstrates how plaintiffs experience discrimination across statutes. Rose McKinney alleged her supervisor spoke to her differently than the other female employee in her department (who was not Black or older), changed her timecards without consent, and reassigned her duties to younger employees.[277] McKinney’s supervisor also criticized the “attire, makeup, and hair” of other Black employees and said “he did not like women questioning him.”[278] The court separated the plaintiff’s claims into race-and-sex and age. However, the complexity of McKinney’s experience cannot be bisected. Does criticizing an older Black woman’s physical appearance constitute race and sex discrimination, but not age discrimination?[279] Similarly, can speaking differently to McKinney be reasonably attributed to a confluence of race, sex, and age discrimination?[280]

Besides the fact that workers experience discrimination and harassment regardless of statutory bounds, the same logic that upholds intersectional race-and-sex claims extends across statutes. Bisecting a person’s identity is just as erroneous along race and age lines as it is along race and sex. The nondiscrimination of younger women should not diminish the disparate treatment claim of an older woman, just as much as the nondiscrimination of White women should not weaken discrimination allegations by women of color.

Additionally, the thrust of Congress’s antidiscrimination law is that no person should face adverse employment action on impermissible bases, like race, color, religion, sex, national origin, age, or disability. Taken as a whole, Title VII, the ADA, and the ADEA indicate that discrimination based on certain characteristics is forbidden; employment decisions based on race and disability, for instance, ought not to stand in any regard. Since Title VII itself, arguably, has intersectional origins, courts should read across employment antidiscrimination statutes to instantiate intersectionality.[281]

Perhaps most persuasively, the EEOC’s own Compliance Manual, guidance from the agency responsible for enforcing federal employment discrimination protections, affirms cross-statute intersectionality. In the Compliance Manual, under the “Intersectional Discrimination” subsection, the EEOC states the law “prohibits individuals from being subjected to discrimination because of the intersection of their race and a trait covered by another EEO statute—e.g., race and disability, or race and age.”[282]

The EEOC manual does not gain much traction in courts, however, because the EEOC’s interpretive guidance is specifically met with “remarkably little respect.”[283] In fact, “[d]espite the fact that Title VII, the ADA, and the ADEA all explicitly grant some rulemaking authority to the EEOC,” the Supreme Court “has applied Chevron deference in only two antidiscrimination cases.”[284] Thus, courts across the board are apt to apply the less deferential Skidmore standard, leaving EEOC interpretations faring “poorly” in the judicial system.[285] Scholars have hypothesized why this is the case; leading theories include that the Court does not view the EEOC’s work as careful or its expertise as valuable, the “political nature of the subject matter,” and general “suspicion” of the EEOC.[286]

D.    Intersectionality is Critical in Hostile Work Environment Doctrine

Some courts are loathe to recognize intersectionality in hostile work environment claims and, instead, limit Lam to only disparate treatment claims. But courts should not limit Lam in this way; intersectionality is especially critical in proving hostile work environment claims because the amount and intensity of evidence plaintiffs allege is essential to surviving summary judgment. To prove hostile work environment, harassment “must be sufficiently severe or pervasive ‘to alter the conditions of the victim’s employment and create an abusive working environment.’”[287] The “severe or pervasive” standard speaks to either the frequency or intensity, or both, of the harassment and is the standard of proof for assessing plaintiffs’ evidence at summary judgment.[288]

When a court bifurcates a plaintiff’s harassment claim, the court directly tampers with the evidence of severity and pervasiveness, which harms the plaintiff’s chances to prevail. For instance, in Esposito, the court bifurcated Karen Hardin’s race and age hostile work environment claim.[289] The president, vice president, and dean of a community college in Maricopa County asked Hardin about her race, age, and plans for retirement, sometimes in front of others; stated no Black employees should be hired and instead they needed to hire a White man; stated they “needed to ‘fire burn’ the ‘old trees’ to make room for ‘new growth’”; and stated the vice president of academic affairs “should buy an ankle bracelet to chain [Hardin] to her desk.”[290]

While finding the “severity and pervasiveness of the age-based comments are genuine issues of material fact,” the court granted summary judgment on the plaintiff’s bifurcated racial harassment claim.[291] Though Hardin’s age discrimination claim was sufficient to be tried before a jury, it was robbed of the significant race-related evidence of harassment. If Hardin could properly present her evidence intersectionally, the whole record of evidence would be more likely to cross the threshold of “severe and pervasive.” With a weakened record, however, her ability to succeed on the merits is in question.

Some courts flat-out refuse to apply Lam to hostile work environment claims, even though an intersectional approach is just as necessary. In De La Rosa, the court specifically held Lam intersectionality did not apply because the case at hand was a “hostile workplace claim” and not, as the court mistakenly categorized Lam, a “disparate impact case.”[292] In Salem v. Heritage Square Inc., the court was skeptical about applying Lam to hostile work environment claims; the court gave credence to the defendant’s argument that a “hostile work-environment claim” was distinct from Lam’s focus on “discrimination in hiring decisions.”[293] De La Rosa and Salem stand in contrast to court decisions that employed Lam in hostile work environment cases, such as in Anthony, Njenga, Jefferson, and Randall.[294]

Conclusion

Almost thirty years ago, the Ninth Circuit green-lighted intersectionality in employment discrimination doctrine with its decision in Lam. Thereafter, district courts have both expanded and restricted Lam’s intersectionality. Charting a course of progress and regression, some courts took the leap of recognizing intersectionality across statutes, as the EEOC instructs, while others reverted to bifurcating claims and bisecting plaintiffs’ identities. Some courts also have utilized the approach of aggregating evidence of intersectionality, while others have continued to bifurcate the evidence by single axes.

Ultimately, Lam left open two questions: (1) what is the scope of intersectionality mandated? and (2) how should courts treat intersectional evidence? Courts interpreting Lam answer these questions in a variety of ways. This Note discussed the straightforward applications of Lam to race-and-sex claims, the recognition of intersectional claims of protected characteristics within Title VII, and the expansion of Lam to encompass intersectionality across statutes. These findings speak to the scope of intersectionality Lam authorizes. In assessing intersectional evidence, courts have employed methods that are consistent and inconsistent with Lam. These methods include aggregation of evidence, mathematical treatment where courts first analyze evidence separately then collectively, and direct bifurcation.

These cases demonstrate that determining plaintiffs’ bases of discrimination is difficult work, and courts often struggle to classify the evidence. To avoid applying intersectionality, courts often require unique stereotypes, especially to less widely known intersections of identity. Additionally, recognizing intersectionality across statutes is yet to be fully resolved. Lastly, intersectional analysis is imperative in intersectional plaintiffs’ success in hostile work environment claims.

In short, Lam’s green-light of intersectionality promised real progress for intersectional plaintiffs. Yet, courts have been split in their interpretation of Lam, taking it to embrace intersectionality as well as to restrict it. While scholars reasonably continue to hold up Lam as the “high water mark” of intersectional Title VII jurisprudence, the Ninth Circuit and its district courts must continue to work towards ensuring that comprehensive intersectionality is the standard lens used to assess employment discrimination cases.

Copyright © 2024 Risa Nagel, J.D., University of California, Berkeley, School of Law, 2024. B.A., Hamilton College, 2016.  Thank you to Professor Kathryn Abrams for your invaluable guidance, the Human Rights and Writing Workshop for your feedback on early drafts of this piece, and the wonderful California Law Review team for your thoughtful edits. As a White woman writing about racial justice, I also want to alert readers to my own blindspots, and acknowledge the scholars of color cited throughout this article who paved the way and continue to be on the frontlines of advancing intersectionality in the law.

           [1].     Interview with Catherine Fisk, Professor, Univ. of Berkeley Sch. of L. in Berkeley, Cal. (Mar. 2, 2023) [hereinafter Fisk Interview].

           [2].     Appellant’s Reply Brief at 6 n.5, Lam v. Univ. of Hawaiʻi, 40 F.3d 1551 (9th Cir. 1994) (No. 91-16587); Fisk Interview, supra note 1.

           [3].     Lam, 40 F.3d at 1555.

           [4].     Id.

           [5].     Id.

           [6].     Id.

           [7].     Memorandum from Mari Matsuda, Member of the Fac. Appointment Comm. at the Univ. of Hawaiʻi Sch. of Law, to Dean, Law Faculty, Pacific Asian Legal Stud. Comm., Fac. Appointment Comm. (Jan. 22, 1988).

           [8].     Lam, 40 F.3d at 1556.

           [9].     “Professor A” is an alias used by the Ninth Circuit following a motion by the Attorney General of Hawaiʻi, on behalf of the faculty named in the original opinion, to redact names of those who discriminated against Lâm. During our interview, Fisk recalled that “the fact that influential law professors could convince the Attorney General to file a motion to redact just struck me as a dispiriting aspect of the power structure” at play in Hawaiʻi. Fisk Interview, supra note 1.

         [10].     Lam, 40 F.3d at 1556.

         [11].     Id.

         [12].     Id.

         [13].     Fisk Interview, supra note 1.

         [14].     Id.

         [15].     Lam, 40 F.3d at 1554.

         [16].     Fisk Interview, supra note 1.

         [17].     Id.

         [18].     Lam, 40 F.3d at 1557.

         [19].     Id.

         [20].     Id. at 1561.

         [21].     Id.

         [22].     Id. at 1561–62.

         [23].     See Minna J. Kotkin, Diversity and Discrimination: A Look at Complex Bias, 50 Wm. & Mary L. Rev. 1439, 1440 (2009) (“Lam represents the high water mark in this entire saga.”); Serena Mayeri, Intersectionality and Title VII: A Brief (Pre-)History, 95 B.U. L. Rev. 713, 730 n.106 (2015) (“The scholarly consensus seems to be that Lam v. University of Hawaiʻi, a 1994 Ninth Circuit case, was the ‘high water mark’ for intersectionality doctrine.”); Yvette N. A. Pappoe, The Shortcomings of Title VII for the Black Female Plaintiff, 22 U. Pa. J.L. & Soc. Change 1, 14 (2019) (“Lam v. University of Hawaiʻi is considered the ‘high water mark’ within the intersectionality and Title VII jurisprudence landscape.”).

         [24].     Lam, 40 F.3d at 1562, n.20.

         [25].     See Jane Coaston, The Intersectionality Wars, Vox, (May 28, 2019), https://www.vox.com/the-highlight/2019/5/20/18542843/intersectionality-conservatism-law-race-gender-discrimination [https://perma.cc/9P8V-FG8R]; see also Intersectionality Self-Study Guide, Washington Univ. in St. Louis Cntr. for Diversity and Inclusion, https://students.wustl.edu/intersectionality-self-study-guide/ [https://perma.cc/G3BD-TE2V].

         [26].     Lam, 40 F.3d at 1562, n.20; Kimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscriminatory Doctrine, Feminist Theory and Antiracist Politics, 1989 U. Chi. Legal F. 139 (1989) [hereinafter Intersection of Race and Sex].

         [27].     Though Crenshaw was the first to specifically name intersectionality, she drew on a long tradition of Black feminist scholars and advocates. Sojourner Truth spoke of intersectionality as a concept in her renowned “Ain’t I a Woman?” speech given at the Women’s Convention in 1851. In it, Truth stressed that separating Black rights from women’s rights ignored her experience as a Black woman. Sojourner Truth, “Ain’t I a Woman?” Speech at the Women’s Convention (May 29, 1851) (transcript available in the Internet Modern History Sourcebook, Fordham Univ., https://sourcebooks.fordham.edu/mod/sojtruth2.asp [https://perma.cc/BM7B-P2ZT]).

         [28].     Crenshaw, supra note 26, at 140. Courts similarly require single-axis analysis for other forms of discrimination, like national origin and religion.

         [29].     708 F.2d 475 (9th Cir. 1983).

         [30].     Crenshaw, supra note 26, at 143–46.

         [31].     Moore, 708 F.2d at 480. Although Moore was about typicality in class action certification, the Ninth Circuit in Lam saw the Moore decision’s ruling that a “[B]lack female [was] not necessarily representative of interests of [B]lack males and [W]hite females” as opposing Lam’s intersectional holdings. Lam v. Univ. of Hawaiʻi, 40 F.3d 1551, 1562 (9th Cir. 1994) (citing Moore in contrast to the court’s holding that “[r]ather than aiding the decisional process, the attempt to bisect a person’s identity at the intersection of race and gender often distorts or ignores the particular nature of their experiences”).

         [32].     Crenshaw, supra note 26, at 144.

         [33].     Id. (quoting Moore, 708 F.2d at 480) (emphasis by Crenshaw).

         [34].     Crenshaw, supra note 26, at 140.

         [35].     Id.

         [36].     Jamillah Bowman Williams, Maximizing #MeToo: Intersectionality & the Movement, 62 B.C. L. Rev. 6, 1797, 1811 (2021) [hereinafter Maximizing #MeToo].

         [37].     Crenshaw, supra note 26, at 149.

         [38].     Williams, supra note 36, at 1812. Similarly, research by Marcus Anthony Hunter shows that about 50 percent of Black and gay men who participated in the study Hunter undertook identify most closely as “Blackgay,” or an “interlocking conceptualization” of race and sexuality. Marcus Anthony Hunter, All the Gays Are White and All the Blacks Are Straight: Black Gay Men, Identity, and Community, 7 Sex Res. Soc. Policy 81, 85 (2010).

         [39].     Williams, supra note 36, at 1812 (citing Ashleigh Shelby Rosette, Rebecca Ponce de Leon, Christy Zhou Koval & David A. Harrison, Intersectionality: Connecting Experiences of Gender with Race at Work, 38 Rsch. Organizational Behav. 1, 12 (2018)). Harassment is a form of employment discrimination. A plaintiff alleging a hostile work environment claim must argue the unwanted harassment they faced was so “severe and pervasive” as “to alter their conditions of employment and create an abusive working environment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986).

         [40].     Judith A. Winston, Mirror, Mirror on the Wall: Title VII, Section 1981, and the Intersection of Race and Gender in the Civil Rights Act of 1990, 79 Calif. L. Rev. 775, 796–97 (1991).

         [41].     Williams, supra note 36, at 1811.

         [42].     Jamillah Bowman Williams, Beyond Sex-Plus: Acknowledging Black Women in Employment Law and Policy, 25 Emp. Rts. & Emp. Pol’y J. 13, 18 (2021) [hereinafter Beyond Sex-Plus]; Winston, supra note 40, at 798.

         [43].     See discussion infra Parts V.D.4, V.D.6, VI.A; Crenshaw, supra note 26, at 145.

         [44].     Crenshaw, supra note 26, at 150.

         [45].     Lam v. Univ. of Hawaiʻi, 40 F.3d 1551, 1561 (9th Cir. 1994).

         [46].     Crenshaw, supra note 26, at 140.

         [47].     Winston, supra note 40, at 798.

         [48].     This was the case in Bala v. Oregon Health & Sci. Univ., 2022 WL 17834684, at *7 (D. Or. Aug. 10, 2022), report and recommendation adopted in part, rejected in part, 2022 WL 17593169 (D. Or. Dec. 13, 2022). Penalizing an Asian woman for being “condescending” may be attributable to stereotypes of Asian women as particularly “obedient” and “meek.” See Rosette et. al, supra note 39, at 5.

         [49].     Minna J. Kotkin, Diversity and Discrimination: A Look at Complex Bias, 50 Wm. & Mary L. Rev. 1439, 1459 (2009). Michael Selmi, a professor at the Sandra Day O’Connor School of Law at Arizona State University, has hypothesized that employment discrimination claims are so difficult for plaintiffs, in general, to win for two reasons: one, the “general misconception” that “employment cases are easy—not difficult—to win” and two, courts’ “various biases” against marginalized plaintiffs. Michael Selmi, Why Are Employment Discrimination Cases So Hard to Win, 61 La. L. Rev. 555, 556 (2001). In particular, Selmi notes, “[R]ace cases . . . are generally the most difficult claim for plaintiffs to succeed on” because “courts often seem mired in a belief that the claims are generally unmeritorious.” Id.

         [50].     Rachel Kahn Best & Linda Hamilton Krieger, Multiple Disadvantages: An Empirical Test of Intersectionality Theory in EEO Litigation, 45 Law & Soc’y Rev. 991, 1009 (2011)

         [51].     Kimberlé Crenshaw, Race, Gender, and Sexual Harassment, 65 S. Cal. L. Rev. 1467 (1992).

         [52].     Rosette et al., supra note 39, at 3.

         [53].     Crenshaw, Intersection of Race and Sex, supra note 26, at 157.

         [54].     Katy Steinmetz, She Coined the Term ‘Intersectionality’ Over Thirty Years Ago. Here’s What It Means to Her Today, Time Magazine (Feb. 20, 2020), https://time.com/5786710/kimberle-crenshaw-intersectionality/ [https://perma.cc/GWS5-KB34].

         [55].     Rosette et al., supra note 39, at 2.

         [56].     What is Intersectionality?, Ctr. for Intersectional Just.,  https://www.intersectionaljustice.org/what-is-intersectionality [https://perma.cc/UX94-9QAY].

         [57].     413 F. Supp. 142, 143 (E.D. Mo. 1976), aff’d in part, rev’d in part, 558 F.2d 480, 485 (8th Cir. 1977). Scholars have labeled Degraffenreid as the “seminal case on courts’ refusal to acknowledge” intersectionality, the “negative pole” of intersectional jurisprudence, and an excessively “narrow interpretation of Title VII.” Pappoe, supra note 23, at 10; Kathryn Abrams, Title VII and the Complex Female Subject, 92 Mich. L. Rev. 2479 (1994); Williams, Beyond Sex-Plus, supra note 42, at 24.

         [58].     Degraffenreid, 413 F. Supp. at 143.

         [59].     615 F.2d 1025, 1032 (5th Cir. 1980).

         [60].     Id. (emphasis added).

         [61].     Abrams, supra note 57, at 2497.

         [62].     Id.

         [63].     Williams, Beyond Sex-Plus, supra note 42, at 28.

         [64].     Id. at 31.

         [65].     Id.

         [66].     For a wonderfully written article detailing the circuit split on intersectional employment discrimination, see Williams, supra note 42.

         [67].     Lam v. Univ. of Hawaiʻi, 40 F.3d 1551, 1555 (9th Cir. 1994).

         [68].     Id. at 1556.

         [69].     Id. at 1554.

         [70].     Id. at 1558. Lâm alleged discrimination during both of the University’s searches for a director of PALS. Id. at 1554. However, as detailed at infra note 84, I will mostly be discussing the first search. The following summary of evidence applies only to the first search.

         [71].     Lam, 40 F.3d at 1558; Appellant’s Reply Brief, supra note 2, at 7 n.6.

         [72].     Lam, 40 F.3d at 1558.

         [73].     Appellant’s Reply Brief, supra note 2, at 1.

         [74].     Lam, 40 F.3d at 1556; Appellant’s Reply Brief, supra note 2, at 13 n.14.

         [75].     Lam, 40 F.3d at 1556; Appellant’s Reply Brief, supra note 2, at 13 n.14.

         [76].     Lam, 40 F.3d at 1556; Appellant’s Reply Brief, supra note 2, at 13 n.14.

         [77].     Appellant’s Reply Brief, supra note 2, at 13 n.14.

         [78].     Lam, 40 F.3d at 1556.

         [79].     Id. at 1560; Appellant’s Reply Brief, supra note 2, at 16.

         [80].     Appellant’s Reply Brief, supra note 2, at 5 n.4.

         [81].     Lam, 40 F.3d at 1557.

         [82].     Id. at 1556.

         [83].     Lam v. Univ. of Hawaiʻi, No. 89-00378 HMF, 1991 WL 490015, at *10 (D. Haw. Aug. 13, 1991), aff’d sub nom. Lam v. Univ. of Hawaiʻi, 40 F.3d 1551 (9th Cir. 1994).

         [84].     Lam, 1991 WL 490015, at *10. Lâm alleged discrimination during both the first and second searches by the University for the director of PALS. Lam, 40 F.3d at 1554. The district court’s ruling granted summary judgment for the first search, but not the second. Id. at 1558. After a bench trial on the second search, the district court entered judgment for the defendants. Id. Lâm appealed both rulings. Id. Because the Ninth Circuit only reversed the district court’s ruling on the first search, I will only focus on the details of the first search. Any ostensible discrepancy between the Ninth Circuit’s decision to affirm the district court’s ruling in the second search, but not the first, likely rests on two grounds. First, the legal standard for overturning a bench trial is higher than that of summary judgment: a “clear error in the district court’s finding of fact” versus finding a “genuine issue of material fact.” Id. at 1567, 1555–56. Second, the Ninth Circuit believed that during “the two years intervening between the first and second searches,” it would be lawful for the appointments committee to conclude that Lâm was “a less attractive candidate.” Id. at 1567 n.28.

         [85].     Id. at 1561.

         [86].     Id. at 1561.

         [87].     Id. at 1562 n.19.

         [88].     Id. at 1561.

         [89].     Id. at 1562 n.19 (emphasis added).

         [90].     Id.

         [91].     Id. at 1562.

         [92].     Id. at 1562 n.20.

         [93].     Id. at 1561.

         [94].     Crenshaw, Intersection of Race and Sex, supra note 26, at 140.

         [95].     Lam, 40 F.3d at 1562.

         [96].     Id. at 1562 n.21.

         [97].     Id. at 1562.

         [98].     Id. at 1561 (emphasis added).

         [99].     Id. at 1562 (emphasis added).

      [100].     Id. (emphasis added).

      [101].     Id.

      [102].     Id. at 1561 n.16.

      [103].     Id. According to Fisk, Lâm strongly believed national origin discrimination was at play in her case. Fisk Interview, supra note 1. Lâm talked of the ethnic hierarchy in Hawaiʻi that placed Japanese Hawaiians at the top, Vietnamese and other Southeast Asians in the middle, and Native Hawaiians at the bottom. Id.; see also Imani Altemus-Williams & Marie Eriel Hobro, Hawaiʻi Is Not the Multicultural Paradise Some Say It Is, National Geographic (May 17, 2021), https://www.nationalgeographic.com/culture/article/hawaii-not-multicultural-paradise-some-say-it-is [https://perma.cc/6PNC-MZ6F].

      [104].     The importance of recognizing both race and national origin discrimination should not be overlooked. “National origin discrimination is an essential factor to consider in Asian women’s cases because of the tendency to confuse or equate race and national origin. The idea of ‘foreignness’ that accompanies an Asian appearance may be overlooked if the national origin factor is excluded.” Virginia W. Wei, Asian Women and Employment Discrimination: Using Intersectionality Theory to Address Title VII Claims Based on Combined Factors of Race, Gender and National Origin, 37 B. C. L. Rev. 771, 811 (1996).

      [105].     Lam, 40 F.3d at 1562 (emphasis added).

      [106].     Id. at 1561–62; see supra Part IV.D.i. For instance, discrimination targeting Muslim women is equally difficult to parse along separate sex and religion lines and also “cannot be neatly reduced to distinct components.” Lam, 40 F.3d at 1562; see Francesca Donner, ‘Muslim Women Are Everything’ Turns the Page on Stereotypes, N.Y. Times (Nov. 23, 2020), https://www.nytimes.com/2020/11/23/us/muslim-women-are-everything-book-seema-yasmin.html [https://perma.cc/EVH5-6DX6].

      [107].     Lam, 40 F.3d at 1562 (emphasis added).

      [108].     See Williams, Beyond Sex-Plus, supra note 42, at 32.

      [109].     Lam, 40 F.3d at 1562.

      [110].     Williams, Beyond Sex-Plus, supra note 42, at 35. Williams also explicitly categorizes Lam as operating in the totality or aggregate framework. Id.

      [111].     See infra Part V.D.iii for a discussion of Saberi v. BFS Retail & Com. Operations, No. C 08-4232 JL, 2010 WL 11590000 (N.D. Cal. Aug. 10, 2010).

      [112].     Classifying discrimination as purely based on sex or purely based on race runs counter to intersectionality theory. Not only does it deny the lived experience of the person facing discrimination but is often impossible to distinguish what is sexually motivated and what is racially motivated. Ultimately, this Note concludes that categorizing discrimination by race and sex in a race-and-sex claim is difficult and not to be taken lightly. However, throughout my discussion of how to treat evidence in intersectional claims, I will often reference sex discrimination and race discrimination separately for clarity.

      [113].     Lam, 40 F.3d at 1562 n.18. I call this dicta because the court clarified that, because it is “barred from weighing conflicting evidence in ruling on a motion for summary judgment,” it “express[es] no view on whether such a one-way bar is justified in either some or all cases.” Id. The court still chose to “note” the relevancy of evidence “nonetheless.” Id.

      [114].     Id. at 1560.

      [115].     Id. at 1556, 1557, 1560, and 1562; Appellant’s Reply Brief, supra note 2, at 5 n.4.

      [116].     Winston, supra note 40, at 798.

      [117].     Crenshaw, Intersection of Race and Sex, supra note 26, at 149; Kimberlé Crenshaw, Whose Story Is It, Anyway? Feminist and Antiracist Appropriations of Anita Hill, in Race-ing Justice, En-Gendering Power: Essays on Anita Hill, Clarence Thomas, and the Construction of Social Reality 402, 405 (Toni Morrison ed., 1992).

      [118].     The following descriptions of employment discrimination cases, as well as the proposed reforms in Part VI, make frequent mention of specific examples of egregious and horrific discrimination. I include these examples because they directly demonstrate how complex and insidious intersectional discrimination often is. However, the specificity and sheer volume of the discrimination detailed below may be triggering.

      [119].     898 F. Supp. 1435 (E.D. Cal. 1995).

      [120].     Id. at 1446.

      [121].     Id. at 1445.

      [122].     Id. (emphasis added).

      [123].     Id.

      [124].     Id.

      [125].     360 F. Supp. 2d 1104, 1117 (D. Haw. 2005); No. 217CV0814JAMDBPS, 2019 WL 2868963, at *4 (E.D. Cal. July 3, 2019), report and recommendation adopted, No. 217CV0814JAMDBPS, 2019 WL 4955189 (E.D. Cal. Oct. 8, 2019); No. 3:17-CV-00807-HZ, 2018 WL 4955197, at *12 (D. Or. Oct. 12, 2018).

      [126].     No. CV-10-02745-PHX-GMS, 2012 WL 2898864, at *6 (D. Ariz. July 16, 2012).

      [127].     Anthony, 898 F. Supp. at 1445; see supra Part IV.D.vi.

      [128].     Anthony, 898 F. Supp. at 1445.

      [129].     Id. at 1442, 1445.

      [130].     No. CV 16-8875 PA (AGRX), 2017 WL 10574364, at *4 (C.D. Cal. Apr. 17, 2017).

      [131].     Id., at *4.

      [132].     Id., at *1.

      [133].     Id., at *4.

      [134].     42 U.S.C. § 2000e-2. Within “sex” Title VII additionally protects against discrimination on the basis of sexual orientation and gender identity. Bostock v. Clayton County, 590 U.S. 644 (2020). Perhaps because of the recency of this long overdue legal development, I did not find any intersectional claims involving sexual orientation and gender identity in district courts in the Ninth Circuit. I expect those claims will become increasingly common.

      [135].     Lam v. Univ. of Hawaiʻi, 40 F.3d 1551, 1562 (9th Cir. 1994).

      [136].     Judge v. Marsh, an opinion by the District Court for the District of Columbia and thus outside the Ninth Circuit scope of this paper, became popular within Title VII intersectional jurisprudence scholarship for fervently restricting intersectional claims to maximum two “protected, immutable characteristic[s]” for fear that employment discrimination would turn into a “many-headed Hydra.” 649 F. Supp. 770, 780 (D.D.C. 1986). The same skepticism did not appear in the cases I researched.

      [137].     No. C-08-04019 EDL, 2010 WL 1261493, at *14 (N.D. Cal. Mar. 30, 2010).

      [138].     Id., at *19.

      [139].     Id., at *14 n.1.

      [140].     Id.

      [141].     No. CV 05-00708 HG KSC, 2008 WL 11426811, at *5 (D. Haw. Feb. 12, 2008), aff’d sub nom. Tagupa v. Mabus, 329 F. App’x 788 (9th Cir. 2009).

      [142].     229 F.3d 1157 (9th Cir. 2000).

      [143].     535 F. Supp. 2d 1149, 1162–64 (D. Haw. 2008).

      [144].     Id. at 1155.

      [145].     Id. at 1163.

      [146].     See No. 05-CV-1798 ST, 2007 WL 4565163 (D. Or. Dec. 19, 2007).

      [147].     Id., at *20.

      [148].     Id.

      [149].     No. CIV. 93-302-FR, 1995 WL 67672, at *1 (D. Or. Feb. 16, 1995).

      [150].     Id.

      [151].     No. CV 07-7052 PA (JTLX), 2009 WL 10671413, at *2 (C.D. Cal. June 22, 2009), aff’d sub nom. Square v. Donahoe, 430 F. App’x 633 (9th Cir. 2011); 819 F. Supp. 2d 1125, 1131 (D. Haw. 2011).

      [152].     Square, 2009 WL 10671413, at *3.

      [153].     Id., at *4.

      [154].     Kagawa, 819 F.Supp.2d at 1131.

      [155].     Id.

      [156].     Id. at 1130–31.

      [157].     No. 3:14-CV-01508-MO, 2015 WL 6124002, at *4–6 (D. Or. Oct. 16, 2015). I will discuss Lamb’s bifurcation approach and explicit rejection of Lam in Part V.D.ii.

      [158].     No. 307-CV-00583-RCJ-RAM, 2009 WL 3319802, at *6, *14, *18 (D. Nev. Oct. 14, 2009).

      [159].     Lam v. Univ. of Hawaiʻi, 40 F.3d 1551, 1554 (9th Cir. 1994).

      [160].     No. CV1509683RSWLAJWX, 2016 WL 2885861, at *3 (C.D. Cal. May 17, 2016).

      [161].     42 U.S.C. § 2000e-2; 42 U.S.C §12101; 29 U.S.C. §621.

      [162].     166 F.R.D. 457, 461 (S.D. Cal.), aff’d, 167 F.R.D. 88 (S.D. Cal. 1996).

      [163].     Id. Though the court in Luce references four separate statutes, my discussion of bifurcation along statute lines focuses mostly on Title VII, the ADA, and the ADEA. I exclude the Rehabilitation Act from this discussion because it addresses discrimination on the basis of disability for federal contractors and programs receiving federal funds, whereas the ADA focuses specifically on discrimination in employment. 42 U.S.C. §12112; see Ahmed v. Napolitano, 825 F. Supp. 2d 112, 115 (D.D.C. 2011).

      [164].     Luce, 166 F.R.D. at 461.

      [165].     Id.

      [166].     No. CV-15-00767-PHX-NVW, 2016 WL 7373339, at *4 (D. Ariz. Dec. 20, 2016).

      [167].     No. CV08-07-GW(EX), 2008 WL 11338236, at *1 n.2 (C.D. Cal. Nov. 17, 2008).

      [168].     Id.

      [169].     Luce, 166 F.R.D. at 460 (citing Lam v. Univ. of Hawaiʻi, 40 F.3d 1551, 1562 (9th Cir. 1994)) (“The court in Lam expressly recognized . . . there are peculiar stereotypes associated with subclasses of African-American and Asian women under Title VII. ‘Like other subclasses under Title VII, Asian women are subject to a set of stereotypes and assumptions shared neither by Asian men nor by [W]hite women.’”).

      [170].     Williams, Beyond Sex-Plus, supra note 42, at 31–33 (arguing sex-plus is limiting as a doctrine because “sex discrimination is still at the heart of the claim which de-centers racial identity and experiences,” some circuit courts “have not similarly acknowledged race-plus as a viable claim,” and sex-plus “overemphasize[s] comparator analysis”); Pappoe, supra note 23, at 19 (stating “[i]t is unfair to Black women for courts to have to construe race as a secondary trait in order to grant them protection under [Title VII]”); Abrams, supra note 57, at 2522 (noting “doctrines such as sex-plus function less as means of recognizing the variable and highly contextualized faces of gender discrimination than as means of preventing the strategic deployment of ostensibly neutral categories, such as marriage or parental status, to defeat the more general purposes of the statute”).

      [171].     166 F.R.D. at 460.

      [172].     Id. at 460–61 (citing Kelly v. Drexel Univ., 907 F. Supp. 864, 875 n.8 (E.D. Pa. 1995), aff’d, 94 F.3d 102 (3d Cir. 1996)).

      [173].     Id. at 457.

      [174].     Lam v. Univ. of Hawaiʻi, 40 F.3d 1551, 1562 n.21 (9th Cir. 1994).

      [175].     No. 3:14-CV-01508-MO, 2015 WL 6124002, at *4 (D. Or. Oct. 16, 2015). Although the claim alleged was across statutes, the court in Lamb did not base its decision off statutory interpretation or congressional intent.

      [176].     Id., at *4.

      [177].     Id.

      [178].     Id. Curiously, the Lamb court did combine the plaintiff’s age and disability claim across statutes, as mentioned supra Part V.C. Lamb, 2015 WL 6124002, at *6. The court did so aptly, even aggregating “evidence that younger, non-disabled people were being punished differently for the same mistakes.” Id.

      [179].     Id., at *4.

      [180].     Id., at *4–5.

      [181].     Luce v. Dalton, 166 F.R.D. 457, 461 (S.D. Cal. 1996).

      [182].     Id. at 460.

      [183].     No. C 08-4232 JL, 2010 WL 11590000, at *22 (N.D. Cal. Aug. 10, 2010). The court considered the sexual and national origin harassment action under the California Fair Employment and Housing Act (FEHA); however, courts interpret FEHA consistently with Title VII. See Ambat v. City of San Francisco, 757 F.3d 1017, 1022–23 (9th Cir. 2014).

      [184].     Saberi, 2010 WL 11590000, at *2–4. Notably, much of the vilest evidence of discrimination was time-barred for not “complying with administrative exhaustion requirement,” but the entire record of evidence seemed to suggest Saberi’s supervisor discriminated against him for being a gay, Iranian man. Id., at *22.

      [185].     Id.

      [186].     Id.

      [187].     Id.

      [188].     Id.

      [189].     Id., at *24.

      [190].     Snider v. Greater Nevada, LLC, No. 307-CV-00583-RCJ-RAM, 2009 WL 3319802, at *18 (D. Nev. Oct. 14, 2009).

      [191].     Id., at *9.

      [192].     Id.

      [193].     Lamb v. Kaiser Found. Health Plan Northwest, No. 3:14-CV-01508-MO, 2015 WL 6124002, at *4 (D. Or. Oct. 16, 2015).

      [194].     De La Rosa v. Hanger Prosthetics & Orthotics, No. CV-11-00306-PHX-DGCO, 2012 WL 3819459, at *7 n.5 (D. Ariz. Sept. 4, 2012).

      [195].     No. EDCV07700VAPJCRX, 2008 WL 11336497, at *5 (C.D. Cal. Oct. 16, 2008).

      [196].     No. 3:18-CV-00850-YY, 2022 WL 17834684, *13 (D. Or. Aug. 10, 2022), aff’g in part, vacating in part, and remanding, Bala v. Henrikson, No. 23-35034, 2024 WL 546349 (9th Cir. Feb. 12, 2024).

      [197].     Bala, 2022 WL 17834684, at *14.

      [198].     Id., at *7.

      [199].     Id., at *11.

      [200].     Id., at *11, *13. In fact, the disparity between how the judge carefully articulated the gender stereotyping Dr. Bala faced and the inability to even notice race discrimination in the same stereotypes was jarring. Before dismissing Dr. Bala’s race claim for insufficient evidence, the judge detailed the specific, and “solely” sex, stereotypes seemingly at play, including an “aggressive personality or ‘flawed interpersonal skills,’” being “‘pushy’ and ‘aggressive,’” and a “‘rigid personality, micromanagement style, and difficulties interacting with people.’” Id., at *11.

      [201].     Bala v. Oregon Health & Sci. Univ., No. 3:18-CV-00850-YY, 2022 WL 17593169, at *1 (D. Or. Dec. 13, 2022).

      [202].     Id., at *1 n.1 (adopting the magistrate judge’s finding “[t]o the extent that Plaintiff’s discrimination claims allege a hostile work environment based on sex or a combination of race and sex”).

      [203].     Bala, 2022 WL 17834684, at *16. The magistrate judge specifically did not consider an intersectional hostile work environment claim “[b]ecause, as explained above, plaintiff has not produced sufficient evidence of disparate treatment based on the combination of her gender and race.” Id. The district court thereby relied on the magistrate judge’s faulty analysis to bifurcate Dr. Bala’s hostile work environment claim.

      [204].     349 F.3d 634, 652 n.3 (9th Cir. 2003) (Ferguson, J., dissenting).

      [205].     Id.

      [206].     Id. at 653.

      [207].     Id.

      [208].     Id.

      [209].     Lamb v. Kaiser Found. Health Plan Northwest, No. 3:14-CV-01508-MO, 2015 WL 6124002, at *4 (D. Or. Oct. 16, 2015).

      [210].     Id.

      [211].     Bala, 2022 WL 17834684, at *13.

      [212].     De La Rosa v. Hanger Prosthetics & Orthotics, No. CV-11-00306-PHX-DGCO, 2012 WL 3819459, at *7 n.5 (D. Ariz. Sept. 4, 2012).

      [213].     Id., at *3.

      [214].     Id.

      [215].     Williams was the first to name the aggregate approach and identity Lam as an example of it. See Beyond Sex-Plus, supra note 110, at 35.

      [216].     See Lam v. Univ. of Hawaiʻi, 40 F.3d 1551, 1559–62 (9th Cir. 1994).

      [217].     Anthony v. County of Sacramento, 898 F. Supp. 1435, 1445 (E.D. Cal. 1995).

      [218].     Id. at 1448.

      [219].     Id. at 1445–46.

      [220].     Id. at 1446.

[221].    No. C 07–00051 MHP., 2008 WL 2225671, at *5–6 (N.D. Cal. May 28, 2008).

      [222].     Id., at *9.

      [223].     Id., at *10.

      [224].     Volland v. Mobile Mini, Inc., No. CV-10-02745-PHX-GMS, 2012 WL 2898864, at *6 (D. Ariz. July 16, 2012).

      [225].     Id.

      [226].     Lam v. Univ. of Hawaiʻi, 40 F.3d 1551, 1561 (9th Cir. 1994).

      [227].     Id. at 1562.

      [228].     Jefferson v. Superior Ct., No. EDCV07700VAPJCRX, 2008 WL 11336497, at *5 (C.D. Cal. Oct. 16, 2008). Though the court in Jefferson was considering a hostile work environment claim in violation of the Equal Protection Clause, it is the “same prima facie case of harassment that [the plaintiff] would have to allege to state a claim for Title VII discrimination.” Id.

      [229].     Id., at *2, *6.

      [230].     Id.

      [231].     Id.

      [232].     See Nagar v. Found. Health Sys., 57 F. App’x 304 (9th Cir. 2003).

      [233].     Id. at 306.

      [234].     Id.

      [235].     Id.

      [236].     Id.

      [237].     Lam v. Univ. of Hawaiʻi, 40 F.3d 1551, 1562 n.18 (9th Cir. 1994).

      [238].     Burks v. Dep’t of Ariz. Econ. Sec., Emp. Tax Audit Off.--Mesa, 12 F. App’x 454, 458 (9th Cir. 2001).

      [239].     Id.

      [240].     Lam, 40 F.3d at 1562 n.18.

      [241].     Burks, 12 F. App’x at 457.

      [242].     Some courts, like in Luce v. Dalton, have determined this is the case. 166 F.R.D. 457, 461 (S.D. Cal. 1996), aff’d, 167 F.R.D. 88 (S.D. Cal. 1996). As of now, inviting the attention of the Supreme Court to the question of congressional intent in cross-antidiscrimination statute intersectionality does not seem like a winning strategy. If the Court does take up the issue, Pappoe advises, “[t]he Court should carefully craft a framework that both adequately conceives of Black women’s intersectional claims and addresses the logistical fears about which courts seem to be concerned. The framework should mirror aspects of the Lam decision by ensuring that courts refrain from using a mathematical approach in recognizing combined claims, and that they recognize the unique stereotypes and barriers that Black women have faced and continue to face in the workplace.” Pappoe, supra note 23, at 22.

      [243].     Bala v. Oregon Health & Sci. Univ., No. 3:18-CV-00850-YY, 2022 WL 17834684, at *7 (D. Or. Aug. 10, 2022).

      [244].     Id., at *11, *13.

      [245].     Rosette et al., supra note 39, at 5, 9.

      [246].     Vasquez v. County of Los Angeles, 349 F.3d 634, 653 (9th Cir. 2003) (Ferguson, J., dissenting).

      [247].     Id.

      [248].     Dr. Matt A. Barreto, Dr. Sylvia Manzano & Dr. Gary Segura, Nat’l Hispanic Media Coal., The Impact of Media Stereotypes on Opinions and Attitudes Towards Latinos 4 (2012).

      [249].     Vasquez, 349 F.3d at 653 (Ferguson, J., dissenting).

      [250].     Snider v. Greater Nevada, LLC, No. 307-CV-00583-RCJ-RAM, 2009 WL 3319802, at *2 (D. Nev. Oct. 14, 2009).

      [251].     Id., at *10.

      [252].     A recent study published by the American Sociological Association reported that “crossing the [W]hite-[B]lack racial boundary” by interracially dating “does activate negative stereotypes for women, which may have reputational costs, but mostly among older [W]hite male respondents.” René D. Flores, “A Little More Ghetto, a Little Less Cultured”: Are There Racial Stereotypes About Interracial Daters in the United States?, 6 Socio. Race & Ethnicity 269 (2020).

      [253].     See Snider, 2009 WL 3319802, at *11–12.

      [254].     Saberi v. BFS Retail & Com. Operations, No. C08-4232JL, 2010 WL 11590000, at *22 (N.D. Cal. Aug. 10, 2010).

      [255].     Id., at *25.

      [256].     Id., at *2.

      [257].     Id., at *23.

      [258].     Saberi was not Jewish himself; however, the court took the supervisor’s antisemitic comment as evidence of discrimination based on Saberi’s Middle Eastern national origin. Id., at *17; see Ana Swanson, What It Means to ‘Sound Gay’, Wash. Post (July 28, 2015) https://www.washingtonpost.com/news/wonk/wp/2015/07/28/what-it-means-to-sound-gay/ [https://perma.cc/E6TN-LJ63].

      [259].     Jefferson v. Superior Ct., No. EDCV07700VAPJCRX, 2008 WL 11336497, at *6 (C.D. Cal. Oct. 16, 2008).

      [260].     Misogynoir was first coined by Black feminist scholar Dr. Moya Bailey, who defined misogynoir as “anti-Black racist misogyny that Black women experience.” Moya Bailey, https://www.moyabailey.com/ [https://perma.cc/ESS5-BQAD].

      [261].     See Natural Hair Discrimination, NAACP Legal Def. Fund, https://www.naacpldf.org/natural-hair-discrimination/ [https://perma.cc/KBN2-LVZH].

      [262].     How Racialized Beauty Norms Motivate the Use of Toxic Beauty Products Among Women of Color, Columbia Univ. (Jan. 18, 2023), https://www.publichealth.columbia.edu/news/how-racialized-beauty-norms-motivate-use-toxic-beauty-products-among-women-color [https://perma.cc/3XPR-HTSS].

      [263].     Njenga v. San Mateo Cnty. Superintendent of Sch.’s, No. C-08-04019 EDL, 2010 WL 1261493, at *19 (N.D. Cal. Mar. 30, 2010).

      [264].     Id.

      [265].     Crenshaw, Intersection of Race and Sex, supra note 26, at 140.

      [266].     Eduardo Bonilla-Silva, The Structure of Racism in Color-Blind, “Post-Racial” America, 59 Am. Behav. Scientist 1358, 1364–68 (2015). Those who adhere to colorblindness believe America is postracial, racism is no longer a problem, and people are undeserving of remedies to racial discrimination. Id.

      [267].     Examining the Demographic Compositions of U.S. Circuit and District Courts, Ctr. for Am. Progress (Feb. 13, 2020), https://www.americanprogress.org/article/examining-demographic-compositions-u-s-circuit-district-courts/ [https://perma.cc/BG2G-WDBC]. In a recent study, the Center for American Progress calculated that 28.5 percent of sitting judges in the Ninth Circuit are people of color, 27 percent are women, 8 percent are women of color, and 1 percent identify as LGBTQ. Id. In contrast, people of color are roughly 40 percent of the U.S. general population, women in general are about 50 percent, women of color are about 20 percent, and LGBTQ people are about 4.5 percent. Id.

      [268].     Luce v. Dalton, 166 F.R.D. 457, 461 (S.D. Cal. 1996).

      [269].     Aging and the ADA, ADA Knowledge Translation Ctr. (2018), https://adata.org/sites/adata.org/files/files/Aging%20and%20the%20ADA%20final2018(1).pdf [https://perma.cc/2JWJ-3YQB].

      [270].     Joanne S. McLaughlin & David Neumark, Gendered Ageism and Disablism and Employment of Older Workers 1–2 (Nat’l Bureau of Econ. Rsch., Working Paper No. 30355, 2022).

      [271].     Lamb v. Kaiser Found. Health Plan Northwest, No. 3:14-CV-01508-MO, 2015 WL 6124002, at *4 (D. Or. Oct. 16, 2015).

      [272].     McLaughlin & Neumark, supra note 270, at 1–2.

      [273].     Adams v. Home Depot, No. 05-CV-1798 ST, 2007 WL 4565163, at *20–21 (D. Or. Dec. 19, 2007).

      [274].     Id., at *20.

      [275].     See discussion supra Part IV.D.vi on intersectionality as magnification.

      [276].     Luce v. Dalton, 166 F.R.D. 457, 461 (S.D. Cal. 1996).

      [277].     McKinney v. City of Hawthorne, No. CV08-07-GW(EX), 2008 WL 11338236, at *2–4 (C.D. Cal. Nov. 17, 2008).

      [278].     Id., at *3.

      [279].     See McLaughlin & Neumark, supra note 270, at 6 (finding “implicit bias may be worse for older women because physical appearance matters more for women, and age is perceived to detract more from physical appearance of women than of men”).

      [280].     Presuming incompetence is a manifestation of race, sex, and age discrimination independently and may be magnified through the presence of all three intersectional identities.

      [281].     See Mayeri, supra note 23, at 718–21. Mayeri describes how “[o]ver the past two decades, historians have uncovered the critical role of intersectionality—and of women of color—in . . . the enactment of Title VII’s sex discrimination amendment.” Id. at 714. In particular, Pauli Murray, a renowned civil rights lawyer, who was herself was Black and queer, wrote and circulated a very “influential memorandum” to the Senate that “critically reframed the debate” away from “pitting” White women against Black people, and instead, “made the fate of ‘Negro women’ the ultimate barometer of the civil right bill’s success.” Id. at 719.

      [282].     EEOC Compliance Manual, Section 15: Race and Color Discrimination, EEOC (Apr. 19, 2006), https://www.eeoc.gov/laws/guidance/section-15-race-and-color-discrimination [https://perma.cc/96Q6-A5A7]. The EEOC also quotes Lam in affirming intersectional claims: “Likewise, Title VII protects Asian American women from discrimination based on stereotypes and assumptions about them “even in the absence of discrimination against Asian American men or White women.” Id.

      [283].     Melissa Hart, Skepticism and Expertise: The Supreme Court and the EEOC, 74 Fordham L. Rev. 1937 (2006).

      [284].     Id. at 1945. Under Chevron, courts were instructed to defer to reasonable agency interpretations of their governing statute amidst no explicit command from Congress. Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (1984). Chevron was the more deferential standard accorded to agency interpretations. Hart, supra note 283, at 1941.

      [285].     Hart, supra note 283, at 1945. The Skidmore standard considers a number of factors, like the thoroughness of an agency’s consideration, the validity of an agency’s reasoning, an agency’s consistency with earlier and later pronouncements, factors giving the agency the power to persuade or control. Skidmore v. Swift & Co., 323 U.S. 134 (1944). Skidmore is considered the “weaker deference” standard. Hart, supra note 283, at 1941.

      [286].     Hart, supra note 283, at 1937.

      [287].     Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986).

      [288].     Faragher v. City of Boca Raton, 524 U.S. 775, 786–93 (1998).

      [289].     See Esposito v. Maricopa Cnty. Cmty. Coll. Dist., No. CV-15-00767-PHX-NVW, 2016 WL 7373339, at *5 (D. Ariz. 2016).

      [290].     Id., at *2, *5.

      [291].     Id., at *5.

      [292].     De La Rosa v. Hanger Prosthetics & Orthotics, No. CV–11–00306–PHX–DGC, 2012 WL 3819459, at *7 n.5 (D. Ariz. Sept. 4, 2012).

      [293].     Salem v. Heritage Square Inc., No. C 06-04691 WHA, 2007 WL 2555513, at *9 (N.D. Cal. Sept. 4, 2007).

      [294].     See Anthony v. County of Sacramento, 898 F. Supp. 1435, 1446 n.13 (holding that “although Lam itself was a disparate treatment case, the same analysis applies to hostile environment claims”); Njenga v. San Mateo Cnty. Superintendent of Sch.’s, No. C–08–04019 EDL, 2010 WL 1261493, at *19 (N.D. Cal. Mar. 30, 2010); Jefferson v. Superior Ct., EDCV 07-700-VAP (JCRx), 2008 WL 11336497, at *6 (C.D. Cal. Oct. 16, 2008); Randall v. United Parcel Serv., No. 3:17-cv-00807-HZ, 2018 WL 4955197, at *12 (D. Or. Oct. 12, 2018).