IDENTITY

A. Differences Among Women (& Men) & the Problem of Intersectionality
Devon Carbado, UCLA

A. Differences Among Women (& Men) & the Problem of Intersectionality
Mitu Gulati, Duke

A. Differences Among Women (& Men) & the Problem of Intersectionality
The Fifth Black Woman
80 person firm, 20 partners (2 black men, 3 white women); 60 associates (15 women: 2 black, 2 Asian American, 1 Latina, 10 white);(45 men: 2 black, 2 Latino, 3 Asian American, 38 white)
6 recommended for partner, 4 voted to accept
(3 men {W, Asian, black}; 1 white woman)

The Fifth Black Woman
Mary, black woman, sues under Title VII
• Disparate treatment, race, sex, race + sex
(combined, “compound”); no direct evidence of prohibited animus, only circumstantial
• Tr. Ct grants firm’s summary jdgmt motion
– 2 black partners participated in vote, neither of whom suggested discriminatory motive; likewise women partners participated & none suggested bad motive
• Compound claim not cognizable, per T7 legis. history. Rogers v. American Airlines, (‘81). See
Caldwell, A Hair Piece, p. 575 (Duke ‘91)

– Problem of essentialism; Mary’s sex can’t be isolated from her race & vice versa.
• Change hypo; predominately white elite corporate firm (5 black women up for partnership, only Mary rejected) See pp. 572-73
– Was she similarly situated to those who made partner, so no discrimination?
– Discrimination based on identity performance? (hair, dress, internal behavior re firm culture, social identity, education, marital status, residence, personal & professional affiliations

Q: What is relationship between identity performance & workplace discrimination?
Actionable under Title VII?
Working Identity: employee who’s aware that employer’s identity-based assumptions about her at odds w/ institutional norms & criteria incentivized to develop strategy to comfort supervisors/colleagues about negative workplace standing.
“Comfort Strategies” Carbado & Gulati
“Covering to downplay identity” Kenji Yoshino, n. 10
Examples of such strategies? Costs to employee?
Impact on Workplace?

Rogers v. American Airlines, (S.D.N.Y.‘81)(desk agent fired for violating race-neutral policy policy prohibiting braided hair, “corn rows”.
Paulette Caldwell, A Hair Piece, (Duke L. Rev. ‘91) excerpt p. 575: worldwide, black women braid their hair; as black American as sweet potato pie. Cicely Tyson wore as political act to
Academy Awards.

Cisely Tyson & Maya Angelou

• Part of race & cultural politics in mid-to-late ‘70s
– Era when Richmond & Chicago had 1 st black mayors, gave rise to Croson v. Richmond, Adarand
• Quake v. American Airlines (Ill. S.Ct. stated c/a for precontractual promissory estoppel liability. Backstory Minority
Business Enterprise set-aside for O’hare expansion; J.
Jackson & Operation Push brokered deal)
• Reiterate: strange politics within affiliation-based communities; see throughout Ch. 6 readings and texts’ authors choices of who to cite (& not cite)

• Concept of intersectionality (or multidimensionality) widely accepted among
“outsider” communities; impossible to slice & dice oneself into different component of identity.
Francisco Valdes, noted queer theorist, fn. 8.
• That said, Linda Krieger: creates unmanageable complexity for law to not use some categories, everything sui generis. Chaos.

Long history: scientific, medical, psychiatric development. Gender Identity Disorder (GID):DSM-
IV Disorder. Testimony admissible under Daubert standard.
Schroer v. Billington (D. D.C. 2008), pp. 583-87
David hired as terrorism specialist for CRS, extraordinary credentials, contacts & security clearance. Pre-lunch, disclosed transitioning to
Diane. Offer rescinded. Battle of experts on “sex” v. “sexuality”

Schroer v. Billington (D. D.C. 2008), pp. 583-87
Judge James Robertson: Title VII violation; all asserted concerns pretextual.
*Hopkins v. Price Waterhouse on stereotype discrimination; supercedes cases find transexuality unprotected (?).
*Act violated b/c Diane’s appearance &
background inconsistent w/ D’s stereotypes about
how men & women should act & appear, & in
response to her decision to transition legally,
culturally and physically from male to female.
NOW MAJORITY VIEW.

pp. 590-91 http://soundcloud.com/snapjudgment/100-girl

http://www.nytimes.com/2008/04/27/fashion/27trans.html?_r=1
By Tina Kelley, New York Times, April 27, 2008.
Fran and Donald, now Denise, before their 1980 marriage.
Fran and Denise Brunner had children when Denise, center left, was Donald.

• What are distinctive burdens faced by men in a gendered society?
• How do burdens differ
– By race, ethnicity? (African-American, Asian, Hispanic,
Caucasian)
– Within those groups by sexuality?
– Within those groups by socio-economic status?
• Kimmel: masculinity as social construct, varies by class, race, ethnicity, sexuality, age, region of country …. And changes over course of life.
Hmmm. . .

Blair Underwood playing Stanley, Broadway revival of Streetcar Named Desire

pp. 595-97
• Issues of masculinity invisible in traditional educational curriculum … as contrasted with lives of women authors, scientists.
– Clicker: Is that still true? 1 yes, 2 no, 3 depends on course, 4 depends on professor
Centrality of gender in men’s lives perpetuates gender inequalities. Agree? Criticism?

http://www.youtube.com/watch?v=DfV31Xo4Rs
4&feature=related
Bly, Iron Man (1990): men should retreat from world of women to temporary male sanctuaries, recapture “deep” or “wild” masculinity that modern society renders dormant. n. 1 p. 601 ¶2

n. 1 p. 601 ¶3
• Hyper-masculine behavior: response to men’s feeling of being downsized economically & emotionally, by rise in women’s rights & erosion of traditional male jobs.
– Clicker: agree, disagree?
– If so, what can counter that sense of
vulnerability? Men’s movement, per Bly? Create safe space at home, communities that care.

601-02
Floyd Weatherspoon: African-American men suffer from combination of race & gender discrimination in both employment & criminal justice system.
Agree?
Devon Carbado “Heterosexual Black men occupy a privileged victim status in antiracist discourse.” b/c not similar focus on Black women, when alleged violence v. her, community subordinates concern for her b/c criminal justice system suspect. Agree?

Clicker questions
1. At the time you enrolled in this class, did you consider yourself a “feminist” 1) y, 2) n, 3) ambivalent, 4) didn’t know what it entailed.
2. Do you now consider yourself a feminist? 1) y, 2) n, 3) still ambivalent

3. If yes to Q. 2, to which theory are most drawn?
1) formal equality, 2d wave (RB Ginsburg, etc.)
2) dominance/antisubordination (MacKinnon)
3) cultural, including difference, relational, ethic of care (West, Becker, Abrams, Williams, Schultz)
4) intersectional/multicultural (Caldwell,
Crenshaw, Matsuda/Lawrence, Grillo)
5) queer theory or “sex positive” (Franke,
Carbado, Case, Halley)

http://www.thirdwavefoundation.org/about-us/
Multi-cultural, multi-racial, multi-issue foundation; ‘03 – present focus on reproductive rights.
Anna: need open to 1 st page, show timeline at bottom.

• Focus on empowerment (economic, political, social & personal)
• Many from Generation X demographic (born roughly between 1966 – 1976) or Generation Y
(born roughly between 1977-1997). Some are the children of Baby Boomers who participated in the
Women’s Liberation Movement of the 1960’s and
1970’s.

Characteristics:
– individualistic
– celebrates women’s multiple & sometimes contradictory identities
– encouraged to build their own identities from the available buffet, don’t worry if the items on their plate are not served together traditionally.

http://www.youtube.com/watch?v=cCQIougLsg

pp. 616-22
• Essential elements of any feminist theory
– Distinguish between M/F
– Posit some subordination in which M>F. “carries a brief for F”
• Many other options to pick from for focus
• When some may want to “Take a Break from
Feminism”
• Women don’t own gender. Kendell Thomas.
• Bad faith (~ PA. RR) In areas feminism rules & wants to do so.

pp. 616-22
• Power masquerading as servitude … feminism imposes costs on itself in attacking other feminists
• Moral perfectionism & magic realism. Strictness of effort to be morally immaculate; totalaritarian.
• Constituting women, heterosexuality & women’s suffering. Harm done tying feminism to M/F … and to heterosexual. May help produce subordination as social & psychic event.