Originally published here.

To be intersectional is to be disruptive. The word “intersection” derives from the Latin intersecare, meaning to “cut asunder.”1People who identify with an intersectionalidentity break apart our most basic ways of understanding the human experience and demand to be understood as whole individuals whose experiences consist of more than the sum of their parts. According to Professor Kimberelé Crenshaw’s description of intersectionality, some individuals are treated unequally because they are positioned directly at the crossroads of different human experiences. If you understand a Black woman only as you understand a Black person or only as you understand a woman, then you have failed to understand the Black woman.

Because “[d]iscrimination, like traffic through an intersection, may flow in one direction, and it may flow in another,” the person standing in the intersection may be singularly harmed by discrimination coming from one of many directions or they may be harmed precisely because they exist where these varying forms of discrimination converge.3 Because she exists in the intersection, this forces on others the choice to stop and confront her reality and experience head-on or to instead barrel through or around her.

Crenshaw’s intersectionality analysis calls for the former, arguing that realizing the promise of antidiscrimination law requires the “inclusion of marginalized groups for whom it can be said: ‘[w]hen they enter, we all enter.’ ”4 In the nearly three decades since Crenshaw first presented an intersectionality framework highlighting the intersection of race and sex, there has been an increasing—though still limited—recognition in our public discourse of other important intersections at which people may experience discrimination, including the intersection of race and disability.

From discussions on the identification of students of color within the context of special education to the interactions of police officers with people of color who have mental health disabilities, public awareness of the intersection of race and disability has matured over time.6 We now better appreciate that people of color with disabilities can experience complex forms of discrimination distinct from those experienced by either people of color or people with disabilities more broadly.

Furthermore, the work of Crenshaw and others prompted extensive legal scholarship evaluating the complexities of intersectional discrimination claims.7 However, while courts recognize the validity of intersectional discrimination claims, they have been slow to embrace intersectionality analysis.8 The case law has yet to clearly articulate how a plaintiff experiencing discrimination due to their race and disability together can redress the harms that come from standing in this specific intersection.

This lack of guidance leaves such plaintiffs with an uncharted path forward, as they potentially face two different legal causation standards—the “motivating factor” standard, which applies to racial discrimination claims, and the “but-for” standard, which many courts apply to disability discrimination claims.

This Article makes the case for why intersectional discrimination claims based on race and disability are important and how courts and litigants should go about considering such claims in the context of employment discrimination. The intersectionality framework teaches that people of color with disabilities are sometimes subject to discrimination that mirrors the discrimination experienced by people of color without disabilities and sometimes mirrors the discrimination experienced by White people with disabilities.

And, at other times, they experience discrimination that mirrors neither, because it is the unique product of their race and disability together. While proving intersectional discrimination claims may be challenging given the Supreme Court’s jurisprudence on the applicable causation standards, plaintiffs held to the more demanding but-for standard can prove their claim by showing that they would not have been treated unfavorably absent the specific nexus of their race and disability.

Litigating such claims is a worthwhile endeavor because limiting a plaintiff to asserting that they were discriminated against either because of race or because of disability, but not because of both operating together, erases an important perspective on the complex nature of discrimination and threatens to lead to shallow or misinformed legal remedies. While this Article focuses in particular on the context of employment discrimination, extending this analysis to other areas of the law where race and disability intersect will be an important next step for advancing antidiscrimination law.

Finally, it is important to note that the above analysis of how to robustly protect the civil rights of the individual who experiences intersectional discrimination because they exist at the bottom of Kimberelé Crenshaw’s basement is not simply an exercise in altruism. Instead, as Crenshaw and others before her have counseled, it is a recognition of the fact that the civil rights of all Americans are yoked together, and thus we are all better served by the vigorous enforcement of antidiscrimination laws.  Or, as Crenshaw puts it: “When they enter, we all enter.”

You can read the complete article here.