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ix


Front Matter

Malveaux, Suzette

University of Colorado Law School 
Colorado Law Scholarly Commons 
Publications Colorado Law Faculty Scholarship 
2023 
The Future of Intersectionality in Employment Law 
Suzette Malveaux 
University of Colorado Law School 
Follow this and additional works at: https://scholar.law.colorado.edu/faculty-articles 
 Part of the Civil Rights and Discrimination Commons, Labor and Employment Law Commons, Law and 
Gender Commons, and the Law and Race Commons 
Citation Information 
Suzette Malveaux, The Future of Intersectionality in Employment Law, JOTWELL (September 11, 2023) 
(reviewing Jamillah Bowman Williams, Beyond Sex-Plus: Acknowledging Black Women in Employment 
Law and Policy, __ Employee Rts. & Emp. Pol. J. __ (forthcoming), available at Geo. L. Fac. Publ'n and 
Other Works 2407(2021)), https://courtslaw.jotwell.com/the-future-of-intersectionality-in-employment-
law/. 
Copyright Statement 
Copyright protected. Use of materials from this collection beyond the exceptions provided for in the Fair Use and 
Educational Use clauses of the U.S. Copyright Law may violate federal law. Permission to publish or reproduce is 
required. 
 
This Article is brought to you for free and open access by the Colorado Law Faculty Scholarship at Colorado Law 
Scholarly Commons. It has been accepted for inclusion in Publications by an authorized administrator of Colorado 
Law Scholarly Commons. For more information, please contact lauren.seney@colorado.edu. 
Courts Law
The Journal of Things We Like (Lots)
https://courtslaw.jotwell.com
The Future of Intersectionality in Employment Law
Author : Suzette M. Malveaux
Date : September 11, 2023
Jamillah Bowman Williams, Beyond Sex-Plus: Acknowledging Black Women in Employment Law and
Policy, __ Employee Rts. & Emp. Pol. J. __ (forthcoming), available at Geo. L. Fac. Publ'n and Other Works
2407(2021).
Recent social justice movements—such as #MeToo and Black Lives Matter—have pushed mainstream
American society to reckon with the ubiquity and persistence of systemic sex-based and racial
inequities. At the heart of the firestorm are Black women, whose identity at the intersection of sex and
race often exposes them to pervasive, but also unique employment discrimination and sexual
harassment. Jamillah Bowman Williams’s Beyond Sex-Plus: Acknowledging Black Women in Employment
Law and Policy stands out as an exceptional examination of the how courts deal with such
“intersectional” claims.
“Intersectionality,” famously coined by Professor Kimberlé Crenshaw over three decades ago,
recognizes that Black women may experience discrimination distinct from how white women or Black
men experience discrimination. This concept is not new—the Fifth Circuit recognized it as early as 1980.
The Equal Employment Opportunity Commission (EEOC)—the agency tasked with enforcement of the
Title VII of the Civil Rights Act of 1964—explicitly recognizes Title VII’s coverage of intersectional claims.
Black women are overrepresented among low-income, vulnerable workers, and subjected to pernicious
stereotypes rooted in chattel slavery.
This “double jeopardy” requires courts to move beyond forcing Black women to parse out their identities
and pigeonhole their discriminatory experiences into conduct based solely on “race” or “sex.” Williams
urges judges and lawmakers to go deeper, to entertain a more complex and nuanced understanding of
the law, and to align Black women’s lived experiences with Title VII’s broad remedial purpose by
recognizing intersectional claims. Not only would Black women fare better at summary judgment and in
case outcome (whose failure rate is significantly higher), but the law would be inclusive of their reality.
For example, in the context of work harassment, a plaintiff may experience a hostile work environment
based on the combination of their sex and their race but fail to prove either one independently. Title VII
requires that workplace incidents be sufficiently severe or pervasive to constitute harassment, but if
courts artificially disaggregate such incidents into “race” or “sex,” they dilute, potentially fatally, the
force of the discriminatory conduct. Appreciating the totality of the misconduct and the overlapping
nature of the harassment would more faithfully protect everyone in the workplace.
Williams’s article breaks new ground by identifying and critiquing the primary approaches used by the
federal appellate courts when analyzing intersectional claims.
Some circuits (Fourth and Eighth) insist that Black women dissect their experiences and identities,
ascribing either “sex” or “race” as the basis for discrimination. These appellate courts read the text and
purpose of Title VII in a cramped way that disallows claims combining “sex” and “race.” They worry that
intersectional claims will afford Black women a “super-remedy” and “special” treatment unavailable to
fellow workers. This narrow interpretation ironically deprives those multiply-marginalized of Title VII’s
protection, contrary to the statute’s broad remedial purpose and spirit.
                                                1 / 3
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The Journal of Things We Like (Lots)
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Other circuits (Second, Third, and Tenth) analyze intersectional claims under a “sex-plus” framework. A
plaintiff who suffers discrimination on the basis of sex plus another trait (not protected under Title VII)
would be shielded by the statute. The classic example is Phillips v. Martin Marietta Corp., allowing
women with preschool-aged children to bring a sex-discrimination hiring case against the employer
even though the company hired other women; this constituted sex discrimination because, unlike
women, men with preschool-aged children were hired. The statute covered the combination of two traits
(sex plus having a preschool-aged child). Although only a subset of women bore the brunt of the
employer’s exclusion, they could challenge discrimination at the intersection of sex and another factor.
Courts have expanded the “sex-plus” rationale to protect older women from sex-plus-age
discrimination, combining Title VII and a plus trait from another statute, the Age Discrimination in
Employment Act (ADEA). Given this flexibility, Williams persuasively argues that a court should easily be
able to recognize an intersectional sex-plus-race claim—the combination of two traits already protected
under Title VII.
Williams’s endorsement of the sex-plus approach, however, is tempered by its limitations. She faults the
approach for its overdependence on comparators; elevation over a race-plus framework; and
preferencing sex over other traits as the basis for statutory protection. Most notably, the sex-plus
framework requires Black women to dissect their identities and lead with sex as the primary trait, with
race secondary in the analysis. Centralizing sex artificially fractures the plaintiff’s experience and
unnecessarily subordinates the racial dimension.
A third and more preferable method from the circuit courts (Fifth and Eleventh) recognizes the unique
experience of race and sex discrimination combined by identifying Black women as a protected class.
Williams praises this as a step forward but worries that these courts still subordinate the plaintiff’s race
claim.
Two circuits (Sixth and Ninth) adopt the best approach—a totality or aggregate one. The court does not
force the plaintiff to sort her experiences into boxes labeled “race,” “sex,” “age,” “religion,” “disability,”
or any other protected trait. Instead, the court analyzes her experience as a whole to discern illegal
discrimination.
Finally, two circuits (First and D.C.) have been inconsistent and undecided when addressing
intersectional claims. The U.S. District Court for the District of Columbia expressed concern over
plaintiffs turning employment discrimination claims into a “many-headed hydra” comprised of countless
permutations based on the various groups to which they belong.
After exploring the current state of the union on the interpretation of intersectional claims, Williams
makes another ground-breakin contribution. Looking ahead, she examines a number of significant
trends that foreshadow the future of intersectionality in employment law. Most notably, Williams
contends that Bostock v. Clayton County supports intersectional claims. Authored by Justice Neil
Gorsuch and joined by Chief Justice Roberts, Bostock joins conservative and liberal justices in a
promising majority opinion. Williams argues that Bostock helps Black women in three ways: 1)
inextricably linking discrimination on the basis of sexual orientation and transgender status to sex; 2)
reinforcing that discrimination “because of sex” includes mixed motivations; and 3) noting that
individuals may be subject to discrimination even if their whole group is not. Bostock gives space for
intersectional claims, discrimination based on multiple factors, and discrimination against a subset of a
protected class. Indeed, the Tenth Circuit relied on Bostock in recognizing intersectional claims by Black
women through the sex-plus framework.
Williams also notes how state legislators, while leading the way in enacting protections against sexual
harassment, must do the same for harassment based on race and other central identities. Indeed, the
                                                2 / 3
Courts Law
The Journal of Things We Like (Lots)
https://courtslaw.jotwell.com
law should not stop there, but should take a more unified approach that does not silo experiences into
claims of discrimination, harassment, or retaliation.
Finally, Williams promotes the development of a “reasonable Black woman” standard for sexual
harassment claims brought by Black women. This standard more closely mirrors plaintiffs’ unique
experiences and perspectives, providing important context, nuance, and understanding. Such an
approach would more fully advance the EEOC’s victim-centric guidance.
Williams ends her article with prescriptions based on various federal and state legislative reforms,
pushing Congress, the EEOC, and the courts to more fully embrace the experience of Black women’s
lives through the recognition of intersectional claims. She challenges judges, lawyers, and law students
to see Black women not as the sum of our fractured identities, but to see us as whole persons. And in
doing so to see our humanity.
Cite as: Suzette M. Malveaux, The Future of Intersectionality in Employment Law, JOTWELL (September
11, 2023) (reviewing Jamillah Bowman Williams, Beyond Sex-Plus: Acknowledging Black Women in
Employment Law and Policy, __ Employee Rts. & Emp. Pol. J. __ (forthcoming), available at Geo. L. Fac.
Publ'n and Other Works 2407(2021)), https://courtslaw.jotwell.com/the-future-of-intersectionality-in-
employment-law/.
Powered by TCPDF (www.tcpdf.org)
                                                3 / 3


The Future of Intersectionality in Employment Law

Parness, Jeffrey A.

Civil Procedure and the New Bar Exam

Buckner Inniss, Lolita

University of Colorado Law Review 
Volume 94 
Issue 2 30th Annual Ira C. Rothgerber Jr. 
Conference: Looking Back to Move Forward: 
Exploring the Legacy of U.S. Slavery 
Article 4 
Spring 2023 
Foreword: Expanding the Boundaries of Knowledge About Slavery 
and Its Legacy 
Lolita Buckner Inniss 
University of Colorado Law School, linniss@colorado.edu 
Follow this and additional works at: https://scholar.law.colorado.edu/lawreview 
 Part of the Civil Rights and Discrimination Commons, Constitutional Law Commons, and the United 
States History Commons 
Recommended Citation 
Lolita Buckner Inniss, Foreword: Expanding the Boundaries of Knowledge About Slavery and Its Legacy, 
94 U. COLO. L. REV. 381 (2023). 
Available at: https://scholar.law.colorado.edu/lawreview/vol94/iss2/4 
This Article is brought to you for free and open access by Colorado Law Scholarly Commons. It has been accepted 
for inclusion in University of Colorado Law Review by an authorized editor of Colorado Law Scholarly Commons. 
For more information, please contact lauren.seney@colorado.edu. 
Foreword: Expanding the Boundaries of Knowledge About Slavery and Its Legacy 
Cover Page Footnote 
Please see the Content Warning for volume 94, issue 2 from the Editors of the University of Colorado Law 
Review: https://scholar.law.colorado.edu/lawreview/vol94/iss2/. 
This article is available in University of Colorado Law Review: https://scholar.law.colorado.edu/lawreview/vol94/
iss2/4 
 
 
FOREWORD: EXPANDING THE 
BOUNDARIES OF KNOWLEDGE ABOUT 
SLAVERY AND ITS LEGACY 
LOLITA BUCKNER INNISS* 
I taught Property Law for over twenty years before 
becoming the Dean of the University of Colorado Law School in 
2021. In those years I covered the legal, economic, and social 
aspects of property, both historic and modern, and along the way 
addressed property in many of its iterations and forms. In my 
discussions of property law, I not only interrogated the 
traditional, typically descriptive aspects of property law but also 
argued for critical, sometimes prescriptive stances that looked 
beyond standard property law formulations. In these 
discussions, I often explored both metaphoric and literal spatial 
dynamics, an especially apt approach given that both property 
itself and the laws that govern it are frequently about drawing 
lines and setting boundaries.1 Among the cases I taught were 
those exploring the meaning and nature of U.S. slavery. During 
these years I fielded a lot of questions on property law in much 
of its glorious diversity. But one of the queries that came up with 
a startling degree of frequency, at more than one of the law 
schools where I taught over the years, was: “Why do we have to 
learn about slavery? This is a property law class.” 
In my early years as a law professor, I was inclined to 
assume that this question grew from a misapprehension of the 
broad nature of property law. Maybe, I thought, the students 
who posed this question were under the assumption that 
property law was starkly circumscribed and had to do only with 
 
* Dean and Provost’s Professor of Law, University of Colorado Law School; JD, 
University of California, Los Angeles; LLM, PhD, Osgoode Hall Law School, York 
University. Dean Inniss can be contacted at linniss@colorado.edu. 
1. See generally Lolita Buckner Inniss, From Space-Off to Represented Space: 
A Review of Reimagining Equality: Stories of Gender, Race, and Finding Home by 
Anita Hill, 28 BERKELEY J. GENDER L. & JUST. 138 (2013) (discussing the literal 
and figurative aspects of space and place in the context of Black women’s searches 
for “home”). In recent decades there has been a decidedly “spatial turn” in a wide 
array of disciplinary areas, property law not least among them. Lolita Buckner 
Inniss, Roxanne Shante’s “Independent Woman”: Making Space for Women in Hip 
Hop, in FIGHT THE POWER: LAW AND POLICY THROUGH HIP-HOP SONGS 175, 176 
(Gregory S. Parks & Frank Rudy Cooper eds., 2022). 
382 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 94 
 
real property, that is, with land and the things attached to it. It 
didn’t take very long before I realized that this question did not 
grow from a narrow understanding of property law’s boundaries. 
These students, it turned out, perfectly well understood that 
property law also included personal property—things other than 
land and its attachments. Moreover, they also understood that 
some people, mostly Black people, had been deemed property for 
much of the history of the United States. What this question 
betrayed was not racial innocence or ignorance of the bounds of 
property law but rather an unwillingness to include the topic of 
slavery and its legacy within the bounds of property law. 
Resistance to painful or difficult aspects of the past is not 
unusual. Though Shakespeare wrote that “what’s past is 
prologue,” there are two ways of understanding that expression.2 
One way is to see the past as merely a milestone on the road to 
better places, a blur briefly sighted along a journey that is soon 
left behind and forgotten. All too often slavery, for some, is one 
of those blurs. However, another way of interpreting past as 
prologue is to recognize that we must continually look back and 
sharpen our understanding of and our focus upon what has come 
before to have any possibility of going forward in a sure and true 
direction. It is this latter meaning that guides my own work and 
the work of the scholars writing in this Symposium Issue. 
My attention to the history and legacy of the enslavement of 
people of African ancestry has long been a part of my teaching 
and my research. My most in-depth foray into this topic to date 
is my book, The Princeton Fugitive Slave: The Trials of James 
Collins Johnson.3 In the book, I tell the story of a man, James 
Collins Johnson, who fled Maryland enslavement in 1839, 
arrived in Princeton, New Jersey, and obtained menial 
employment at what is now Princeton University. He worked 
without major incident until 1843, when he was recognized as a 
fugitive, arrested, tried, found to have escaped,4 and slated for 
 
2. WILLIAM SHAKESPEARE, THE TEMPEST act 1, sc. 2, l. 287 (“We all were sea-
swallow’d, though some cast again, / And by that destiny to perform an act / Whereof 
what’s past is prologue, what to come / In yours and my discharge.”). 
3. LOLITA BUCKNER INNISS, THE PRINCETON FUGITIVE SLAVE: THE TRIALS OF 
JAMES COLLINS JOHNSON (2019). 
4. Note that the word here is not “convicted.” Enslaved people were subject to 
return to slavery if apprehended and proven to be the escapee sought. Fugitive 
enslaved people were considered more in the nature of property to be returned than 
as people to be held accountable for violations of law. As a result of this “non-people” 
status, enslaved people (and even free Black people in many jurisdictions) were not 
2023] FOREWORD: EXPANDING BOUNDARIES 383 
 
return to slavery. He was saved when a local, wealthy White 
woman paid his slave price. He then lived on in Princeton, 
perhaps not happily, but ever after in the six decades that 
followed. My book is an intensive look back at the life of a Black 
man who was a small actor but whose story represented many 
larger concepts in law and society. Looking at the context of 
higher education, this book queries how Johnson’s story was 
remembered and told, including the not-so-subtle blurring of the 
boundaries between fact and law, freedom and slavery. 
The authors writing in this symposium, in like fashion, 
address how the history and legacy of slavery have often been 
relegated to narrow spaces and closely limited boundaries, 
either misremembered, or altogether unremembered. These 
essays, articles, and transcripts also, in their various 
approaches, query the limits and boundaries erected in 
considering the possibilities for redress of slavery’s harms. Like 
my work in The Princeton Fugitive Slave, author Christopher L. 
Mathis also considers slavery’s legacy in higher education.5 
Professor Mathis, however, takes a new approach to the topic: 
how higher education redress statutes attempt to create 
mechanisms for investigation or remediations of the harms of 
slavery. He asserts that such statutes are often far too narrowly 
drawn and therefore fail to include some groups of Black people. 
Gabriel J. Chin, in his essay “Slave Law, Race Law,” reminds 
readers how baneful slavery-era law and law enforcement 
practices are paralleled in modern law and police practices.6 
Professor Chin also asserts that historic legal norms that limited 
Black rights were not only aimed at enslaved Black people, but 
also at free Black people and other non-White people. Professor 
Chin notes that U.S. racism was pervasive and, while it was 
clearly expressed in the context of laws concerning the 
enslavement of people of African descent, that racism exceeded 
the boundaries of slavery. 
In a discussion also touching upon the legacy of slavery in 
police practices, F. Michael Higginbotham writes about the 
relevance of slavery in the contemporary law enforcement 
 
permitted to testify in court, even on their own behalf. The prohibitions on “negro 
testimony” were widespread. See INNISS, supra note 3, at 52. 
5. Christopher L. Mathis, Higher Education Redress Statutes: A Preliminary 
Analysis of States’ Reparations in Higher Education, 94 U. COLO. L. REV. 387 
(2023). 
6. Gabriel J. Chin, Slave Law, Race Law, 94 U. COLO. L. REV. 551 (2023). 
384 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 94 
 
practice of racial profiling.7 Professor Higginbotham asserts that 
the practice of racial profiling, where law enforcement officials 
target individuals for suspicion of crime based on the 
individual’s characteristics such as race, is based in a historical 
presumption of slave status. There has long been a conflation of 
race and crime, especially in the context of Black people and 
Black communities.8 Though racial profiling is too often 
emblematic of modern policing, some of its legacy hearkens back 
to regulatory practices in the antebellum era that were intended 
to control both enslaved and free Black people. Such regulations, 
Professor Higginbotham notes in discussing the 1806 case of 
Hudgins v. Wright, policed not only behavior but the boundaries 
of Whiteness itself.9 
Three other symposium authors, Eric J. Miller, Adjoa A. 
Aiyetoro, and Rev. Dr. Robert Turner, take up the topic of the 
Tulsa Race Massacre and call for reparations, both within the 
context of the harms caused by the Massacre and more broadly. 
Discussions of Black reparations have occurred since before the 
general emancipation of Black people, and even with the potent 
and compelling rationales for reparations, it remains a topic that 
is fraught with unease and conflict.10 Professor Miller writes 
that crafting reparations for anti-Black oppression requires 
creating a very particular kind of space: one that “loves 
Blackness.”11 This is an approach that requires more than mere 
tolerance or even respect. Professor Aiyetoro argues for another 
type of spatial relation related to racism, one that reframes the 
description of White on Black violence.12 The essay centers a 
discussion of the Massacre and how the Massacre was 
 
7. F. Michael Higginbotham, Shades of Justice: Racial Profiling Then and 
Now, 94 U. COLO. L. REV. 533 (2023).  
8. See, e.g., Lolita Buckner Inniss, A Domestic Right of Return?: Race, Rights, 
and Residency in New Orleans in the Aftermath of Hurricane Katrina, 27 B.C. 
THIRD WORLD L.J. 325, 350–51 (2007) (discussing the relationship between race, 
crime, and urban residency). 
9. In Hudgins v. Wright, 11 Va. 134, 139–40 (1806), the court considered 
whether claimants were to be deemed White based upon their appearance. 
10. Much of this discussion has even occurred in the context of legal claims in 
courts seeking reparations. Lolita Buckner Inniss, A Critical Legal Rhetoric 
Approach to In Re African-American Slave Descendants Litigation, 24 ST. JOHN’S 
J. LEGAL COMMENT. 649, 653–54 (2010). 
11. Eric J. Miller, Loving Reparations, 94 U. COLO. L. REV. 395 (2023). 
12. Adjoa A. Aiyetoro, Social Construction of Race Undergirds Racism by 
Providing Undue Advantages to White People, Disadvantaging Black People and 
Other People of Color, and Violating the Human Rights of All People of Color, 94 U. 
COLO. L. REV. 415 (2023). 
2023] FOREWORD: EXPANDING BOUNDARIES 385 
 
emblematic of how White supremacy both created the 
segregated spaces to which Black people were relegated and 
thereafter often destroyed those spaces when they thrived 
against all odds. As Rev. Dr. Turner notes in his personal essay, 
one of the most shocking aspects of the Massacre is that it 
occurred, not as an extralegal project of a few people, but rather 
as a mass, racially instantiated harm undertaken within the 
boundaries of law.13 
Author Tom I. Romero, II addresses how the state of 
Colorado’s property law regime has often been considered 
“colorblind.”14 Colorado, like many states formed just before or 
after the U.S. Civil War, has often seen itself as a place of 
equality and freedom that lacks many of the harms of more 
famously anti-Black parts of the United States.15 Property law 
in Colorado, Professor Romero notes, however, did not escape the 
blight of racism. Black and Brown communities in Colorado have 
long suffered harms of racist practices, including, among other 
things, racially restrictive covenants. Such covenants are formal 
legal promises to police the boundaries of Whiteness within 
certain neighborhoods.16 
This Symposium, in summary, not only queries the 
boundaries of slavery and its legacy, but also calls for an 
embrace of what I have described as the three Rs: recognition, 
reconciliation, and reparation.17 This symposium invites 
readers to broaden the bounds of conversations about slavery 
and its legacy and, in that process, to craft questions in good 
faith with a sincere purpose of attaining knowledge and 
reaching fair resolutions. 
 
13. Robert Turner, Roundtable: The 1921 Tulso Race Massacre; The Quest for 
Accountability, 94 U. COLO. L. REV. 445 (2023).  
14. Tom I. Romero, II, The Color(blind) Conundrum in Colorado Property Law, 
94 U. COLO. L. REV. 449 (2023). 
15. Lolita Buckner Inniss & Skyler Arbuckle, Slavery and the Postbellum 
University: The Case of SMU, 74 SMU L. REV. 723, 725 (2021) (“Even where there 
is an acknowledgement of the extensive social, legal, and financial structures 
governing American slavery, there has still been a tendency to think of slavery as 
being constrained in another way: by geography. Slavery is often framed as an 
institution that existed only in the ‘Deep South’ region of the United States.”). 
16. Inniss, supra note 1, at 144–46 (“Real covenants barring blacks from 
owning or renting property in certain neighborhoods were a common device to 
maintain racial separation.”). 
17. Inniss, supra note 3, at 131. 


Foreword: Expanding the Boundaries of Knowledge About Slavery and Its Legacy

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