By Erica Thurman

Almost 30 years after feminist legal theorists like Kimberle Crenshaw examined Title VII, one glaring fact remains--Black women are still left without remedy in cases of employment discrimination.

How does that work? If Title VII protects women and African Americans, how do Black women fall through the loophole? Take for instance the case of DeGraffenreid v. General Motors. In that case, five Black women brought suit against General Motors. Prior to 1964, General Motors had not hired any Black women. In a subsequent layoff based on seniority, all of the Black women hired after 1970 were left without jobs. The district court granted summary judgment for General Motors concluding that the case could “be examined to see if it states a cause of action for race discrimination, sex discrimination, or alternatively either but not a combination of both.” Quite simply, the five women of DeGraffenreid could base the suit on sexual discrimination or racial discrimination but not a combination of both. They would have to choose.

The loophole? General Motors had hired white women who were not affected by the layoffs so any claim of sexual discrimination would not hold. In similar cases, when the defendant has not discriminated against Black men, claims of racial discrimination against Black women are rendered void.

Unacknowledged in cases such as this is the overlapping (intersectional) forms of discrimination experienced by Black women. There are many stereotypes and standards applied specifically to Black women that do not apply to white women or Black men. Neither white women nor Black men are subjected to socially constructed images of Mammy, Jezebel, Sapphire and the Welfare Queen. These stereotypes often form the basis for workplace discrimination, including performance identity expectations unique to Black women.

Sadly, almost 40 years after DeGraffenreid, Black women are still not considered a class to be protected and in the event of such discrimination we are forced to choose. We can be Black, we can be women but under many standards of the law—we cannot be both. 

Erica Thurman is the Director of Stepping Stones, the sexual assault program at YWCA McLean County. Her responsibilities include the programmatic and budgetary oversight of counseling and medical/legal advocacy services to survivors of sexual assault and sexual assault prevention education and community outreach in McLean County.  A Chicago native, Erica is an alumna of Illinois State University. Her research on reproductive justice for women of color and the socially constructed identities of Black women has been presented nationally. Locally, you can find her performing spoken word at any given open mic night.

The views expressed here are solely those of Erica Thurman and should not be considered the views of YWCA McLean County.

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