Title VII’s Failures: A History of Overlooked Indifference

Abstract

Nearly sixty years after the adoption of Title VII and over thirty since intersectionality theory was brought into legal discourse by Professor Kimberlé Crenshaw, the U.S. Supreme Court has consistently failed to meaningfully implement intersectionality into its decisionmaking. While there is certainly no shortage of scholarship on intersectionality and the Court’s failure to recognize it, this remains an overlooked failure by the Supreme Court. This Note proceeds in three parts. Part I provides an overview of Title VII and intersectional discrimination theory. I then explain how the EEOC and the Supreme Court have historically handled intersectional discrimination cases. Part II compares and contrasts some of the most influential feminist, political, and legal theories on sex discrimination with intersectionality. Though these theories might seem incompatible, I then offer a brief discussion of how they can be understood in concert. I also explain how the Court can improve its Title VII decisionmaking. Part III provides a framework for courts, plaintiffs, and defendants in Title VII discrimination cases to incorporate intersectional theory and, most importantly, to recognize the unique harms experienced by plaintiffs bringing Title VII claims.