The Roberts Court has erected nearly insurmountable burdens of proof under Title VII and the Fourteenth Amendment.

Argued March 1, 1976.Decided June 7, 1976.

Ms. Justice CRENSHAW delivered the opinion of the Court.1

Since Africans were brought to North America to serve whites four centuries ago, nothing has been more closely associated with their status as enslavable people than the power granted to policing agents to surveil, control, capture, and punish them. And during slavery and since, nothing has been used to justify the brutal coercion of those deemed enslavable more than the idea that their subjugation was due to inherent deficiencies purportedly tied to race: physical, moral, temperamental, and intellectual. Even science has been manipulated to advance the false proposition that the purported inferiority of African people is objectively observable, quantifiable, and inalterable, a transhistorical characteristic of an essentialized Blackness thought to exist entirely apart from the specific contours of racial subjugation.

Chapter 1 demonstrates that employment discrimination law is not neutral or objective, favoring employers’ interests over those of employees as victims. It introduces fifteen US federal cases, rewritten using feminist perspectives and techniques, as well as only information available at the time of the original opinions. Commentaries accompany each opinion, explaining differences from the original and differences the rewritten opinion would have made to employment discrimination law. The chapter summarizes these cases and argues that the opinions, as rewritten: better narrate victims’ stories; improve the law around proving discrimination; diminish appearance regulation and encourage diversity in workplaces; eliminate the “double bind”; recognize LGBTQ+ rights in the workplace; prevent sex- and gender-based harassment; offer insight into intersectional approaches; and recognize the implicit bias and stereotypes that cause discrimination. This chapter also briefly examines the issues in employment discrimination law that this book does not discuss in depth, such as age and disability discrimination, predispute arbitration clauses, and discrimination by religious employers.

Shortly after its adoption, progressive reformers recognized substantial shortcomings of Title VII of the Civil Rights Act of 1964 governing employment discrimination. To overcome these limitation, members of the Democratic Party worked with aligned justices on the Supreme Court to develop evolving understandings of Title VII to support racial minorities seeking to access the federal judiciary and to reduce the evidentiary burdens necessary to prevail at trail. These progressives also supported willing employers' efforts by protecting affirmative action. Conservatives on the bench and in the elected branches aligned with the Republican Party worked in a deliberative fashion to counter these efforts. But, as is true for both coalitions, when justices introduced novel positions that went beyond the interests of their elected counterparts, they relinquished their novel doctrinal positions, which is consistent with the deliberative partnership thesis.