Have you ever heard of an “intersectional” discrimination claim?


A white man filed a lawsuit against a company claiming that it denied him a high-six-figure executive position because of his race, age, and sex so that the company could search for more diverse candidates. Among the causes of action he asserted was one for race discrimination under 42 U.S.C. § 1981. A plaintiff suing under Section 1981 for a failure to hire must establish that “but for” his race, he would have gotten the job.

Whoa, whoa, whoa! Hold up.

If the plaintiff claims discrimination because of his race, gender, or age (i.e., any of the three), how can he establish that, but for his race, he would have gotten the job?

Let’s explore that further.

The federal court deciding this issue recognized a split of authority regarding whether pleading a claim for intersectional discrimination necessarily defeats a Section 1981 claim. Some courts have held that pleading multiple bases for discrimination (race, sex, age, etc.) destroys a Section 1981 claim.

At least one other local court went the other way and held that pleading an intersectional claim is not fatal to a Section 1981 cause of action. Why? Because “but for” is not synonymous with “sole reason.”

Indeed, the Supreme Court in Bostock v. Clayton County confirmed as much:

In the language of law, this means that Title VII’s “because of” test incorporates the “simple” and “traditional” standard of but-for causation. That form of causation is established whenever a particular outcome would not have happened “but for” the purported cause. In other words, a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.

This can be a sweeping standard. Often, events have multiple but-for causes. So, for example, if a car accident occurred both because the defendant ran a red light and because the plaintiff failed to signal his turn at the intersection, we might call each a but-for cause of the collision.

Now, let’s apply this standard to the present action. The plaintiff claims he would have gotten the job if he had been a more “diverse” candidate. In other words, they would have hired him if we weren’t white. If true, that’s a “but-for” reason the defendant failed to hire the plaintiff — even if his sex and age also played a role in the hiring decision.

Now, all that’s left for the plaintiff is to, you know, prove it.

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