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Disregarding the Gap: The Perpetuation of the Multiple Disadvantages
for Working Black Women

by Brianna Turner | Fall 2019

This article seeks to understand the legal constraints around wage discrimination against black women. By analyzing two major wage discrimination cases brought on by black women, this study hopes to comprehend why intersectional workplace discrimination is not precedent under the law. Furthermore, this article will offer suggestions for how to legally aid black women in the struggle for pay equality. The article will identify and explore two major policies proposed to Congress that might remedy wage discrimination if approved.

2. Fisher, M. (2015, April). Women of color and the gender wage gap. Retrieved from Center for American Progress website: https://cdn.americanprogress.org/wp-content/uploads/2015/04/WomenOfColorWageGap-brief.pdf.

4. Crenshaw, K. (n.d.). Demarginalizing the intersection of race and sex: A black feminist critique of antidiscrimination doctrine, feminist theory and antiracist politics. University of Chicago Legal Forum, 1989(1). Retrieved from https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1052&context=uclf.

Disparity, inequality, gap. No matter the word, it is understood that inequity exists and each of us responds as we can. For women, this means working to prove themselves just as qualified as men. In the early twentieth century, women in the United States fought for voting equality.  This battle was won, yet it was the start of the bigger battle women are now fighting: equal outcome in the economy. While women strived for equality, so, too, did African Americans who throughout the nineteenth and early twentieth century were treated as second class citizens. Black families were systematically denied the same basic rights that others had. Black men became mass incarcerated and the job of providing for a family fell on black women, who like all other women did not earn the same as a white man and suffered the double disadvantage of being women and black. Although black women are paid less as a compounded result of both their gender and race for doing the same work as their white male counterparts, courts around the United States have failed to agree that multiple components of a person’s identity can impact the way they are discriminated in the workplace. This is a flawed belief as the intersections between race and gender greatly impact how a person is treated and paid in the workplace.

First, it is imperative to understand that both race and gender affect a person’s pay. As of 2016, the average woman (of any race) makes roughly 81 cents of a white man’s dollar.[1] Across races and ethnicities, white women earn roughly 78 percent of a white man’s dollar, Asian women receive 90 percent of a white man’s dollar, black women earn about 64 percent, and Hispanic women earn roughly 54 percent.[2] Even when comparing solely black women and black men, a black woman will earn 89% of a black man’s dollar.[3] In essence, a woman of color’s, equal work is somehow worth less.

Kimberle Crenshaw’s theory of intersectionality[4] sheds light on the legal issues currently surrounding wage discrimination against black women. When black women have presented various cases seeking remedies against discrimination in the workplace, judges have asked them to decide whether to sue for race discrimination or sex discrimination, never both. Taking from Crenshaw’s research, I will analyze two major wage discrimnation cases involving black women.

In 1976 Emma DeGraffenreid and other black female employees sued General Motors under the Civil Rights Act of 1964, alleging that the company's industrial policies discriminated against black women. The court rejected the women’s lawsuit claiming:

The plaintiffs are clearly entitled to a remedy if they have been discriminated against. However, they should not be allowed to combine statutory remedies to create a new 'super-remedy' which would give them relief beyond what the drafters of the relevant statutes intended. Thus, this lawsuit must 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.[5]

Furthermore, the court claimed that the plaintiffs could not prove, through citation of previous cases, that black women are a special class that warrants protection. This makes sense considering that systemic racism might make black women more fearful of seeking legal action for discrimination. Additionally, taking into consideration that many black women live in poverty, it is unlikely that they could acquire the sort of legal counsel that would argue that they are a class of individuals that require “special protection.” This determination set forth by the District Court of Missouri suggests that the very specific and separate category of discrimination of black women does not exist in the eyes of the law.

 

In 1983, Tommie Moore sued Hughes Helicopters, Inc. on behalf of other black female Hughes employees, alleging they were discriminated against in the job promotion process on account of their race and sex. The judge ruled in favor of involuntary dismissal, claiming that Moore failed to determine a prima facie case, meaning the case did not make a sufficient argument in order to raise a rebuttal. Hughes argued that the black women lacked the expected requirements for the pool of applicants, and thus the the court did not see this as a case of discrimination.

 

These two cases suggest that there is a need for intersectional discrimination to be explicitly written into the law. There are two policies that have been previously proposed that I believe would greatly impact the fight for wage equality: the Equal Rights Amendment (ERA) and the Paycheck Fairness Act. The ERA, which was introduced in 1923 and never passed, proposed equal legal rights for American citizens regardless of sex. The original version of the ERA was opposed by many working class women for lacking specific protections regarding working conditions, hours, and wages. Should the ERA ever be approved, a section of it could state that persons facing discrimination as a result of multiple parts of their identity can seek legal action on behalf of the sum of those parts. In addition, the Paycheck Fairness Act, a new bill proposed in 2017, would help to ensure that all persons receive equal pay for equal work. The Paycheck Fairness Act would add procedural protections to the Equal Pay Act of 1963 and the Fair Labor Standards Act, helping to guarantee that everyone, including women of color, is fairly compensated for their labor. In the end, true equality between the sexes can not be achieved without policy. The U.S. government must enact an equal pay law that requires companies to pay women, regardless of their race, age, or marital status, the same as a white man holding the same position.

 

REFERENCES

[1] Carnevale, A. P., Smith, N., & Gulish, A. (2018, February 27). Women can't win.

     Retrieved 2018, from Georgetown Center on Education and the Workforce

     website: https://cew.georgetown.edu/cew-reports/genderwagegap/

[2]  Fisher, M. (2015, April). Women of color and the gender wage gap. Retrieved from Center for American Progress website: https://cdn.americanprogress.org/

     wp-content/uploads/2015/04/WomenOfColorWageGap-brief.pdf

[3] Hegewisch, Ariane, and Heidi Hartmann. “The Gender Wage Gap: 2018 Earnings Differences by Race and Ethnicity.” Institute for Women's Policy Research. Accessed 2019. https://iwpr.org/publications/gender-wage-gap-2018/.

[4] Crenshaw, K. (n.d.). Demarginalizing the intersection of race and sex: A black feminist critique of antidiscrimination doctrine, feminist theory and antiracist politics. University of Chicago Legal Forum, 1989(1). Retrieved from https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1052&context=uclf

[5] Crenshaw, “Demarginalizing the intersection of race and sex,” 141    

1. Carnevale, A. P., Smith, N., & Gulish, A. (2018, February 27). Women can't win. Retrieved 2018, from Georgetown Center on Education and the Workforce website: https://cew.georgetown.edu/cew-reports/genderwagegap/.

3. Hegewisch, Ariane, and Heidi Hartmann. “The Gender Wage Gap: 2018 Earnings Differences by Race and Ethnicity.” Institute for Women's Policy Research. Accessed 2019. https://iwpr.org/publications/gender-wage-gap-2018/.

5. Crenshaw, “Demarginalizing the intersection of race and sex,” 141.