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Carastathis BasementsandIntersections
Carastathis BasementsandIntersections
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intersecting, or how. Kathy Davis argues that the “vagueness” of intersectionality par-
tially explains its popularity and buzzword status (Davis 2008, 69). But is “intersec-
tionality” vague, or is it appropriated without deep engagement with Crenshaw’s
work, and used in ways that distort and even invert the meaning of the concept?
My argument proceeds as follows. First, I situate Crenshaw’s argument in the
broader intellectual context of critical race feminist critiques of antidiscrimination
law. Then, I perform a reading of Crenshaw’s “Demarginalizing” essay, which argues
that both spatial metaphors—the “basement” and the “intersection”—play an impor-
tant role in her argument. I elaborate the implications of the disappearance of the
basement, and coextensively, of a theory of hierarchical power from many “intersec-
tional” accounts. Finally, I draw on Katherine McKittrick’s concept of “flat geogra-
phy” to suggest that, divorced from an account of hierarchy, deployments of
“intersectionality” risk flattening power relations (McKittrick 2006).
Precisely because it represents hierarchy, it is remarkable that Crenshaw’s basement
metaphor has been overlooked in feminist theory. What is the relation of basements to
intersections? What theoretical work is each metaphor doing in Crenshaw’s account in
“Demarginalizing”? Given the significance of both metaphors in Crenshaw’s account, it
is perhaps surprising how seldom discussions of intersectionality engage the basement
metaphor. Of the two spatial metaphors she offers, why has the basement been relegated
to obscurity? What happens to the metaphor of intersectionality if we detach it from
the account of socio-legal hierarchy that the basement metaphor evokes? In leaving the
basement behind, the intersection may have become a more mobile traveling metaphor,
but at the risk of forgetting Crenshaw’s crucial account of how social hierarchy is repro-
duced through the law and in political movements that use essentialist, monistic categories.
Some of the traction of the term intersectionality can surely be attributed to the
antecedent concept of “interlocking systems of oppression,” defined in a movement
context by the Combahee River Collective (CRC) in “A Black Feminist Statement”
as the structural anchor of the experience of simultaneous oppressions and as the
target of integrated political struggle (CRC 1977/1983, 13, 16). Yet although “inter-
locking systems” form part of the intellectual, political, and existential history of
Crenshaw’s conceptualization of the intersection of categories of discrimination
(Crenshaw 1989) and of structural, political, and representational intersectionality
(Crenshaw 1991), these are all distinct concepts that deserve careful analysis and
attentive operationalization. This paper contributes to the effort to reclaim the
concept from “postracial” feminist appropriations, which take intersectionality as the
sign of arrival for race-critical or “inclusive” feminism—as opposed to a “provisional
concept” articulating the need for the cognitive, conceptual, political, and theoretical
transcendence of monistic, essentialist categories (Crenshaw 1991, 1244).
One contribution of critical race theory has been to expose how, in a post-civil rights
era in which legal forms of oppression based on “race” and “sex” are supposed to have
700 Hypatia
been eradicated, the law nevertheless reproduces oppressive social hierarchies. This
belies, to quote Derrick Bell, a “commonly held view of racial advancement as a slow
but steady surge forward” (Bell 1991, 597). Antidiscrimination law, in particular,
helps cement a perception of the US legal system as having reinvented itself on the
way to creating a “postracial” society—while being one of the primary institutions
reproducing whiteness as property (Harris 1993). Indeed, along with affirmative
action and the presidency of Barack Obama, antidiscrimination law is often held up
as one sign that the “postracial moment” has already arrived. Warning twenty-five
years ago against that misperception, Crenshaw argued that antidiscrimination law
should not be viewed as “a permanent pronouncement of society’s commitment to
ending racial subordination” (Crenshaw 1988, 1335). Rather, Crenshaw characterizes
antidiscrimination law as “an ongoing ideological struggle in which the occasional
winners harness the moral, coercive, and consensual power of law”; consequently,
“the victories it offers can be ephemeral and the risks of engagement substantial”
(Crenshaw 1988, 1335).
In “Demarginalizing,” Crenshaw performs an intersectional analysis of three cases
involving Black women plaintiffs alleging discrimination against their corporate
employers. Crenshaw demonstrates that in US courts, conceptual models of identity
and discrimination—the mutually exclusive “protected” categories of “sex” and
“race”—render legal redress impossible for Black women plaintiffs precisely because of
their intersection (Crenshaw 1989). Black women were not viewed by the judges
deciding these cases as “representatives” of either protected group to which they
belong, Black people nor women, because their experiences diverge in gendered and
racialized ways from those deemed the “historical base” (Crenshaw 1989, 148).
Relative privilege renders cognizable the discrimination claims on the basis of discrete
categories advanced by white women and Black men (140). Moreover, white women
and Black men emerge, in Crenshaw’s argument, if not always as the direct beneficia-
ries of antidiscrimination laws and policies, then as the imagined normative subjects
of “protected” groups. By contrast, the intersection is a place of legal invisibility for
Black women plaintiffs, who, by the positivist logic of representation underwriting
antidiscrimination law, are denied legal redress. Precisely because of the “multidimen-
sionality of Black women’s experiences” of discrimination—which the law acknowl-
edges only as compound, additive, or unitary—and the privileging of whiteness and
maleness in defining “normative” experiences of discrimination, Black women find
themselves excluded by design from protected classes, and also are denied redress as a
distinct class.
Many people are astonished to hear the logic of the decisions Crenshaw cites,
particularly the DeGraffenreid decision (which I discuss in detail in the next section).
It contradicts the intuition that those who face the most egregious discrimination
would justifiably receive the most extensive remedy. Accordingly, if Black women are
the targets of compound discrimination, then it follows that multiple sources of
discrimination would need to be addressed. But this reasoning presupposes a faith in
the law that US socio-legal history does not bear out. On the contrary, both judges
and juries deciding discrimination claims exhibit pervasive bias against Black women
Anna Carastathis 701
plaintiffs, denying them redress for discrimination more frequently than any other
group, including white men (Best et al. 2011). That the law has reconfigured itself
against the potentially redemptive effects of legal reform and constitutional amend-
ment is evinced in the role antidiscrimination doctrine plays in reproducing a class
system articulating racial and gender hierarchies.
If, as Crenshaw argues, antidiscrimination law represents an ideological struggle,
representation—in its political, legal, and perceptual-cognitive senses—plays a crucial
role. The traffic in representations between white supremacist and heteropatriarchal
ideologies, democratic processes (such as state referenda that have repealed antidis-
crimination and affirmative action measures), and antiracist and feminist movements
circulates in an economy that structures even habitual, prereflective perceptions of
our gendered and racialized embodiments. The institutionalization of white patriar-
chal power through antidiscrimination law—notably, an important site of contesta-
tion of class relations—is evinced in the privileging of whiteness and masculinity
even when these are not embodied in white male plaintiffs and especially when they
are embodied in white male (corporate) defendants. If the failure of US courts to
redress discrimination against Black women by corporate employers is surprising, how
can we reconcile the fact that white male plaintiffs, in whose favor courts have an
existing presumption, more easily and more profitably win suits charging employment
discrimination than do women and men of color and white women (Selmi 2001;
Oppenheimer 2003; Best et al. 2011)?
Despite the endemic nature of gendered racism and other forms of discrimination
in the workplace, Kevin Claremont and Stewart Schwab found that between 1979
and 2006, the plaintiff win rate for employment discrimination cases was 15%, as
opposed to 51% for other cases (Claremont and Schwab 2009, 129–30). Revealing
the asymmetry in resources between employees and employers, 42.76% of cases were
appealed after the plaintiff (employee) won, whereas only 10.12% were when the
defendant (employer) did—and employers won approximately 85% of the time
(Claremont and Schwab 2004, 450). However, plaintiffs prove more successful when
they mobilize social privilege in their discrimination claims: the economic staying
power to pursue the litigation process through trial and appeals; the representational
power to lay claim to protected groups or categories of proscribed discrimination; and
the socio-legal power to compel courts to cognize and redress their experiences.
Consider Rudebusch v. Arizona, a successful Title VII discrimination claim filed
by forty white male professors against their employer, Northern Arizona University.
In 1995, after the implementation of an equity pay raise, a class of NAU “female
and non-minority male professors” sued the University President for equal protection
violations under §1981, §1983 (Rudebusch v. Hughes 2002). Less than a year later,
class representative George Rudebusch and thirty-nine white male professors sued
NAU under Title VII (Rudebusch v. Arizona 2007). In November 1996, the court
consolidated the cases. It affirmed judgment in favor of the defendants in the class
action, deeming Hughes “immune” from personal liability. But the Title VII action
continued. The court found the equity pay raise violated the rights of white male
faculty who had been ineligible for any increase. The court decided the equity pay
702 Hypatia
raise went beyond “attaining a balance,” raising some women’s and non-white men’s
salaries above those of white male professors (Rudebusch v. Arizona 2007). In 2007,
after ten years of litigation, the court awarded a settlement of almost $2 million. Of
261 plaintiffs alleging discrimination, forty obtained “relief” under Title VII and all
of them were white men. Moreover, the University had already “compensated” them
for the equity raise, effectively reversing it.
Yet why would considering Black women as a distinct protected class raise them
above other classes—would it not just place them at an equivalent standing? What
seems to be presupposed in the court’s remarks, and what it naturalizes with its find-
ing, is Black women’s structural positioning in racial and gendered hierarchies that
privilege maleness and whiteness. If legislators did not intend that Title VII be used
to protect Black women from discrimination against them as Black women, it was
because they did not construct “discrimination” with Black women at the center of
that legal concept (Crenshaw 1989; Carbado 2000). As Devon Carbado writes, the
court’s analysis in DeGraffenreid reveals that “Congress did not contemplate that
black women could be discriminated against as black women” (Carbado 2000, 2090).
What this means is that Black women’s experiences of gendered racism are excluded
by design. Black women are rendered unrepresentative, and therefore unrepresentable,
by monistic concepts of discrimination that privilege masculinity and whiteness in
their construction of protected classes.
However, the DeGraffenreid standard has not gone entirely uncontested. But from an
intersectional perspective, as I construe it, the alternative approaches presuppose
problematic conceptions of discrimination. Yet some scholars, such as D. Aaron Lacy
(2008), argue that successful “sex-plus” claims mean that courts have, at least to some
extent, adopted an intersectional framework. In Jefferies v. Harris County Commu-
nity Action Association (1980), a Black woman made a race-and-sex discrimination
claim for first having been overlooked for a promotion, and then having been termi-
nated in her position by her employer (Carbado 2000, 2090). The positions for which
she applied were filled by Black men and non-Black women (some of whom were
white and, others, women of color). When a trial court dismissed her claim, she
appealed, and the US Court of Appeals for the Fifth Circuit agreed that the earlier
Court had failed to consider her claim of compound discrimination. In Jefferies, the
Court recognized that discrimination against Black women can exist “even in the
absence of discrimination against [B]lack men or white women” (Carbado 2000,
2091). In fact, the Court stated that it is “‘beyond belief’ that Title VII would bar
discrimination against women, or against [B]lacks, but not against Black [women]”
(Bartlett and Harris 1998, 1068). Departing from the DeGraffenreid standard, the
Court interpreted the “or” in the list of protected factors of discrimination as
conjunctive, not disjunctive. That is, the Court stated that Congress intended to
prohibit discrimination based on any or all the listed characteristics: race, sex,
national origin, and so on (Carbado 2000, 2091).
Although undermining the mutual exclusivity of protected grounds seems like a
progressive judicial decision, it is important to note that what led to this finding was
the “sex-plus” analysis earlier established by the Supreme Court in Phillips v. Martin
Marietta Corporation (1971). It is significant that this decision had been made six
years prior to DeGraffenreid, and nearly twenty years prior to the publication of
706 Hypatia
2011). According to Rachel Best and her collaborators, who quantitatively analyzed a
representative sample of thirty-five years of federal employment discrimination claims,
not only are women of color “less likely to win their case than is any other demo-
graphic group”; “plaintiffs who make intersectional claims, alleging that they were
discriminated against on more than one ascriptive characteristic are only half as
likely to win their cases as other plaintiffs,” alleging discrimination on a single
protected ground—15% compared to 31% (Best et al. 2011, 2). If “intersectionality”
as it is (mis)interpreted by courts can be shown to imperil rather than illuminate the
discrimination claims advanced by “multiply disadvantaged” plaintiffs, what better
evidence can be furnished for the claim that the law can adapt even to profound
challenges to its analytical structure and its political legitimacy?
and through analogy. When intersected, they do not illuminate the causal history of
Black women’s oppression; as categories they are too narrow, precisely because they
exclude each other. When Black women do seek legal redress using these categories,
courts have devised any number of interpretations and arguments to reject their
claims of discrimination.
The intersection metaphor speaks to the interplay between institutionalized gen-
dered racism and its reproduction through antidiscrimination law (and corporate
power). The conceptual structure of categories of discrimination is such that when
they intersect, they render experiences of compound, simultaneous discriminations
invisible. But this is no accident. This is how law serves to reproduce deeply
entrenched social hierarchies: by offering remedy for discrimination only where
claims are nonintersectional, that is, where plaintiffs can demonstrate—through their
hold on whiteness or maleness, or, indeed, both—that their experiences of discrimi-
nation are legible through one, and only one, category of discrimination. To show
how such plaintiffs mobilize their relative privilege to ascend social hierarchies even
as they reinscribe them, Crenshaw offers a second spatial metaphor.
Oppression is reproduced through antidiscrimination law; remedial strategies serve
Black women plaintiffs only to the extent that they can be absorbed into protected
social groups, which at the same time they are denied the ability to represent. This
reproduces Black women’s subordination in social hierarchies. Rather than remedying
discrimination against Black women, antidiscrimination law actually reproduces it.
The basement metaphor illustrates the crux of Crenshaw’s argument about the
socio-legal reproduction of gendered race/class hierarchies:
Imagine a basement which contains all people who are disadvantaged
on the basis of race, sex, class, sexual preference, age and/or physical
ability. These people are stacked—feet standing on shoulders—with
those on the bottom being disadvantaged by the full array of factors,
up to the very top, where the heads of those disadvantaged by a
singular factor brush up against the ceiling. Their ceiling is actually
the floor above which only those who are not disadvantaged in any
way reside…. [T]hose above the ceiling admit from the basement only
those who can say that “but for” the ceiling, they too would be in the
upper room. A hatch is developed through which those placed imme-
diately below can crawl. Yet this hatch is generally available only to
those who—due to the singularity of their burden and their otherwise
privileged position relative to those below—are in the position to
crawl through. Those who are multiply-burdened are generally left
below unless they can somehow pull themselves into the groups that
are permitted to squeeze through the hatch. As this analogy translates
for Black women, the problem is that they can receive protection
only to the extent that their experiences are recognizably similar to
those whose experiences tend to be reflected in antidiscrimination
doctrine. (Crenshaw 1989, 151–52)
710 Hypatia
The “unprotected margin” of the basement is the intersection, a place of legal invisi-
bility. Like the intersection, the basement is another spatial metaphor, but this one
describes social hierarchy. Lines of power are imagined vertically, rather than hori-
zontally. As a vertical structure representing social hierarchy, the basement metaphor
evokes the CRC’s claim that the liberation of Black women has the potential to
uproot social hierarchy: “our position at the bottom,” they write, makes possible “a
clear leap into revolutionary action. If Black women were free, it would mean that
everyone else would have to be free since our freedom would necessitate the destruc-
tion of all the systems of oppression” (CRC 1977/1983, 19). Yet whereas the CRC
sought a revolutionary strategy, the basement metaphor shows that strategies like
antidiscrimination law function at best remedially, at worst to reproduce the existing
hierarchy. Courts privilege those individuals who “but for” the ceiling would not be
in the basement.
Indeed, as we have seen in the foregoing analysis of Rudebusch, those reasserting
their entitlement to remain on the main floor, above the basement, have been even
more successful. “Single-axis” challenges to discrimination mobilize socio-legal privi-
lege, resulting in the re-entrenchment of the established social hierarchy (Crenshaw
1989, 145; Rosenblum 1994). This is possible only if Black women and other histori-
cally oppressed groups—on whose shoulders relatively privileged individuals stand to
make these gains—continue to inhabit the basement. The existing social hierarchy is
reproduced, not undermined, through some individuals’ ascent. Moreover, white male
privilege is naturalized in antidiscrimination law; the notion of “achieving a balance”
literally preserves it.
Like the intersection metaphor, the basement metaphor is spatial, but I would sug-
gest it is also temporal, representing a diachronic social process of gendered race/class
formation. It exposes the ahistorical structure of juridical conceptions of discrimina-
tion, revealed in the intersection where responsibility for history, for the causality of
the “accident” that injures a Black woman, is systematically refused. Eliding the
historical origins and material character of the US state and its institutions, as well
as the system of property it defends, the law represents wrongful discrimination as a
corruption of an otherwise fair or neutral process. “Wrongful” or “unlawful” discrimi-
nation in US legal doctrine is a process-based conception, rather than a substantive
one (Crenshaw 1989, 151). A process-based conception of discrimination assumes
that, in the absence of wrongful discrimination, the hiring practices and relations of
production in question are just. For instance, a “fair” process is corrupted when the
employer bases a hiring decision on the applicant’s gender or race, rather than the
applicant’s (gender- and race-neutral) qualifications.
Yet this narrows the scope of antidiscrimination law such that it cannot provide
restitution for the claimant’s whole experience of discrimination over a lifetime,
much less redress the oppression and exploitation of entire groups. Instead, discrimi-
nation claims most often focus narrowly on a single instance or act of discrimination,
excised from history. Courts rarely accept claims of continuing violations, and have
set a high evidentiary threshold for proving “systemic” and “serial” violations. More-
over, if an employee fails to bring forth a complaint to the EEOC in a stipulated
Anna Carastathis 711
privileges stemming from whiteness, nor from maleness. The law defines discrimina-
tion in terms that allow only relatively privileged individuals, standing on the shoul-
ders of people below, to climb out of the basement through a remedial “hatch”—
mutually exclusive categories of “race” and “sex”—to the main floor above. The
intersection metaphor indicates that those concepts are inadequate—if, in fact, the
aim of the remedy is to eliminate social hierarchy. But we can as easily see this by
looking around at who is left in the basement.
The intersection, like Collins argues of the margin, is now invoked as an “ahistori-
cal, ‘universal’ construct applied to all sorts of power relations” (Collins 1998, 129).
For instance, it is often claimed that “we all have intersectional identities.” Yet
although it is important to deploy intersectionality as a heuristic to reveal how privi-
lege structures monistic categories of identity, as my analysis of Rudebusch reveals,
the normative coextensiveness of masculinity and whiteness presents women of color
with distinctive political and representational problems, which Crenshaw, inheriting
a tradition of Black feminist thought, theorizes in her 1991 essay.
Selective appropriation of the intersection metaphor, and forgetting of the basement
metaphor, signals precisely the kind of commodification of Black feminist thought
against which Collins warns (Collins 1998, 58). To resist this reification of intersection-
ality, it is useful to remember that in “Demarginalizing,” the metaphor and the concept
appear as a critical intervention in antidiscrimination law. Intersecting the categories
of race and sex shows that “Black women’s experiences are broader than the general
categories discrimination discourse provides” (Crenshaw 1989, 149). Rather than
supporting complacency with their continued use, Crenshaw invokes “intersectionality”
as a “provisional concept” toward “a methodology that will ultimately disrupt the
tendencies to see ‘gender’ and ‘race’ as exclusive or separable” (Crenshaw 1991, 1244,
n. 9). Yet “intersectionality” is often invoked as a theory based on these same catego-
ries, which are stabilized and not disrupted in the process. This facilitates the impres-
sion that feminist theory has arrived at some “postracial” moment, signified through
vague appeals to “intersections” and secured through the forgetting of “basements.”
NOTE
I am grateful to Ann Garry for helpful comments on a previous draft of this essay.
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