North Carolina Law Review

University of North Carolina School of Law

160 Ridge Road

Chapel Hill, NC 27514

Clustered Bias

January 17, 2018

96 N.C. L. Rev. 457 (2018) 

 

Agencies, advocates, and courts regularly and repeatedly fail plaintiffs who have experienced intersectional discrimination based on more than one personal identity trait. Nearly thirty years after intersectionality theory was first introduced to legal scholarship, however, its insights have yet to be effectively integrated into antidiscrimination advocacy and doctrine. This Article borrows the contributions of intersectionality theory and explores its critiques to develop a novel “cluster framework” for bridging the divide between the theory and civil rights jurisprudence. Using race-sex discrimination as a lens, the proposed framework relocates intersectional discrimination wholly within a traditionally protected class, illuminating similarities and differences in discrimination across groups and subgroups. This Article concludes with three concrete proposals to implement the cluster framework such that the antidiscrimination doctrine will better recognize and remedy intersectional discrimination. 

 

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