Skip to main content


  • Devon W. Carbado (a1) and Mitu Gulati (a2)

In 1989, Kimberlé Crenshaw published Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, an article that drew explicitly on Black feminist criticism, and challenged three prevailing frameworks: 1) the male-centered nature of antiracist politics, which privileged the experiences of heterosexual Black men; 2) the White-centered nature of feminist theorizing, which privileged the experiences of heterosexual White women; and 3) the “single-axis”/sex or race-centered nature of antidiscrimination regimes, which privileged the experiences of heterosexual White women and Black men. Crenshaw demonstrated how people within the same social group (e.g., African Americans) are differentially vulnerable to discrimination as a result of other intersecting axes of disadvantage, such as gender, class, or sexual orientation.

This essay builds on that insight by articulating a performative conceptualization of race. It assumes that a judge is sympathetic to intersectionality and thus recognizes that Black women are often disadvantaged based on the intersection of their race and sex, among other social factors. This essay asks: How is that judge likely to respond to a case in which a firm promotes four Black women but not the fifth? The judge could conclude that there is no discrimination because the firm promoted four people (Black women) with the same intersectional identity as the fifth (a Black woman). We argue that this evidentiary backdrop should not preclude a finding of discrimination. It is plausible that our hypothetical firm utilized racially associated ways of being—performative criteria (self presentation, accent, demeanor, conformity, dress, and hair style)—to differentiate among and between the Black women. The firm might have drawn an intra-group, or intra-intersectional, line between the fifth Black women and the other four based on the view that the fifth Black woman is “too Black.” We describe the ease with which institutions can draw such lines and explain why doing so might constitute impermissible discrimination. Our aim is to broaden the conceptual terms upon which we frame both social categories and discrimination.

Corresponding author
Professor Devon W. Carbado, UCLA School of Law, University of California, Los Angeles, 405 Hilgard Ave, Los Angeles, CA 90095. E-mail:
Hide All

Support for this article was provided by the National Institutes of Health, National Institute for Minority Health and Health Disparities (MD00508 and MD006923). An earlier version of this article appears as Carbado, Devon W. and Mitu Gulati (2001). The Fifth Black Woman. Journal of Contemporary Legal Issues, 11: 701–729.

Hide All
Adamitis Elizabeth M. (2000). Appearance Matters: A Proposal to Prohibit Appearance Discrimination in Employment. Washington Law Review, 75: 195223.
Austin Regina (1989). Sapphire Bound! Wisconsin Law Review, 1989: 539578.
Butler Judith (1993). Bodies That Matter: On the Discursive Limits of “Sex.” New York: Routledge.
Caldwell Paulette M. (1991). A Hair Piece: Perspectives on the Intersection of Race and Gender. Duke Law Journal, 1991: 365396.
Caldwell Paulette M. (2008). Intersectional Bias and the Courts: The Story of Rogers v. American Airlines. In Moran Rachel F. and Carbado Devon W. (Eds.), Race Law Stories, pp. 571600. New York: Foundation Press.
Carbado Devon W. (2000). Black Rights, Gay Rights, Civil Rights. UCLA Law Review, 47: 14671519.
Carbado Devon W. (2002). Race to the Bottom. UCLA Law Review, 49: 12831312.
Carbado Devon W. (2013a). Colorblind Intersectionality. Signs, 38(4): 811845.
Carbado Devon W. (2013b). Key Terms in Theorizing and Empirically Investigating Intersectionality. Working Paper, UCLA School of Law.
Carbado Devon and Gulati Mitu (2000). Working Identity. Cornell Law Review, 85: 12591307.
Carbado Devon and Gulati Mitu (2012). Acting White? Rethinking Race in “Post Racial” America. New York: Oxford University Press.
Carnegie Dale (1936). How to Win Friends and Influence People. New York: Pocket Books.
Connecticut v. Teal (1982). 457 U.S. 440.
Civil Rights Act of 1964, 42 U.S.C. § 2000a (1964).
Crenshaw Kimberlé (1989). 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: 139167.
Crenshaw Kimberlé (1991). Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color. Stanford Law Review, 43: 12411299.
Degraffenreid v. General Motors Assembly Division, St. Louis (1976). 413 F.Supp. 142.
Espinoza v. Farah Manufacturing Company (1973). 414 U.S. 86.
Furnco Construction Corporation v. Waters (1978). 438 U.S. 567.
Harris Angela P. (1990). Race and Essentialism in Feminist Legal Theory. Stanford Law Review, 42: 581616.
Hutchinson Darren L. (1999). Ignoring the Sexualization of Race: Heteronormativity, Critical Race Theory and Anti-racist Politics. Buffalo Law Review, 47(1): 1116.
Kwan Peter (1997). Jeffrey Dahmer and the Cosynthesis of Categories. Hastings Law Journal, 48(6): 12571292.
Lam v. University of Hawaii (1994). 40 F.3d 1551.
Morris Madeline (1989). Stereotypic Alchemy: Transformative Stereotypes and Antidiscrimination Law. Yale Law and Policy Review, 7: 251273.
Onwuachi-Willig Angela (2010). Another Hair Piece: Exploring New Strands of Analysis Under Title VII. Georgetown Law Journal, 98: 10791131.
Rogers v. American Airlines (1981). 527 F. Supp. 229.
Scales-Trent Judy (1989). Black Women and the Constitution: Finding Our Place, Asserting Our Rights. Harvard Civil Rights-Civil Liberties Law Review, 24: 944.
Valdes Francisco (1995). Sex and Race in Queer Legal Culture: Ruminations on Identities & Inter-connectivities. Southern California Review of Law & Women's Studies, 5: 2571.
Wing Adrien Katherine (1990–1991). Brief Reflections Toward a Multiplicative Theory and Praxis of Being. Berkeley Women's Law Journal, 6: 181201.
Recommend this journal

Email your librarian or administrator to recommend adding this journal to your organisation's collection.

Du Bois Review: Social Science Research on Race
  • ISSN: 1742-058X
  • EISSN: 1742-0598
  • URL: /core/journals/du-bois-review-social-science-research-on-race
Please enter your name
Please enter a valid email address
Who would you like to send this to? *



Altmetric attention score

Full text views

Total number of HTML views: 12
Total number of PDF views: 134 *
Loading metrics...

Abstract views

Total abstract views: 414 *
Loading metrics...

* Views captured on Cambridge Core between September 2016 - 16th January 2018. This data will be updated every 24 hours.