SB 1137 Expands California’s Civil Rights Laws Prohibiting Discrimination Based on “Any Combination Of” Protected Characteristics, A.K.A. “Intersectionality”

11.18.2024

On September 27, 2024, Governor Newsom signed Senate Bill (“SB”) 1137 which amends Civil Code section 51, Education Code sections 200 and 210.2, and Government Code sections 12920 and 12926, relating to discrimination. The provisions of SB 1137 are stated to be declaratory of existing law, and therefore went into effect on September 27, 2024.

In passing SB 1137, the Legislature included in its declaration:

It is the intent of the Legislature to hereby recognize the concept of intersectionality in California’s civil rights laws. Intersectionality is an analytical framework that sets forth that different forms of inequality operate together, exacerbate each other, and can result in amplified forms of prejudice and harm. The framework and term “intersectionality,” coined and popularized by legal scholar Professor Kimberlé Williams Crenshaw, captures the unique, interlocking forms of discrimination and harassment experienced by individuals in the workplace and throughout society, particularly Black women, as compared to Black men and White women.

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The Legislature recognizes that where two or more bases for discrimination or harassment exist, they cannot be neatly reduced to distinct components. The attempt to bisect a person’s identity at the combination of multiple protected characteristics often distorts or ignores the particular nature of their experiences. When a person claims multiple bases for discrimination or harassment, it may be necessary to determine whether the discrimination or harassment occurred on the basis of a combination of those factors, not just based on any one protected characteristic by itself. In this regard, the Legislature affirms the decision of the Ninth Circuit Court of Appeals in Lam v. University of Hawai’i (9th Cir. 1994) 40 F.3d 1551.

Even prior to the passage of SB 1137, all persons in public schools were protected from discrimination on the basis of their protected characteristics. SB 1137 expands existing nondiscrimination mandates to also prohibit discrimination based on “any combination of” protected characteristics under the law.   SB 1137 also expands the operative definition of “race” to include discrimination complaints based on “traits associated with race, including, but not limited to, hair texture and protected hairstyles.”  Under the amendments of SB 1137, a group or class of individuals may now file a single complaint “alleging a pattern or practice” of discriminatory conduct based on a protected characteristic.

In response to SB 1137,  Local Educational Agencies (“LEA”) should be sure to update their policies related to complaints of discrimination to reflect that discrimination is prohibited not only based on one specific protected trait, but also on the combination of any one or more protected characteristics. Although these protections are not new, LEAs should be sure to address allegations that discrimination was based on the combination of two or more protected characteristics when investigating complaints of discrimination, and account for any potential impact of the combination on investigatory findings.

If your agency requires guidance on how to prepare for upcoming changes and/or compliance with SB 1137, or if you have any questions about this Alert, please contact your AALRR attorney or the authors of this Alert.