Abstract
Professor Marilyn Yarbrough's thought-provoking piece discusses law's unwillingness or inability to address discrimination against African-American women. Some courts have rejected legal protection for a new classification at the intersection of race and gender, instead forcing African-American women to prove discrimination on one basis or the other. In response, Professor Yarbrough proposes a new test under federal civil rights statutes and the Equal Protection Clause that balances the classification, the importance of the benefit or right involved, and the significance of the government's interest.
This Reply addresses Professor Yarbrough's proposal as it relates to the Equal Protection Clause. I believe that the Court's current three-tier Equal Protection Clause test adequately addresses the problem cases she raises. Instead, I suggest that intersectionality poses special problems in determining whether discrimination has occurred at all-problems that a balancing approach does not address. Ultimately, I suggest that these problems should be the focus of further analysis, not a new equal protection test.