Performativity is a concept that seeks to define and maintain identity. It reverses the idea that identity is the source of secondary actions like speech and gestures. As such, identity is caused by performative actions, behaviors, and gestures (Pfeifle, 2014). The article, ‘the fifth black woman,’ focuses on intersectionality and asserts that its future is promising. Intersectionality has laid a basis for the construction of new theories of discrimination such as identity performance. It argues that an individual’s experiences with discrimination are not only based on status identity, but also on the choices made on how to present the difference thereby forming the basis for performance identity. An analogy to the issue is how a person makes choices on the type of dress, accent, and hair style to present their gender, despite the constraints of the society and other pressures. They are all choices about performance.
Intersectionality advocates for the legal recognition of particular status identities. The general understanding is that specific social groups, like black people, have multiple status identities like black lesbians, black heterosexual women, and black heterosexual men (Gulati & Carbado, 2001). The various social identity holders in a social group are situated differently on the level of, and form of discrimination they face. According to intersectionality, the determination of whether an individual is a victim of discrimination should be an obligation of the courts to consider specific status identity occupied by the person. It is important for courts to pay attention to the specific status identity of a plaintiff for it to discover whether the plaintiff’s discrimination is rooted from an intra-group difference. Courts have a tendency of conceptualizing racial discrimination as an inter-group difference such as that of whites and Asian Americans. In such a case, an Asian American plaintiff will have to demonstrate that she received different treatment to a non-Asian American in a similar situation. It would be likely that the plaintiff is not subject to the type of discrimination displayed.
Discrimination is based on both inter-group and intra-group differences. Intra-group differences have a basis on identity performance as well as identity status. In a case where an organization prefers Asian American women to Asian American men, the preferences may be narrowed to quiet and passive Asian American women to those Asian American women who fail to show the characteristics.
Regarding performative conception of race, the discussion is based on a hypothetical case of Mary. She is a black woman who works in an elite corporate firm with eighty attorneys and twenty among them are partners. Among the partners, only two are black, and both are men. The organization has three female partners who are all white, and there are no Asian American, Native American, or Latino partners. As such, the firm is diverse at the associate level having fifteen female associates and among them is Mary. Three including Mary are black, two are Asian American, and one is Latina. The other three are white. Mary, alongside other five associates, is up for partnership, and her yearly reviews are strong. She has been praised for her contribution to the firm and told to be on track, but being track was not a guarantee for making partnership. The associate committee recommended that the organization promotes all the six associates, but the partners voted for only four; one black man, one Asian American man, one white man, and one white woman. Mary was not considered for a partnership that made her sue the firm for unfair treatment discrimination (Gulati & Carbado, 2001).
The main aspects pointed out by Mary in her case are racial discrimination, sex discrimination, and race and sex discrimination. Mary lacked evidence used against her by the employer and could not identify any specific information used against her. The court ruled for the firm and rejected all her claims. For race discrimination, there was no evidence of intentional discrimination against her or that the firm dislikes blacks since it considered one African-American. The organization has a history of promoting two African-Americans in the past and that both partners took part in the determination of partners and never cited any form of discriminatory approach to the issue. Thus, it would be challenging to associate the firm with discrimination considering that blacks have been promoted in the past. A similar argument was used on the gender-based discrimination claim where the court dismissed it.
The issue of cognizability was applied to explain that while Mary could argue that the organization discriminated against her by race and sex, she may not argue it based on the two aspects. The court explained that legislative history does not have any classification of ‘black women’ as having greater standing than black male. As such, the creation of new classes of protected minorities does not apply in the court case as fronted by Mary. Black male and white female create a problem for black women who desire to be treated fairly. From the court ruling, it is evident that gender can not modify black’s experiences. Hence, the fact that Mary is a female does not make her receive special treatment other than other blacks whether male or female.
The court ruling sought to clarify that racism affects men and women in a similar manner and it is about hostility against black people (Gulati & Carbado, 2001). In a case where firm practices intra-racial distinctions, like hiring some black people and not others, the practice is not racial differences. It appears that Mary’s argument was discriminatory in nature by promoting intra-racial differences. She argued that the firm showed differences between black women and black men by favoring men which are discriminatory in nature. The court intended to conceptualize race without gender specificity and did not view what Mary considered as racial discrimination. If the organization in question promoted one black male, then it was not racially discriminatory.
Regarding Mary’s sex discrimination claim, the court analysis was based on essentialism. Race does not modify women experiences in the context, and the court assumed that an organization that engages in sex discrimination has a negative impact on all women and in a similar way. Thus, issues of intra-gender distinction did not arise in the court. For such differences to arise, the firm may distinguish between black women and white women by favoring the latter in which it would be discriminatory. The court essentialized gender and did not view the preference identified by Mary as gender discrimination. The court could not identify that a sexist firm may promote some women like Whites and not others who are blacks. As such, the experiences of black women are regarded as discriminatory only if they are similar to what other black men or women go through which may be a general view to the issue and beyond redress by the law.