Compound Discrimination: The Interaction of Race and Sex in Employment Discrimination

The courts have not yet clearly resolved whether Title VII of the Civil Rights Act of 1964 prohibits compound discrimination, that is, discrimination based on a combination of protected characteristics—such as race and sex-rather than single protected characteristics—such as race alone or sex alone. Professor Shoben argues that both the logic and the legislative history of Title VII support the view that compound discrimination is separately protected. She then offers a systematic method for statistically determining whether an employer is discriminating on the basis of a combination of characteristics. Finally, Professor Shoben considers whether single plaintiffs can, consistently with rule 23 of the Federal Rules of Civil Procedure, adequately represent the claims of all class members when both compound and double discrimination are alleged. She concludes that courts should certify such classes and reserve subclassing until actual conflicts of interest arise between class representatives and other class members