- COMPOUND DISCRIMINATION AND SEX PLUS
- Compound Discrimination
Compound discrimination aggregates protected classifications so that offenses may be added together to amount to a legal violation though the offenses directed at any one protected classification may be insufficient standing alone. Thus the race-based offenses and the religious offenses directed at Boyd may be combined with each other to create a cause of action or added to the gender-based offenses to strengthen that claim. Hafford v. Seidner, 183 F.3d 506 (6th Cir. 1999), provides an example where the appellate court found that the animus based on the plaintiff’s Muslim religion was not enough to create its own claim but augmented the race claim and should be viewed in combination with it.
In another case, a trial court considering the discrimination claim of an Asian woman looked for racism alone, looked for sexism alone, found neither and dismissed the case. In reversing, the court of appeals held that the trial court “misconceived important legal principles”and that attempting “to bisect a person’s identity at the intersection of race and gender often distorts and ignores the particular nature of their experiences.” Lam v. University of Hawaii, 40 F.3d 1551, 1561-62 (9th Cir. 1994). The race and gender issues, added together, created a cause of action.
Other cases recognize that age protected women can be subject to discrimination that differs from discrimination based on either gender or age alone. Good v. U.S. West Communications, 1995 U.S. Dist. LEXIS 1968 (D. Or. 1995); Arnett v. Aspin, 846 F. Supp. 1234, 1237 (E.D. Pa. 1994).
Vance v. Southern Bell T&T Co., 863 F.2d 1503 (11th Cir. 1989), cautions against a Balkanization strategy requiring instead that the Court consider the “totality of the circumstances.” The cause of action may consist of many or few statements and acts, which, taken together, constitute the discriminatory offense. In assessing the credibility and weight of the evidence, the jury will not “examine each alleged incident of harassment in a vacuum.” The discrimination suit is “a single cause of action rather than a sum total of a number of mutually distinct causes of action to be judged each on its own merits.” Id. at 1510-11. See also, Oncale v. Sundowner Offshore Services, Inc., 118 S. Ct. 998, 103 (1998) (court must consider the “entire constellation of surrounding circumstances” when analyzing sufficiency of plaintiff’s evidence).
Our court of appeals has repeatedly cautioned us against fragmentation of claims or facts where a view of the totality shows unlawful discrimination that no single fragment will reveal by itself. Bass v. Orange County, 256 F.3d 1095, 1118 (11th Cir. 2001) (“While the other actions might not have individually risen to the level of adverse employment action under Title VII, when those actions are considered collectively, the total weight of them does constitute an adverse employment action.”) See also Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir.1998) (“It is enough to conclude, as we do, that the actions about which Wideman complains considered collectively are sufficient to constitute prohibited discrimination. We need not and do not decide whether anything less than the totality of the alleged reprisals would be sufficient.”).
- Sex Plus
Sex plus differs from compound discrimination primarily in that the “plus” need not be another statutorily protected characteristic but can be any second attribute that creates a subclass of targeted females in a given workplace, even a subclass of one. For example, in the Supreme Court’s initial recognition of the concept, the employer did not discriminate against women per se but against women with pre-school age children. Phillips v. Martin -Marietta Corp., 400 U.S. 542 (1971). See also, Jacobs v. Martin Sweets Co., 550 F.2d 364 (6th Cir. 1977) (refusing to hire unmarried pregnant females); Sprogis v. United Air Lines, 444 F.2d 1194 (7th Cir. 1971) (refusing to hire married females).
Discrimination based upon gender plus race is frequently analyzed under the “sex plus” rubric though it might just as easily qualify as compound discrimination. A leading example in our jurisdiction is Jeffries v. Harris County Community Action Association, 615 F.2d 1025, 1034 (5th Cir. 1980), where discrimination against black women easily crossed the line of legality though it was insufficient to qualify as either race or gender discrimination. It was the combination of two forms of discrimination that established the cause of action.
Whether one analyzes the combined impact of sex, race, and religion as compound discrimination or sex plus, there is more than enough such discrimination in this record to establish one or more causes of action falling comfortably within the theoretical framework of the cases cited above.