Friday, July 31, 2020

10th Cir. recognizes intersectional discrimination ("sex-plus-age") cause of action

Title VII prohibits sex discrimination. But what about situations in which the employer discriminates against only some women? In SCOTUS's recent decision in Bostock, Justice Gorsuch gave the example of an employer with "a policy of firing any woman he discovers to be a Yankees fan;" concluding, such a termination would be "because of sex" in violation of Title VII. 

[Sidenote: Obviously employers should just fire *all* Yankees fans. Problem solved. ;-)]

Not official use.
The 10th Circuit recently issued its opinion in Frappied v. Affinity Gaming Black Hawk, LLC. The Court addressed "intersectional discrimination," and specifically whether Title VII permits a claim based on "sex-plus-age" discrimination. The female plaintiffs alleged that their employer discriminated against women over forty (i.e. not all women). 

The 10th Circuit became the first circuit court to recognize a cause of action for "sex-plus-age" discrimination under Title VII:
We hold that sex-plus-age claims are cognizable under Title VII. There is no material distinction between a sex-plus-age claim and the other sex-plus claims we have previously recognized for which the “plus-” characteristic is not protected under Title VII. Like claims for which the “plus-” factor is marital status or having preschool-age children, a sex-plus-age claim alleges discrimination against an employee because of sex and some other characteristic. It is thus a sex discrimination claim, albeit one that alleges that the discrimination was based only in part on sex . . . . Like any other sex-plus plaintiff, a sex-plusage plaintiff must show unfavorable treatment relative to an employee of the opposite sex who also shares the “plus-” characteristic. For the female sex-plus-age plaintiffs in this case, the relevant comparator would be an older man.
Notably, the Court's ruling appears to be an extension of Bostock, so I expect other circuits to follow suit. 

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