10th Cir.: 'Sex-plus-age' discrimination claims allowed under Title VII

Dive Brief:

Employees may sue their employers under Title VII of the 1964 Civil Rights Act for "sex-plus-age" discrimination, defined as discrimination that is based on a combination of an employee's sex and age, the 10th U.S. Circuit Court of Appeals held last month (Frappied v. Affinity Gaming Black Hawk, No. 19-1063 (10th Cir. July 21, 2020)).
In the decision, which involved discrimination claims brought by a group of fired Colorado casino workers, the court specifically referenced the recent U.S. Supreme Court decision in Bostock v. Clayton County, Georgia. The Bostock decision articulated that, in determining whether a person is subjected to Title VII-prohibited discrimination, "'our focus should be on individuals, not groups.'" The 10th Circuit said this means a sex-plus plaintiff doesn’t need to show discrimination against his or her entire subclass, i.e. men or women.
"Instead, if a female plaintiff shows that she would not have been terminated if she had been a man — in other words, if she would not have been terminated but for her sex — this showing is sufficient to establish liability under Title VII," the 10th Circuit said. The court added that "no circuit court has yet addressed whether Title VII prohibits sex-plus-age discrimination," but it concluded that such claims are "cognizable" under the law.

Dive Insight:

The decision is "significant," being one of the first to apply the legal analysis of the Supreme Court's Bostock decision, Fiona W. Ong, partner at management-side firm Shawe Rosenthal, wrote in an analysis of Frappied.

"Moreover, the fact that the Age Discrimination in Employment Act provides relief for age discrimination claims does not prevent a plaintiff from asserting a sex-plus-age claim under Title VII, as the two statutes address different types of discrimination," Ong said. "The Tenth Circuit rejected the argument that all discrimination claims with an age-related component must be brought under the ADEA, noting that the ADEA was intended to broaden protections for workers, not to limit them."

Sources who previously spoke to HR Dive after Bostock noted that many of the landmark ruling's implications have yet to be hashed out. Workplace issues including dress codes, bathroom access, locker room access and pronoun policies were not specifically addressed by the high court in June, and it may take further litigation before employers have more clarity about their legal obligations under Title VII.