Sex-Plus Age Claim Viable Under Title VII

In Frappied v. Affinity Gaming Black Hawk, the U.S. Court of Appeals for the Tenth Circuit became the first federal appeal s court to recognize that Title VII of the Civil Rights Act 1964 permits “sex-plus age” claims.  The case arose from a lawsuit filed against a gaming company.  The eight female plaintiffs alleged the casino for which they worked discriminated against women over 40 years old, and they brought several claims, including claims under Title VII.  The women had been terminated in a layoff, but allegedly discovered the casino advertising open positions shortly afterwards. 

Title VII does not prohibit age discrimination.  Age discrimination is covered by the Age Discrimination in Employment Act (ADEA).  Nevertheless, the Court found age as the “plus” factor to be no different from other cases in which courts have ruled that Title VII prohibits sex-plus discrimination when the “plus” characteristic was not covered by Title VII, such as treating men and women with school-age children differently.   

The Court did not agree that the sex-plus age plaintiffs already had a remedy under the ADEA.  In the Court’s view, age discrimination is different from age-plus age discrimination, and such a distinction is necessary to address sex-based stereotypes associated with older women. 

 Relying heavily on the U.S. Supreme Court’s recent ruling in Bostock v. Clayton County, which held that an employer who fires an employee for being gay or transgender violates Title VII, the Tenth Circuit decided that an employer violates Title VII if it terminates an employee “based in part” on sex, even if another “plus” factor may have been more important to the decision.

The Court drew on the hypothetical discussed in Bostock of an employer who fires any woman he learns is a Yankees fan.  If the employer fires an employee based on solely on their status as a Yankees fan, that is not prohibited by Title VII.  But if the employer only fires female Yankees fans, while tolerating Yankee fandom among male employees, it engages in prohibited discrimination because the terminations are based in part on sex. 

Also, focusing on Bostock’s requirement to the focus on individual discrimination rather than on groups, the Tenth Circuit changed its standard for establishing a sex-plus claim.  Previously, a female sex-plus plaintiff was required to prove that she belonged to a subclass of women that was unfavorably treated compared to a subclass of men.   The Court wrote that requirement no longer applied, and that all a female plaintiff need prove Title VII liability is 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.  Therefore, a sex-plus plaintiff needs to demonstrate less favorable treatment compared to an employee of the opposite sex who shares the “plus” characteristic.


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