Tenth Circuit First to Recognize “Sex-Plus-Age” Discrimination Claims

by Tina Harkness, Esq., SPHR, Director

Discrimination,  Hot Topics,  Legislation,  Risk Management

The U.S. Court of Appeals for the Tenth Circuit (over CO, KS, NM, OK, UT, and WY) became the first federal appeals court to recognize that workers can bring “sex-plus-age” discrimination claims under the Civil Rights Act of 1964 or Title VII. The court relied upon the U.S. Supreme Court’s recent decision in Bostock v. Clayton County (U.S. 2020) on LGBT rights under Title VII in making this decision.

In Bostock, the Supreme Court focused on prohibiting bias against individuals rather than groups. Applying Bostock, the Tenth Circuit lowered the bar for proving sex-plus-age or other intersectional bias claims. Under the new test, an older female worker need only show that she faced bias, she needn’t show that her employer discriminated against all older women at the company.

The case is Christine Frappied et al. v. Affinity Gaming Black Hawk LLC (10th Cir. 2020). Frappied and several older female workers sued Affinity Gaming alleging sex and age discrimination after losing their jobs. Affinity claimed they were fired for performance, misconduct, or attitude issues.

The Tenth Circuit and other circuits had previously accepted intersectional claims that combine two protected statuses under Title VII, like sex and race, and claims that merge a Title VII status and an unprotected status, such as sex and parenting or child-rearing. But the Tenth Circuit is the first circuit to rule on whether the “plus” status in an intersectional claim could be age, which is covered by a separate law, the Age Discrimination in Employment Act (ADEA). This decision opens the door to intersectional claims where the added status could be a disability under the Americans with Disabilities Act as well.

The Tenth Circuit said older workers can sue for sex-plus-age discrimination under Title VII even though they could sue under ADEA. This may be attractive to workers as the ADEA uses a higher but-for causation standard for proving age discrimination rather than the lower “motivating factor” standard that applies to most Title VII claims.

Employers should be aware of this case because it reduces the burden on workers to prove intersectional bias claims by saying they must show the discrimination against them, not all the workers at their company who share their combination of traits. In other words, female workers have to show discriminatory treatment relative to male coworkers who share the same “plus” status. For women alleging sex-plus-age claims, that means older men at the company.

About the author
Tina Harkness, Esq., SPHR, Director

Tina joined Employers Council as a staff attorney in the Employment Law Services Department in 1998. She became the Information Resource Manager in charge of legal publications in 2005 and Director of Employers Council’s Northern Regional Office in 2015. She is a frequent speaker and facilitates training of human resource professionals, managers, supervisors, and employees in legal issues in managing employees, harassment prevention, civil rights, managing employee medical issues, diversity, and other subjects. She specializes in legal counseling and represents management in a wide variety of legal matters.