‘Sex-Plus-Age’ Claim Reinstated

By Jeffrey Rhodes August 12, 2020
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The 10th U.S. Circuit Court of Appeals reinstated a novel "sex-plus-age" claim for older female casino workers who alleged that more of them were fired than older male workers.

The plaintiffs were employed at Golden Mardi Gras Casino. Affinity Gaming Black Hawk LLC purchased the casino in early 2012 and took over its operations in November 2012. In January 2013, Affinity laid off many of the casino's employees. The terminations were not a reduction in force, and Affinity posted an advertisement listing 59 open positions.

Nine casino employees terminated by Affinity in January 2013 filed a federal lawsuit against it. All were age 40 or older when they were terminated; eight were women and one was a man. The female plaintiffs brought sex-plus-age disparate impact and disparate treatment claims under Title VII of the Civil Rights Act of 1964, alleging that they were terminated because Affinity discriminated against women over age 40. All nine plaintiffs brought disparate impact and disparate treatment claims under the Age Discrimination in Employment Act (ADEA), alleging that they were terminated because of their age.

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

Affinity filed a motion to dismiss the Title VII sex-plus-age claims and the ADEA disparate impact claim. The district court granted the motion to dismiss and denied the plaintiffs' motion for reconsideration of the dismissal of their ADEA disparate impact claim. Affinity filed a motion for summary judgment against the remaining ADEA disparate treatment claim, which the court granted. The plaintiffs appealed all these decisions.

On appeal, the 10th Circuit considered a sex-plus claim to be a sex-discrimination claim that alleges that the discrimination was based only in part on sex. A female sex-plus plaintiff must show that her employer treated her unfavorably relative to a male employee who also shares the "plus" characteristic. For example, an employer that fires every female employee who is a Yankees fan, but does not fire its male employees who are Yankees fans, would violate Title VII under a sex-plus standard—even though it is otherwise legal to fire Yankees fans of both sexes.

The 10th Circuit considered what a sex-plus-age claim means and how it corresponds to Title VII case law. No circuit court had yet addressed whether Title VII prohibits sex-plus-age discrimination, yet several district courts and the Equal Employment Opportunity Commission had accepted their viability.

Affinity argued that Congress did not intend to allow sex-plus-age claims under Title VII because the ADEA and Title VII are structured differently, involve different burdens of proof and provide different remedies. However, the appeals court reasoned that just because discrimination against the "plus" characteristic (age) is prohibited by the ADEA does not mean that such claims must be brought under the ADEA. Rather, sex is still a partial consideration, and the claim can be brought under Title VII.

The appeals court disagreed with the district court for dismissing the female plaintiffs' sex-plus-age disparate impact claim solely because it concluded the claim could not be brought under Title VII. Because the district court did not analyze it further, the 10th Circuit reversed dismissal and reinstated the claim

Regarding the female plaintiffs' sex-plus-age disparate treatment claim, the 10th Circuit determined that the plaintiffs failed to allege plausible sex-plus-age intentional discrimination by Affinity.

The 10th Circuit decided that the statistics did support the claim that older casino employees were disproportionately terminated by Affinity, and thus reversed the dismissal of the ADEA disparate impact claim. The appeals court found the evidence of age discrimination so strong that it overturned the dismissal of the ADEA disparate treatment claim at summary judgment and ordered that it must go to trial.

Frappied v. Affinity Gaming Black Hawk LLC, 10th Cir., No. 19-1063 (July 21, 2020).

Professional Pointer: In recent years, creative plaintiffs' counsel have asserted new types of intersectional discrimination or "plus" claims that assert that a subset of traditional Title VII groups, like older women, are treated worse than a similar "plus" group (e.g., older men). Courts have started recognizing these claims and allowing them to move forward.

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.

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