Court Permits Sex-Plus Age Lawsuit Under Title VII Relying on Research That Finds More Robust Evidence of Age Discrimination Against Older Women than Older Men

In Frappied v. Affinity Gaming, the Tenth Circuit allowed “sex-plus-age” employment discrimination claims under Title VII. The relevant underlying scenario involved eight Casino female employees who were terminated by Affinity in 2013. Plaintiffs were employed at the Golden Mardi Gras Casino (“the Casino”). Affinity 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 on Craigslist listing 59 open positions. The female plaintiffs brought “sex-plus-age” disparate impact and disparate treatment claims under Title VII, alleging they were terminated because Affinity discriminated against women over forty.

The lower court dismissed both the disparate impact and disparate treatments claims. The Tenth Circuit Court of Appeals reversed the lower court’s dismissal of the plaintiff’s Title VII sex-plus-age disparate impact claim but affirmed the lower court on its ruling which dismissed the plaintiffs’ disparate treatment claim. The Court found as to the disparate treatment claims, because the plaintiffs alleged no other facts that would give rise to an inference of disparate treatment of women over forty as compared to men over forty, that plaintiffs failed to state a plausible Title VII sex-plus-age disparate treatment claim.

As for the disparate impact claims, the Tenth Circuit reversed the lower court’s dismissal of that action. In so doing, the Court on appeal rejected the employer, Affinity Gaming’s position that because Title VII does not include “age” as a protected classification, the plaintiffs were required to assert two separate causes of action: one for sex discrimination under Title VII, which is a protected classification under Title VII; and another separate claim under the ADEA for age discrimination, which exclusivley prohibits discrimination based on age.

The Court reasoned so long as sex plays a role in the employment action, it has no significance that a factor other than sex might also be at work, even if that other factor plays a more important role than sex in the employer’s decision.

No other circuit court has yet addressed whether Title VII permits sex-plus-age discrimination.The Court relied on a body of research that shows older women are subjected to unique discrimination resulting from sex stereotypes associated with their status as older women. This discrimination is distinct from age discrimination standing alone. “The intersectionality of two immutable characteristics is not the same as simply possessing two separate characteristics.” While an individual can be both “old” and be a “woman,: being an “older woman” is substantively different.

The Court determined that recognizing claims for “intersectional” discrimination best effectuates congressional intent to prohibit discrimination based on streotypes. Intersectional discrimination against older women is a form of discrimination based on sex stereotypes that Title VII was intended to prohibit. And discrimination against older women that does not target older men is a form of sex discrimination.

This case is significant for several reasons. First, it is the first time a federal appellate court has rcognized a sex-plus-age claim. And second, it is one of the first decisions to apply the legal analysis of Title VII underlying the landmark United States Supreme Court Bostock (2020) decision (which interpreted “sex” under Title VII to include sexual orientation and transgender status) to focus on the individual, rather than a class. This case demonstrates the reach of the Bostock decision beyond LBGQT rights.

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