Affirmation of Title VII Sex-Plus-Age Discrimination Claims: Expanding Intersectional Protections

Affirmation of Title VII Sex-Plus-Age Discrimination Claims: Expanding Intersectional Protections

Introduction

The case of Christine Frappied et al. v. Affinity Gaming Black Hawk, LLC adjudicated by the United States Court of Appeals for the Tenth Circuit on July 21, 2020, represents a significant development in employment discrimination law. The plaintiffs, comprising nine employees of the Golden Mardi Gras Casino, alleged wrongful termination based on age and sex, invoking both Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act (ADEA). The central issues revolved around whether discrimination based on the intersection of age and sex—referred to as "sex-plus-age"—is actionable under Title VII, especially in light of recent Supreme Court precedents.

Summary of the Judgment

The district court initially dismissed several of the plaintiffs' claims under Title VII and the ADEA, granting summary judgment in favor of Affinity Gaming on the ADEA disparate treatment claim. Upon appeal, the Tenth Circuit affirmed the dismissal of the Title VII disparate treatment claim but reversed the dismissal of the Title VII disparate impact and ADEA disparate impact claims, remanding them for further proceedings.

A pivotal aspect of the appellate decision was the court's recognition that "sex-plus-age" discrimination claims are indeed cognizable under Title VII. This decision marked an expansion of the legal understanding of intersectional discrimination, acknowledging that discrimination based on the combination of age and sex constitutes sex discrimination under Title VII, thereby broadening protections for older female employees.

Analysis

Precedents Cited

The judgment extensively referenced key precedents that shaped the court's reasoning:

  • Bostock v. Clayton County (2020): Affirmed that Title VII protects employees against discrimination based on sex, including cases where sex is a motivating factor alongside other characteristics.
  • PHILLIPS v. MARTIN MARIETTA CORP. (1971): Established that discrimination based on a combination of sex and another characteristic, even if the other characteristic isn't protected, is actionable under Title VII.
  • Coleman v. B-G Maintenance Management of Colorado, Inc. (1997): Held that Title VII prohibits discrimination against subclasses of women.
  • CHADWICK v. WELLPOINT, Inc. (2009): Clarified that "sex-plus" claims focus on individual discrimination rather than group characteristics.
  • Additional EEOC guidelines and various circuit court decisions were also considered to support the expansion of sex-plus discrimination claims.

Legal Reasoning

The court's legal reasoning hinged on interpreting Title VII's broad mandate to prevent sex discrimination, recognizing that discrimination based on the intersection of sex and age inherently involves sex discrimination. The court dismissed previous limitations that required plaintiffs to demonstrate discrimination against an entire subclass, instead emphasizing individual discrimination in line with Bostock's focus on individuals.

The court also addressed the defense's argument that ADEA claims should solely address age discrimination, clarifying that Title VII and ADEA address distinct harms and can coexist without Congress's intent to limit Title VII claims.

Furthermore, the court scrutinized the plaintiffs' statistical evidence, evaluating the validity and relevance of the presented p-values and the comparison groups used in the analysis. The court found that while the Title VII disparate impact claim was viable, the disparate treatment claim lacked sufficient individual-specific allegations to survive dismissal.

Impact

This judgment has far-reaching implications for employment discrimination law:

  • Intersectional Discrimination: Reinforces the legal framework for recognizing and addressing intersectional discrimination, particularly for individuals facing multiple protected characteristics.
  • Title VII Protections: Expands Title VII protections to explicitly include sex-plus-age discrimination, providing a more robust avenue for older female employees to seek redress.
  • Legal Precedent: Serves as a binding precedent within the Tenth Circuit, influencing lower courts to adopt similar interpretations and potentially guiding Supreme Court considerations on intersectional discrimination.
  • Employer Policies: Encourages employers to evaluate their termination and hiring practices more critically to ensure they do not inadvertently or deliberately engage in discriminatory practices based on intersecting protected classes.

Complex Concepts Simplified

Sex-Plus-Age Discrimination

Sex-Plus-Age Discrimination refers to unfair treatment of an employee based on both their sex and age. For instance, if a policy disproportionately affects older women more than older men or younger women, it may constitute sex-plus-age discrimination.

Disparate Impact vs. Disparate Treatment

Disparate Impact occurs when an employment practice appears neutral but disproportionately affects a protected group. Disparate Treatment involves intentional discrimination against individuals based on their protected characteristics.

Statistical Evidence in Discrimination Cases

Courts use statistical tools like the Fisher's Exact Test to determine if disparities in employment actions (like terminations) are likely due to discrimination rather than random chance. A low p-value (typically below 0.05) suggests the disparity is statistically significant.

McDonnell Douglas Framework

A three-step process used to assess claims of discrimination when there is no direct evidence. It involves establishing a prima facie case, the employer providing a legitimate reason, and the plaintiff proving that the employer's reason is a pretext for discrimination.

Conclusion

The Tenth Circuit's decision in Christine Frappied et al. v. Affinity Gaming Black Hawk, LLC marks a pivotal moment in employment discrimination law by affirming the viability of sex-plus-age claims under Title VII. This affirmation not only broadens the scope of protected classes but also underscores the importance of recognizing intersectional discrimination in legal practice. Employers must now be more vigilant in ensuring that their employment practices do not inadvertently discriminate against individuals based on multiple protected characteristics. For employees, especially older women, this judgment enhances the legal tools available to challenge discriminatory practices, fostering a more equitable workplace environment.

Case Details

Year: 2020
Court: UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

Judge(s)

LUCERO, Circuit Judge.

Attorney(S)

Lisa R. Sahli, Lisa R. Sahli, Attorney at Law, LLC, Littleton, Colorado, and Barry D. Roseman, Roseman Law Offices, LLC, Denver, Colorado for Plaintiffs-Appellants. Joshua B. Kirkpatrick (Jennifer S. Harpole and David C. Gartenberg, with him on the briefs), Littler Mendelson, P.C., Denver, Colorado for Defendant-Appellee. Daniel B. Kohrman and William Alvarado Rivera, AARP Foundation, Washington, D.C., filed an Amici Curiae brief for AARP and AARP Foundation, in support of Appellants. Darold W. Killmer and Liana Orshan, Killmer, Lane & Newman, LLP, Denver, Colorado, filed an Amici Curiae brief for the National Employment Lawyers Association and the Employee Rights Advocacy Institute for Law & Policy, in support of Appellants. James L. Lee, Deputy General Counsel, Jennifer S. Goldstein, Associate General Counsel, Elizabeth E. Theran, Assistant General Counsel, and Susan R. Oxford, Attorney, Equal Employment Opportunity Commission, Office of General Counsel, Washington, D.C., filed an Amicus Curiae brief for the Equal Employment Opportunity Commission, in support of Appellants.

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