Title VII Covers Intersectional “Sex-Plus-Age” Claims

For the first time, a federal appellate court has recognized that Title VII prohibits discrimination on the basis of sex-plus-age – in agreement with the Equal Employment Opportunity Commission’s previously-asserted prohibition on intersectional discrimination.

In Frappied v. Affinity Gaming Black Hawk, Inc., the U.S. Court of Appeals for the Tenth Circuit addressed sex-plus-age claims brought by a group of older women whose employment had been terminated. The Tenth Circuit first noted that Title VII prohibits discrimination based on race, color, sex, religion and national origin, including any combination of those characteristics. The Tenth Circuit further found that Title VII prohibits “sex-plus” discrimination where the “plus” characteristic is not covered by Title VII or, indeed, any other statute. The Tenth Circuit relied upon the recent Supreme Court opinion in Bostock v. Clayton County, Ga., in stating, “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 play[s] a more important role [than sex] in the employer’s decision.” (Internal quotations omitted).

The Tenth Circuit went on to note that its prior caselaw, which required that a female sex-plus plaintiff prove that the subclass of women to which she belongs was treated unfavorably as compared to the plus-equivalent subclass of males, was not in line with Bostock’s focus on individual discrimination. A female need only show that she was terminated because of her sex – and not that the employer discriminated against her entire subclass.

Moreover, the fact that the Age Discrimination in Employment Act provides relief for age discrimination claims does not prevent a plaintiff from asserting a sex-plus-age claim under Title VII, as the two statutes address different types of discrimination. The Tenth Circuit rejected the argument that all discrimination claims with an age-related component must be brought under the ADEA, noting that the ADEA was intended to broaden protections for workers, not to limit them.

Takeaways: This case is significant for several reasons. First, it constitutes the first recognition of a sex-plus-age claim by a federal appellate court. And second, it is one of the first decisions to apply the legal analysis of Title VII underlying the landmark Bostock decision (which interpreted “sex” under Title VII to include sexual orientation and transgender status) to focus on the individual, rather than a class. As this court recognized, this change in focus will expand the field of those protected by Title VII.