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New Sex-and-Age Bias Ruling Signals Reach of LGBT Worker Case

July 27, 2020, 9:05 AM

Older men and women can sue their employers for discrimination based on a combination of their sex and age, the Tenth Circuit said in a recent decision showing the broad reach of the U.S. Supreme Court’s landmark ruling on LGBT worker rights.

The U.S. Court of Appeals for the Tenth Circuit became the first federal appeals court to recognize that workers can bring “sex-plus-age” claims under federal civil rights law. It pointed to the high court’s discussion of the legal threshold for showing bias from Bostock v. Clayton County to support that conclusion.

In addition, the Tenth Circuit lowered the bar from its 1997 decision for proving sex-plus-age or other intersectional bias claims in light of Bostock’s focus on prohibiting bias against individuals rather than groups. Under the circuit’s new test, for example, an older female worker need only show that she faced bias, not show that her employer discriminated against all older women at the company.

The ruling illustrates how Bostock can prompt courts to extend Title VII of the 1964 Civil Right Act to recognize new claims or revisit prior decisions limiting the law’s protections, legal scholars said.

“This is a great example of the positive work that Bostock will do for all employment discrimination plaintiffs, not just LGBTQ plaintiffs,” said Kyle Velte, a discrimination law professor at the University of Kansas.

Plaintiffs’ attorney Lisa Sahli, who represents the workers in the Tenth Circuit case, said it’s unclear whether Bostock caused the court to recognize sex-plus-age claims, in part because the case was argued before the Supreme Court handed down its ruling. But the high court’s decision gave the Tenth Circuit the “imprimatur” to rule that way, she said.

Joshua Kirkpatrick of Littler Mendelson, who represents defendant Affinity Gaming Black Hawk in the Tenth Circuit case, didn’t respond to requests for comment.

‘Unique Discrimination’

The Tenth Circuit’s decision handed down last week stems from a lawsuit that Christine Frappied and several other older female workers brought against casino operator Affinity Gaming after they lost their jobs. They accused the company of firing them based on their gender and age, while the company claimed performance, misconduct, or attitude issues caused their terminations.

In its ruling, the Denver-based circuit court pointed to research showing older women face “unique discrimination” because of sex stereotypes associated with being older. That sex-plus-age bias is distinct from just age discrimination alone, the court said.

“There’s no question that older women are treated differently than men,” said Minna Kotkin, law professor and director of Brooklyn Law School’s Employment Law Clinic. “There are a million articles that bear this out statistically. The fact that the Tenth Circuit recognized it is excellent precedent.”

Like other federal appeals courts, the Tenth Circuit had previously accepted intersectional claims that combine two traits covered by Title VII, like sex and race. It similarly recognized claims that merge a trait protected by Title VII and a right not protected by a federal workplace statute, such as parenting or child rearing.

But no circuit had previously ruled on whether the “plus” trait in an intersectional claim could be age, which is covered by a separate law, the Age Discrimination in Employment Act.

The Tenth Circuit decision signals that courts will cite Bostock to extend the reach of Title VII to cover intersectional claims involving disability, which is protected by the Americans with Disabilities Act, said Jennifer Bennett Shinall, a Vanderbilt University law professor who focuses on gender and disability bias. That’s one part of the decision’s potential to expand discrimination protections, she said.

“The language in Bostock is extremely plaintiff friendly in a way we haven’t seen for 20 years,” Shinall said.

Demystifying Intersectionality

Justice Neil Gorsuch discussed intersectional claims in the court’s Bostock opinion without ever using the terms “intersectional” or “sex-plus.” Instead, he raised hypothetical situations, including an employment policy calling for the firing of female workers who are fans of the Yankees.

A termination under that policy, Gorsuch explained, would constitute sex discrimination because the employer would accept Yankee fandom from male workers. The termination wouldn’t happen absent the workers’ gender, meaning it satisfies Title VII’s requirement that sex be one of potentially multiple “but-for” causes of a discriminatory action, according to the high court’s opinion.

The Tenth Circuit said older workers can sue for sex-plus-age bias even though they could sue under ADEA, which also uses a but-for causation standard, for age discrimination. U.S. Circuit Judge Carlos Lucero wrote the panel’s unanimous ruling, joined by judges Gregory Phillips and Nancy Moritz. All three were appointed by Democratic presidents.

The Yankees fan hypothetical from Bostock shows up in the Tenth Circuit’s ruling, but the opinion also includes terms like “intersectional” and “sex-plus.” The circuit court’s clear and direct language will hopefully mean parties don’t have to “dance around” using those terms in court filings, said Ezra Young, a plaintiffs’ attorney who represents workers in bias cases.

“In practice, a lot of federal courts have been skeptical if you call it an intersectional or sex-plus claim,” Young said. “A way to win these cases has been to explain what’s going on without using those words.”

The decision gives employers an opportunity to consider addressing intersectionality in the workplace, said Rae Vann of the management-side law firm Carlton Fields. That could include potentially monitoring for bias against intersectional groups and discussing it in employee training materials, she said.

Proof by Comparison

The Tenth Circuit decision reduced 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. Bostock’s requirement to focus on individual bias required that change in circuit precedent, the court said.

On the other hand, the circuit court said Bostock reaffirmed its rule for who workers must compare themselves with to win sex-plus claims. Female workers have to show discriminatory treatment relative to male coworkers who share the same “plus” category, the court said. So for women bringing sex-plus-age claims, that means older men at the company.

But requiring that comparison falls short of dealing with the workers’ “pure intersectional claim” in which age and sex cannot be disentangled, said Susan Bisom-Rapp, co-author of the book “Lifetime Disadvantage, Discrimination and the Gendered Workforce.”

Female workers in the gaming industry are often required to wear highly gendered costumes and present themselves in ways that disadvantage older women, so it seems like the younger women would be the more appropriate group for comparison in the Tenth Circuit case, Bisom-Rapp said. Assessing whether bias was based on inextricably intertwined traits requires analytical flexibility to adjust for the particular workers and industries involved in each case, she said.

“It may just mean that our statutory regime is ill-designed to really embrace the problems of intersectional discrimination, at least when a Title VII factor overlaps with an age factor,” said Bisom-Rapp, a professor at Thomas Jefferson School of Law.

Indeed, the Tenth Circuit threw out the female workers’ sex-plus-age claim alleging Affinity Gaming intentionally treated them unfairly. They didn’t offer enough evidence to plausibly allege they were treated differently than older men, the court said.

The workers did win court approval to continue litigating their intersectional bias claim alleging the company’s personnel selection policy had a disparate impact on them. The court also revived their ADEA claims.

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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