10th Circuit Says Title VII Allows “Sex-Plus-Age” Claims
Casino case decision incorporates landmark Supreme Court ruling on LGBT discrimination

by Jessica Folker
The Byron White courthouse in Denver

The 10th Circuit Court of Appeals on July 21 ruled that Title VII prohibits “sex-plus-age” discrimination, making it the first circuit court to address the issue and one of the first to apply the U.S. Supreme Court’s landmark decision in Bostock v. Clayton County.

The case, Frappied v. Affinity Gaming Black Hawk, was brought by former employees of the Golden Mardi Gras Casino in Black Hawk who were laid off in early 2013 after Affinity bought the casino and took over its operations. Eight of the plaintiffs are women over age 40 who brought claims under the Age Discrimination in Employment Act of 1967 as well as “sex-plus-age” disparate impact and disparate treatment claims under Title VII, alleging they lost their jobs because Affinity discriminated against older women.

The district court dismissed the plaintiffs’ Title VII disparate treatment claim, in part because it concluded sex-plus-age claims are not cognizable under Title VII — a conclusion the 10th Circuit panel said was “erroneous.”

While the sex-plus-age scenario hadn’t been addressed by a circuit court before, “sex-plus” claims are nothing new. In 1971, the U.S. Supreme Court ruled in Phillips v. Martin Marietta that Title VII forbids sex-plus discrimination where the second characteristic is not protected under the statute. In that case, the Supreme Court ruled the employer violated Title VII because it had two different hiring policies for women with pre-school-age children and men with children the same age.

In its opinion, the 10th Circuit also acknowledged Title VII prohibits discrimination based on a combination of characteristics protected by the statute, such as sex-plus-race.

 

The complete version of this article appears in the Aug. 10 issue of Law Week Colorado. To read the rest of this, and other articles, from that issue, order a copy online. Subscribers can request a digital PDF of the issue.