Studies show that older women are facing increasing employment discrimination because of the combination of age and sex biases. Based largely on the U.S. Supreme Court’s recent landmark ruling in Bostock v. Clayton County, which clarified that Title VII prohibits employment discrimination based on sexual orientation, the Tenth Circuit Court of Appeals recently ruled that older women can pursue “sex-plus-age” claims of discrimination under Title VII of the Civil Rights Act of 1964.
The Tenth Circuit’s rationale
In Frappied v. Affinity Gaming Black Hawk LLC, Case No. 19-1063 (July 21, 2020), the Tenth Circuit explained:
An ADEA [Age Discrimination in Employment Act] claim addresses discrimination against an older worker because of his or her age, whereas a Title VII sex-plus-claim brought by an older woman addresses discrimination against her because of her sex. In Bostock, the Court held, “if changing the employee’s sex would have yielded a different choice by the employer – a statutory violation has occurred.” . . . Thus, termination is “because of sex” if the employer would not have terminated a male employee with the same “plus-“ characteristic.
Significance for older women
This ruling, which is likely to be adopted by federal courts across the country, is significant for older women. As the Tenth Circuit noted: “Research 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. . . .One study, based on 40,000 job applications, found ‘much stronger and more robust evidence of age discrimination against older women than against older men.’”
The ruling is also significant because Title VII provides for compensatory and punitive damages which the ADEA does not provide. That allows women to recover damages for the emotional distress caused by a wrongful termination, for example.
Many predict that federal courts will recognize “sex-plus” claims based on a host of other “plus-” characteristics not enumerated in Title VII as long as the employee can show that sex was a motivating factor in the employer’s adverse employment action. That will expand the avenues for relief for employment discrimination experienced by women.
Women who are victimized by discrimination motivated by their sex need to make sure to raise “plus-“ claims in their EEOC and other complaint filings so the claims are not deemed untimely or waived.
Written by: Laura Lindner
For more than 27 years, Laura has represented employers in employment litigation cases. She is a tenacious and successful litigator who has tried many cases throughout the country and has resolved many disputes through tough, skilled negotiation. She is known for providing clients excellent advice, unmatched service, and steadfast emotional support throughout difficult employment situations.