Hybrid 'sex-plus-age' claims permissible under Title VII, 10th Circuit rules

On July 21, 2020, the 10th Circuit (which covers Kansas and Oklahoma) became the first circuit court to rule Title VII of the Civil Rights Act of 1964 permits "sex-plus-age" claims.

Facts

A group of women who were previously employed at the Golden Mardi Gras Casino in Colorado filed "sex-plus-age" disparate impact and disparate treatment claims under Title VII alleging they were terminated because Affinity Gaming Black Hawk, LLC, discriminated against women over 40 years of age. They also filed separate claims under the Age Discrimination in Employment Act (ADEA) alleging they were fired because of their age.

Court's analysis

The 10th Circuit first analyzed whether sex-plus-age claims are capable of being heard under Title VII, the federal law that makes it unlawful for an employer to discharge or discriminate against an individual because of her race, color, religion, sex, or national origin. Title VII doesn't cover age.

Pointing to the U.S. Supreme Court's recent ruling in Bostock v. Clayton County, the 10th Circuit noted an employer violates Title VII when it intentionally fires an employee "based in part on sex." The law also prohibits discrimination based on a combination of Title VII-protected characteristics, such as "sex-plus-race."

In the present case, however, the sex-plus-age claim wasn't based on a combination of protected characteristics enumerated in Title VII. Rather, the "plus-" characteristic was age, which isn't a protected class under Title VII but is protected under the ADEA.