What is “sex-plus” discrimination and why are these employment claims on the rise?

gender discrimination lawyer; Bachman Law; Eric Bachman

“Sex-plus” discrimination claims expand Title VII’s protection to subgroups of employees who suffer discrimination based on multiple characteristics. Although these claims have typically been harder to prove than those based on one characteristic alone, two recent court decisions may lead to increased use of sex-plus claims in litigation.

Sex-Plus Discrimination Defined

Title VII of the 1964 Civil Rights Act prohibits an employer from discriminating against an employee because of their race, color, religion, sex, or national origin. Sex-plus discrimination occurs when an employer discriminates against an employee because of their sex plus another factor. This discrimination most often occurs toward women. Courts have not yet addressed claims for sex-plus discrimination against nonbinary, transgender, or intersex individuals, but Title VII may prohibit sex-plus discrimination against these individuals as well.

When an employee alleges sex-plus discrimination, the factor involved other than sex may be:

·      another characteristic protected by Title VII, such as race or religion;

·      one protected by another federal statute, such as age; or

·      it could be a characteristic not protected by any federal statute, such as status as a caregiver or hairstyle.

In a sex-plus claim, an employee alleges that sex was one of two factors that contributed to the adverse employment action. To illustrate, suppose an employer did not discriminate against all female employees but did discriminate against Black female employees. If the employer did not discriminate against similarly situated Black male employees, then the discrimination would not have occurred but-for the employee’s sex.

The Supreme Court recently clarified in Bostock v. Clayton County that the but-for causation standard for Title VII sex discrimination claims means that as long as sex was one of multiple factors that contributed to an employer’s decision to take an adverse action, the employer cannot avoid liability by attributing its decision to a different factor. To trigger Title VII liability, sex need not have been the sole factor that led to the employer’s decision – instead, sex need only have been a factor that either worked alone or in combination with others in the decision-making process.

The damaging effects of sex-plus discrimination in the workplace are undeniable. For example, the Washington Post recently reported that Black women working in Washington, DC lose an estimated $2 million because of the wage gap.

A Look At Courts’ Consideration Of Sex-Plus Claims

Sex-plus discrimination claims play an important role in expanding the anti-discrimination protections under Title VII. Sex-plus claims fight more nuanced discrimination and recognize that actionable discrimination goes beyond Title VII’s specifically named, protected classes and includes smaller subsets of these classes.

For example, the Supreme Court first recognized sex-plus discrimination in its 1971 decision in Phillips v. Martin Marietta Corp., where it held an employer could not refuse to hire women with preschool-aged children while it hired men with children of the same age. The female plaintiff did not allege pure sex discrimination because a majority of the applicants accepted for the position she sought were women; instead she alleged discrimination based on sex and caregiving status combined.

Nearly ten years later, in Jefferies v. Harris County Community Action Associationthe Fifth Circuit held that a Black female employee stated a claim for discrimination based on her sex and race and recognized Black females as a unique subgroup protected by Title VII. The court held that the district court had erred where it separately addressed the employee’s sex and race claims, rather than assessing the collective weight of the claims.

This month, in Frappied v. Affinity Gaming Black Hawk, LLCthe Tenth Circuit held that women over 40 who had worked at and been terminated from a casino could allege sex-plus-age discrimination under Title VII. The court wrote that “[l]ike any other sex-plus plaintiff, a sex-plus age plaintiff must show unfavorable treatment relative to an employee of the opposite sex who also shares the ‘plus-’ characteristic.” In doing so, the Tenth Circuit became the first federal circuit court to recognize a claim for such discrimination. The court wrote that older women are subject to “unique” discrimination based on the combination of their age and their sex, which is distinct from either sex or age discrimination alone.

The Intersection Of Discrimination As An Opportunity For Progress

Where sex-plus discrimination involves two characteristics protected by Title VII, such as sex and race, courts are likely to agree that this states a claim of discrimination under Title VII. But courts are more undecided as to sex-plus claims where the other factor is protected by another statute, such as age, or not protected by federal law at all, such as hairstyle. For example, courts that have rejected sex-plus-age discrimination claims have pointed to Title VII and the Age Discrimination in Employment Act’s (ADEA) differing burdens of proof as a reason why they have not recognized these claims when an employee has presented them in combination.

But the Tenth Circuit’s decision in Frappied and the Supreme Court’s decision in Bostock point to future cases recognizing broader claims of sex-plus discrimination. These decisions present an opportunity for employees who face unique discrimination to bring claims under Title VII and succeed if sex was one of multiple factors. This in turn should prevent employers from prevailing simply because they did not act indiscriminately against an entire protected class, which will help root out more discrete forms of discrimination in the workplace.

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