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Women Plaintiffs ‘Sex-Plus-Age’ Discrimination Claim Stands

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A new precedent was set by the Tenth Circuit Court of Appeals earlier this month when the federal circuit court covering Oklahoma ruled that Title VII of the Civil Rights Act of 1964 permits “sex-plus-age” claims. 

The plaintiffs in the case were employed at the Golden Mardi Gras Casino, which was purchased by Affinity in early 2012. According to the complaint, “in January 2013 Affinity laid off many of the Casino’s employees. After the terminations, Affinity posted a job ad on Craigslist for 59 open positions. The plaintiffs are nine Casino employees terminated in January 2013. Eight are women; one is a man. All were forty or older when they were terminated. The female plaintiffs brought “sex-plus-age” disparate impact and disparate treatment claims under Title VII, alleging they were terminated because Affinity discriminated against women over forty. All nine plaintiffs brought disparate impact and disparate treatment claims under the ADEA, alleging they were terminated because of their age.”

What makes this case interesting is the Tenth Circuit Court of Appeal’s determination that sex-plus-age claims are cognizable under Title VII, the federal law that makes it unlawful for an employer to discharge or discriminate against an individual because of such individual’s race, color, religion, sex, or national origin. Title VII does not include protections for age, which is covered by the Age Discrimination in Employment Act. 

In this case, a “sex-plus” employment discrimination claim (also referred to as “intersectional discrimination”) involves an employee who alleges their employer treated them differently because they are women over 40. 

Coined by Kimberlé Crenshaw in 1989, intersectionality described how race, class, gender, and other individual characteristics “intersect” with one another and overlap. In her original paper “Demarginalizing the Intersection of Race and Sex” published in the University of Chicago Legal Forum, Crenshaw wrote, “Because the intersectional experience is greater than the sum of racism and sexism, any analysis that does not take intersectionality into account cannot sufficiently address the particular manner in which Black women are subordinated.”

Despite more than 50 years of Title VII protections under the EEOC, plus age protections under the ADEA, when it comes to employment, minority women over 50 are the most likely to be negatively impacted. Even now, the banner for equality and non-discrimination is at the forefront of our Nation’s mind. In fact, one might argue that if there was ever a time that the U.S. public was open to a dialogue about what equity really means across the board and what it takes to get there, it would be now.

“In order to address this persistent inequality, we must set substantive equality as our goal,” writes Ben Smith in his paper Intersectional Discrimination and Substantive Equality: A Comparative and Theoretical Perspective. “Doing so allows us to approach inequality as a problem of structural power, which creates and perpetuates systems of privilege and disadvantage in society. By developing an understanding of intersectionality, particularly through the recognition of intersectional discrimination, the law will be able to better identify and eliminate the power dynamics perpetuating patterns of privilege and disadvantage.”

The recent Tenth Circuit Court ruling lays the groundwork for future claims of sex-plus-age, particularly for women who battle employment inequities on multiple fronts.

If you feel you have been discriminated against on the grounds of sex plus age, you may want to file an EEOC complaint or consult a labor and employment attorney.

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