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Tenth Circuit Oks Hybrid “sex plus age” Case

A small group of women brought suit against their former employer Golden Mardi Gras Casino for discriminating against women over 40. This “sex plus age” claim has been upheld for the first time by a circuit court.

These women had been employed by the casino until it was purchased by Affinity. Within a year of the new ownership, many employees were laid off. Not long after, Affinity posted openings for 59 positions at the casino. All of the eight women who brought suit were forty years or older at the time of the termination. These women asserted that they were fired because Affinity discriminated against women over 40. They brought suit under Title VII and the Age Discrimination in Employment Act (ADEA).

The Tenth Circuit Court of Appeals determined that Title VII protects “sex plus age” claims even though the statute does not offer protection for age claims. Recognizing the “intersectional discrimination” (a term describing how two protected characteristics intersect), the court looked at the Supreme Court’s recent decision in Bostock v. Clayton County. In that decision, the Supreme Court recognized that employers violated Title VII when their employment decisions are based, even in part, on sex. Title VII has been held to protect workers from other sex plus protected characteristics such as race or religion. In addition, the court asserted that there was “no material distinction between a sex-plus-age claim and the other sex-plus claims” that have been upheld such as marital status or having preschool-age children. These factors are also not protected categories but rather a part of sex stereotypes about women. In its opinion, the court noted research showing “older women are subject to unique discrimination resulting from sex stereotypes associated with their status as older women.” Upholding this intersectional discrimination will effectuate congressional intent to protect women from decisions based on sex stereotypes according to the court’s ruling.