In the wake of the Supreme Court’s landmark ruling in Bostock v. Clayton County, Georgia, which extended federal statutory protections to the LGBT community, many have wondered how that decision might impact other employment litigation under Title VII of the Civil Rights Act of 1964. The Tenth Circuit’s recent decision in Frappied v. Affinity Gaming Black Hawk, LLC, No. 19-1063 (10th Cir. 2020), suggests that, following Bostock, courts may begin to recognize new claims or even reconsider prior limitations on Title VII’s scope.
In Frappied, the plaintiffs were employees of the Golden Mardi Gras Casino who were laid off when the casino was purchased by Affinity in 2012. Eight of the plaintiffs were women who were 40 or older. The female plaintiffs brought “sex-plus-age” disparate impact and disparate treatment claims against Affinity under Title VII and the Age Discrimination in Employment Act (ADEA), alleging that Affinity discriminated against women over 40. The district court granted Affinity’s motion to dismiss the sex-plus-age claims under Title VII and the ADEA disparate impact claim, then later granted summary judgment in favor of Affinity on the disparate treatment ADEA claim. The plaintiffs appealed, and the Tenth Circuit affirmed the dismissal of the Title VII disparate treatment claim but reversed the dismissal of the Title VII and ADEA disparate impact claims as well as the grant of summary judgment on the ADEA disparate treatment claim.
Tenth Circuit Analysis and Intersectional Discrimination
At the outset, the appellate court recognized that although several district courts and the Equal Employment Opportunity Commission recognize the validity of sex-plus-age claims, no federal appellate court had yet addressed whether Title VII prohibits sex-plus-age discrimination. The court held that such claims are cognizable under Title VII, even though relief is also available under the Age Discrimination in Employment Act (ADEA). In reaching this conclusion, the Tenth Circuit cited Bostock’s holding that, “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.” Notably, it did not matter that the “plus-” category, age, is not a protected classification under Title VII.
The Tenth Circuit also stated that its conclusion was consistent with Title VII’s legislative purpose of striking at the “entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” The court cited research showing that older women are subjected to “unique discrimination resulting from sex stereotypes associates with their status as older women,” reasoning that recognition of intersectional discrimination claims “best effectuates congressional intent to prohibit discrimination based on stereotypes.” The Court ultimately concluded that intersectional discrimination against older women is the sort of discrimination Title VII was intended to prohibit, and discrimination against older women that does not also target older men is unlawful.
Conclusion: Bostock and the Shifting Title VII Litigation Landscape
Ultimately, the Supreme Court’s decision in Bostock appears to be altering the landscape for Title VII litigation. Employers may begin seeing new types of claims as well as more creative arguments for coverage under Title VII. If Frappied is any guidepost, courts may be more receptive to new types of discrimination claims and may also revisit previous decisions limiting Title VII’s scope. This possible trend in employment litigation will merit close scrutiny over the coming months and years.