EEOC Seeks Assurance of Protections in Intersectional Sex–Age Discrimination Claim

On Tuesday, June 11, 2019, the Equal Employment Opportunity Commission (EEOC) filed an amicus curiae brief in Frappied et al. v. Affinity Gaming Black Hawk, LLC (No. 19-1063; 10th Cir.)—a case involving older casino workers who allege they were illegally terminated due to age under the Age Discrimination in Employment Act of 1967 (ADEA). Of particular note, female plaintiffs in the case additionally claimed they were unlawfully terminated due to the combination of their age (under ADEA) and gender under Title VII of the Civil Rights Act of 1964 (Title VII). In its brief, the EEOC argued that the district court erred in dismissing the older women’s Title VII claim earlier this year. The case is noteworthy in that it represents a rare instance of a cross-statute complaint invoking both the ADEA and Title VII.

Claims of discrimination that involve the combination of two or more protected classes (such as age and gender as in Frappied) have been referred to as “intersectional discrimination” by the EEOC. According to the Section 15: Race and Color Discrimination of the EEOC’s Compliance Manual:

Title VII prohibits discrimination not just because of one protected trait (e.g., race), but also because of the intersection of two or more protected bases (e.g., race and sex). For example, Title VII prohibits discrimination against African American women even if the employer does not discriminate against White women or African American men. Likewise, Title VII protects Asian American women from discrimination based on stereotypes and assumptions about them ‘even in the absence of discrimination against Asian American men or White women.’ The law also prohibits individuals from being subjected to discrimination because of the intersection of their race and a trait covered by another EEO statute – e.g., race and disability, or race and age.”

The courts have historically referred to such intersectional discrimination claims as “sex-plus” claims (e.g., sex-plus-race), and their interpretation of Title VII as it relates to these claims is complicated and has continued to evolve over the past several decades.

In Frappied, the district court took issue with the age aspect of the sex-plus-age claim, holding that “the scope of liability under the ADEA is narrower than that under Title VII.” However, in its amicus brief, the EEOC points out that in prior cases the “plus” factor in sex-plus claims has included characteristics not protected from discrimination by Title VII or other independent federal statutes (e.g., marital status). The EEOC views the ADEA’s more limited scope as immaterial to whether a sex-plus-age claim should stand and is looking to the Court of Appeals for the Tenth Circuit to reverse the district court’s ruling.

With this filing, the EEOC has signaled its commitment to ensuring that federal courts recognize intersectional discrimination claims under both Title VII and the ADEA. Indeed, in its ADEA @ 50: State of Age Discrimination Report, the EEOC stated that it “has long recognized the theory of ‘intersectional discrimination’ under both Title VII and the ADEA” (see also the 2006 EEOC Compliance Manual). This action also comes on the heels of the Office of Federal Contract Compliance Programs (OFCCP) stating last August in Directive (DIR) 2018-05 that they “may explore the interaction of sex and race” in their regression analyses of contractor compensation data.

Employers may want to watch the outcome of Frappied closely as it could underscore a need to expand the scope of proactive EEO analyses conducted (e.g., on hiring, pay, terminations) to include various combinations of protected classes of individuals that include age. Because intersectional claims of discrimination by definition involve smaller groups of individuals, having sufficiently large samples to conduct relevant statistical analyses may pose an obstacle to both plaintiffs attempting to establish evidence of discrimination and employers looking to conduct proactive analyses. As always, we recommend that employers reach out to their legal counsel to discuss these complex issues.

By Don Lustenberger, Ph.D., Senior Consultant, and Sarah Layman, M.S., Senior Consultant at DCI Consulting Group

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