A recent decision by the U.S. 10th Circuit Court of Appeals—which covers Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming—suggests that, following Bostock, courts may begin to recognize new claims or even reconsider previous limitations on Title VII’s scope.

Facts and Findings

Layoffs occurred after Affinity Gaming Black Hawk, LLC, acquired the Golden Mardi Gras Casino in 2012. Eight women who were 40 or older filed “sex-plus-age” disparate impact and disparate treatment claims against Affinity under Title VII and the Age Discrimination in Employment Act (ADEA), alleging the buyer discriminated against women over 40.

The district court granted Affinity’s request to dismiss the sex-plus-age claims under Title VII and the ADEA disparate impact claim, then later granted summary judgment (dismissal without a trial) in the employer’s favor on the ADEA disparate treatment claim.

On appeal, the 10th 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.

10th Circuit’s Analysis and Intersectional Discrimination

At the outset, the 10th Circuit recognized that although several district courts and the Equal Employment Opportunity Commission (EEOC) 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 found those kinds of claims are pursuable under Title VII, even though relief is also available under the ADEA...

Source: HR Daily Advisor