Date: August 31, 2020

Many employers are currently considering workforce reductions due to the impact of COVID-19. As a result of recent court decisions which expand the scope of Title VII of the Civil Rights Act of 1964, employers now need to be even more vigilant when reviewing their termination decisions.

In June, the United States Supreme Court in Bostock v. Clayton County, Georgia ruled that Title VII’s prohibition of sex discrimination covers the LGBT community. Now, the United States Court of Appeals for the 10th Circuit in Frappied v. Affinity Gaming Black Hawk, LLC, No. 19-1063 (10th Cir. 2020) has held that Title VII also covers “sex-plus-age” disparate impact (where a facially neutral policy has a great impact on people in a protected class) and disparate treatment claims.

In Frappied, plaintiffs alleged that the defendant discriminated against older women as part of a reduction in force. While several trial court decisions and the United States Equal Employment Opportunity Commission recognize sex-plus-age claims, Frappied is the first federal appellate court to recognize this cause of action. The court held that such claims are cognizable under Title VII even though they are also available under the ADEA, the federal law protecting employees from age discrimination. The court confirmed that “if changing the employee’s sex would have yielded a different choice by the employer, a statutory violation has occurred.” In other words, this selection would have resulted “because of sex” if the employer would not have terminated a male employee with the same “plus” category, even if the plus category, here age, is not a protected class under Title VII.

The 10th Circuit also noted that its conclusion is consistent with Title VII’s legislative purpose of striking at the entire spectrum of disparate treatment of men and women resulting from sexual stereotypes. It is not difficult to imagine, for example, a casino letting older women go as cocktail waitresses and discriminating against them because of the combination of their gender and age would actionable according to Frappied.

What is the takeaway? If your company is considering downsizing, be sure to analyze not only the impact the layoffs may have on protected categories of employees, such as age, race and gender, but also on the LGBT community and “plus” categories.