July 21, 2020

Discrimination Lawsuits May be Getting Easier…to File (and Win)

My employer fires me. I am a woman. I am a Yankees fan (for purposes of this example). I had male coworkers who were also Yankees fans who were not fired. Believing my sex is the distinguishing factor, I file a suit alleging unlawful sex discrimination under Title VII of the Civil Rights Act of 1964.

“Wait!” shouts my employer. There are also plenty of women who were not fired. Sex had nothing to do with my termination.

Back to me.  Yes, but it was my sex PLUS my fan status for which you had disdain. Since sex was one of the two factors that were the basis for my termination, that violates Title VII of the Civil Rights Act of 1964.  Do I have a legal claim that can proceed to trial, requiring my former employer to put forth a defense?

Yes, ruled the 10th U.S. Circuit Court of Appeals. And if you think my example is far fetched, that is the exact example, including Yankees fan status, the court applied.

Now, before you panic, understand this concept is not entirely new. Nearly 50 years ago, the U.S. Supreme Court held that “an employer may not, in the absence of business necessity, refuse to hire women with pre-school-age children while hiring men with such children.” Sex does not have to be the sole reason for the adverse employment action, just reason.

Since then, many federal circuit courts have held that a claim based on two motives or bases that are legally protected under Title VII could also be actionable, such as sex and race.

The distinction in this case is the 10th Circuit has applied the “plus” rule to a status (age) that is protected under another federal law – the Age Discrimination in Employment Act or ADEA, not Title VII.  The 10th Circuit is the first federal court to address this issue.  Interestingly, when considering if age-plus claims are viable under the Age Discrimination in Employment Act, the majority of federal circuit courts that have considered the issue have held they are not. 

The implications could be vast when you consider the myriad legal protections such as age, military status, citizenship, disability, whistleblower status, seeking or using FMLA leave, and more. Just those six paired with each of the five protected classes under Title VII would comprise 30 legal bases upon which an employee can file suit.

Lessons?  The importance of documentation becomes more and more evident (see the August 13th news story). Let business needs drive your employment decisions. Do not let peripheral issues (political opinions, familial status, lifestyles, etc.) divert your attention.  Do not try to predict the future or wonder what an employee will or will not do. Focus on today: performance and productivity.