11th Circ. Ruling Offers Refresher On 'Sex-Plus' Bias Claims

Here's a refresher: Discriminating against a subclass of a sex — e.g., older women or black women — may still be discrimination.

In a Sept. 19 opinion in McCreight v. AuburnBank, the U.S. Court of Appeals for the Eleventh Circuit clarified a few things for the summary judgment standard and provided a good refresher on "sex-plus" discrimination, or discrimination based on a subclass of sex.

Historical Backdrop of Sex-Plus Claims

Before we get to the Eleventh Circuit case, let's look at the history behind sex-plus discrimination claims.

In Phillips v. Martin Marietta Corp. in 1971, the U.S. Supreme Court examined whether an employer's rejection of job applications from women with preschool-age children could be sex discrimination when the employer accepted applications from other women.[1] The U.S. District Court for the Middle District of Florida had granted summary judgment in favor of the employer, and the U.S. Court of Appeals for the Fifth Circuit had affirmed.

In the short opinion, the Supreme Court held that Title VII "requires that persons of like qualifications be given employment opportunities irrespective of their sex" and, therefore, it is wrong to read Title VII "as permitting one hiring policy for women and another for men — each having pre-school-age children." The majority opinion left the possibility for employers to distinguish the policy as a bona fide occupational qualification if "[t]he existence of such conflicting family obligations" is "demonstrably more relevant to job performance."

However, in his concurring opinion, Justice Thurgood Marshall cautioned against "fall[ing] into the trap of assuming that [Title VII] permits ancient canards about the proper role of women to be a basis for discrimination" when Congress "sought just the opposite result."

After Phillips, several circuit courts invalidated employers' rules singling out certain subclasses, including the subclasses of married women and single women who became pregnant. The Fifth Circuit, in Jefferies v. Harris County Community Action Association in 1980, recapped the history since Phillips and made clear it would be sex-plus discrimination to "single out black women" for unfavorable treatment.[2]

The Facts in McCreight v. AuburnBank

Two plaintiffs, Julia McCreight and Rebecca Wester, sued their former employer, AuburnBank, and former manager alleging they were fired because they were older women and were retaliated against due to their complaints to human resources. According to the opinion, both plaintiffs were long-time employees, and, most recently, McCreight worked as a mortgage loan originator and Wester as a loan closer.

AuburnBank terminated McCreight after she failed to prequalify a borrower and, instead, approved him for the loan. Once the underwriter determined that the borrower did not qualify for the loan, AuburnBank was still contractually bound to issue the loan due to the letter McCreight sent. McCreight's mistake placed the bank at risk, and this was not her first serious error.

Similarly, Wester was terminated after a series of errors, including her failure to verify a loan applicant's employment. As it turns out, the borrower did not have a job, but the loan had closed and AuburnBank was obligated to that loan due to Wester's failure. The plaintiffs claim they were fired because they were older women and because they had complained to human resources about their manager. McCreight and Wester identified other examples of older women who had been fired or transferred by the manager, and McCreight also reported she heard the manager say he had "come to clean house" and wanted to hire younger mortgage loan operators.

The plaintiffs sued under Title VII for sex-plus-age discrimination, hostile work environment and retaliation. They also sued pursuant to federal and state age discrimination laws, and brought a variety of state tort claims. The Eleventh Circuit affirmed the district court's order in favor of the defendants, which dismissed all claims at summary judgment.

Sex-Plus Claims

What They Are

Sex-plus claims are sex discrimination claims alleging that a person has been discriminated against because of his or her sex and membership in a particular subgroup.[3] To succeed on a sex-plus claim, a plaintiff must demonstrate adverse treatment based on sex, but also show that not all members of the class were treated adversely. The "plus" part requires the discrimination to be more than solely based on sex, but it does not require the subgroup to be a protected class.

What They Are Not

Sex-plus claims are not claims that allege "more than one type of discrimination caus[ed] the adverse action," as the McCreight plaintiffs argued. Sex-plus claims must be supported by evidence of adverse treatment based on sex and the subgroup membership. They may be supported by either:

• A single-motive theory — i.e., my employer did this because I am a woman who is a mother; or
• A mixed-motive theory — i.e., my employer may have fired me because I messed up, but they would not have done so had I not been a woman who is a mother.

Both theories require evidentiary support — bits and pieces are not enough. Like generalized sex-discrimination claims, a plaintiff claiming sex-plus discrimination must show that sex played a role in their adverse employment action. There must be evidence that subgroup members of another sex are treated differently.

General evidence, such as the alleged comments and complaints, did not carry the day in the McCreight case. The Eleventh Circuit held that the plaintiffs failed to tie the adverse employment action to their sex. So, while comments may create an inference, sparse examples of animus toward a particular group are insufficient when the plaintiff fails to connect that animus to the adverse employment action at issue.

Takeaways

The Eleventh Circuit's McCreight ruling is a good reminder to employers to make sure their policies and their employees' actions are not treating a subgroup of employees of one sex differently than the same subgroup of another sex. It can be tricky and not always apparent, as it does not affect the whole group, and it is a developing area of the law in that not all circuits agree on what types of "plus" claims are cognizable.

For example, with a sex-plus-age claim, there is no age threshold or protected age group like there would be for an age discrimination claim under the Age Discrimination in Employment Act, and the causation standard is different under Title VII and the ADEA.

Thus, some federal courts have resisted recognizing a sex-plus-age claim and questioned whether allowing that claim would merely be a work-around for the ADEA's requirements of but-for causation.[4] On the other hand, other courts, including the U.S. Courts of Appeals for the Tenth and Eleventh Circuits, consider sex-plus-age claims distinct from ADEA claims.[5]

• Nonetheless, employers should keep an eye out for any policies or decisions that may implicate the below:
• Sex plus race;
• Sex plus age;
• Sex plus children (e.g., the individual has or does not have children);
• Sex plus family status or relationship status (e.g., the individual is or is not married); and
• Sex plus unmarried and pregnant.

To make sure you avoid the risk of sex-plus claims, do the following:

• Evaluate your policies.
• Train your managers.
• Treat all sexes the same across the board, regardless of stereotype or subgroup.

Finally, keep an eye out for updates involving "plus" discrimination of all types. While most other types of "plus" discrimination claims (race plus X), have not been adopted in the circuits, they are starting to pop up.[6]

Republished with permission. The full article, "11th Circ. Ruling Offers Refresher On 'Sex-Plus' Bias Claims," was published by Law360 on October 29, 2024.

[1] Phillips v. Martin Marietta Corporation, 400 U.S. 542 (1971).

[2] Jefferies v. Harris County Community Action Association, 615 F.2d 1025, 1034 (5th Cir. 1980).

[3] https://www.employmentlawinsights.com/2024/09/sex-plus-x-whats-that-discrimination/.

[4] See Best v. Johnson, 714 F. App'x 404 (5th Cir. 2018); Sevart v. Plains All American GP LLC, MO:21-cv-00086-DC, 2023 U.S. Dist. LEXIS 242805 (W.D. Tex. Apr. 2, 2023).

[5] Frappied v. Affinity Gaming Black Hawk LLC, 966 F.3d 1038, 1047-49 (10th Cir. 2020); Chambless v. Louisiana-Pacific Corporation,481 F.3d 1345 (11th Cir. 2007).

[6] See e.g., Stribling v. United Parcel Service Inc., Case No. 22-CV-495, 2024 U.S. Dist. LEXIS 82126 (E.D. Wis. May 3, 2024).