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Title VII Sex Discrimination and “Plus” Claims


Title VII: An Overview

The State of Alabama is an at-will state, which means an individual can be terminated for any reason or no reason at all, but the reason cannot violate state or federal law. One such federal law, which provides protections for individuals in the employment arena, is Title VII of the Civil Rights Act of 1964, as amended (“Title VII”). 

Under Title VII, it is unlawful for employers to fail or refuse to hire or to discharge an individual, or to otherwise discriminate against any individual regarding compensation, terms, conditions, or privileges of employment due to the individual’s race, color, religion, sex, or national origin. On their face, the five protected characteristics or classifications appear fairly narrow. However, as with most laws, they are not quite so clear. One such ambiguity falls under the “sex” characteristic, in the form of “sex-plus” claims.

What are “sex-plus” claims?

Although “sex-plus” is not mentioned in the text of Title VII, caselaw has nonetheless clarified that Title VII permits such claims. Sex-plus claims arise when an employer discriminates against an employee based upon the employee’s sex, as well as a sex-neutral characteristic. For this claim to succeed the employee must be discriminated against on the basis of sex and then, in addition to sex, on the basis of a sex-neutral characteristic. Such characteristics include childcare and/or marriage.

Proving the Claim

An employee bringing a sex-plus claim must establish that the employer treated a subclass of the men/women who possess the “plus” characteristic differently from those without the characteristic. However, the ultimate question is whether the employer took an adverse employment action, such as termination or demotion, among others, at least in part due to the employee’s sex. 

A claim for sex-plus is analyzed using the McDonnell Douglas Burden Shifting Framework. Under this framework, the employee must first demonstrate that he/she is able to meet the necessary elements of the claim. Upon doing so, the burden shifts to the employer to demonstrate it had a legitimate reason, unrelated to discriminatory practices, that led to the adverse employment action taken against the employee. If the employer is able to do so, the burden shifts back to the employee to demonstrate that the employer’s stated reason(s) is not the real reason for the adverse action.

Is an employee required to provide evidence of a similarly situated male that was treated differently?

The short answer, not necessarily. Under the McDonnell Douglas framework noted above, the required elements for sex discrimination are that the employee (i) was a member of a protected class; (ii) was qualified for the job; (iii) suffered an adverse employment action; and (iv) was treated differently than or replaced by someone outside that same protected class. For example, if a female employee has children she provides care for and, after the supervisor harasses her for being a female with children and caring for those children, she is terminated, but a male employee who also has children who he cares for is not harassed and/or terminated, then such may evidence sex-plus discrimination in violation of Title VII. 

However, what if the employee is not aware of and/or cannot provide a comparator? In the example above, what if there was not a male employee with children who was treated better than the female? Courts in the Eleventh Circuit have stated that, although the McDonnell Douglas framework is controlling, it is not rigid. Thus, although the burden must still shift back and forth between employee and employer, the required elements under the first step are flexible. The Eleventh Circuit has provided that “[i]n Title VII cases, a triable issue of fact exists if the record, viewed in the light most favorable to the [employee], presents a ‘convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination by the [employer]’.” In other words, if the employee has enough evidence to paint a picture that illustrates discrimination by the employer, then, despite not having a comparator, the claim may be allowed to proceed.

If you feel your rights under Title VII have been violated, or if you have any other questions regarding your employment rights, please contact the experienced Birmingham employment law attorneys at Michel | King. You can contact us either online or by calling us at (205) 3199724. We are here to serve you!

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