Fair, & Prepared
In addition to discrimination based upon sex/gender, federal law recognizes “Sex Plus” discrimination which allows employees to bring a gender discrimination claim even if all employees of the gender are not discriminated against at the workplace. “Sex-Plus” discrimination is still just a form of gender discrimination. “Sex Plus” discrimination refers to situations where an employer classifies employees on the basis of sex plus another characteristic. In these types of cases not all members of a class are discriminated against; only a subset of a class. In other words, the employer does not discriminate against all women or men as a whole but rather the employer treats a subclass of women or men differently.
An example of “Sex Plus” discrimination includes an employer who treats women with small children differently than women without small children with the “plus” being stereotypical assumptions regarding women’s childcare responsibilities. Another example of a subclass includes older women (i.e., restaurant only employs younger females). “Sex Plus” discrimination claims are not solely limited to women and have been brought by men such as a male who has family responsibilities for a young child.
With regard to women, “Sex Plus” cases stand for the proposition that unlawful sex discrimination occurs when an employer takes an adverse job action on the assumption that a woman, because she is a woman, will neglect her job responsibilities in favor of her presumed childcare responsibilities. Courts have recognized claims where there is an assumption that a woman will perform her job less well due to her presumed family obligations, finding that the assumption is a form of sex-stereotyping and that adverse job actions on that basis constitute sex discrimination. The premise of “Sex Plus” cases is that an employer is not free to assume that a woman, because she is a woman, will necessarily be a poor worker because of family responsibilities or not do the same quality work as a younger female. The law recognizes that women have the right to work without the burden of stereotypes regarding whether they can fulfill their responsibilities.
To establish what the law calls a prima facie case of “Sex Plus” discrimination based on familial responsibilities, an employee must demonstrate that:
Similarly, to establish what the law calls a prima facie case of “Sex Plus” discrimination based upon being an “older” female, an employee must demonstrate that:
Once the employee has established a prima facie case of discrimination, the burden of production shifts to the employer to articulate some legitimate, non-discriminatory reason for the adverse action other than the “Sex Plus” protected characteristics. If the employer produces a reason for its action, then the burden shifts back to the employee to demonstrate that the employer’s proffered reasons are merely pretextual. In order to do so, the employee must point to some evidence from which a reasonable jury could conclude either: (1) that the employer’s proffered reasons are not worthy of credence; or (2) that the real reason for the decision was the “Sex Plus” protected characteristics. An employee can discredit an employer’s articulated reason for an employment decision by pointing to “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons such that a reasonable factfinder could rationally find them ‘unworthy of credence.