EEOC-Initiated Litigation - 2022 Edition

18 | EEOC-Initiated Litigation: 2022 Edition © 2022 Seyfarth Shaw LLP 2. Developments In The EEOC’s Pursuit Of Age Discrimination Claims As noted above, age discrimination claims continue to make up a large part of the EEOC’s docket in terms of its attempts to eliminate barriers in recruitment and hiring. This focus continues to result in substantial litigation wins for the EEOC and important developments in the law of age discrimination. For example, in Frappied v. Affinity Gaming Black Hawk, LLC , 113 an appeal for which the EEOC filed an amicus curiae brief, the Tenth Circuit held as a matter of first impression that the federal anti-discrimination laws allowed for “intersectional” sex-plus-age discrimination claims, noting that: “[r]esearch shows older women are subjected to unique discrimination resulting from sex stereotypes associated with their status as older women,” which is “distinct from age discrimination standing alone.” 114 In that case, former employees filed employment discrimination claims alleging that their employer terminated them on the basis of age and sex. The charging parties were employed at the employer’s Golden Mardi Gras Casino. In January 2013, many of the casino’s employees were laid off. The terminations were not a reduction in force, and Defendant posted an advertisement on Craigslist following the layoffs listing 59 open positions. The charging parties were nine of those terminated employees, including eight women and one man. All were forty or older when they were terminated. The female plaintiffs brought “sex-plus-age” disparate impact and disparate treatment claims under Title VII, alleging they were terminated because the employer discriminated against women over forty, and disparate impact and disparate treatment claims under the ADEA, alleging they were terminated because of their age . 115 The Tenth Circuit held that sex-plus-age claims are cognizable under Title VII, reversing the district court’s ruling. The Tenth Circuit found no material distinction between a sex-plus-age claim and the other “sex- plus” claims they have previously recognized, such as claims for which the “plus-” element is marital status or having preschool-age children . 116 Because a sex-plus-age claim alleges discrimination against an employee because of sex and some other characteristic, the Tenth Circuit found that qualifies as a sex discrimination claim. To establish discrimination under a sex-plus-age theory, the Tenth Circuit held that a plaintiff must show unfavorable treatment relative to an employee of the opposite sex who also shares the “plus-” characteristic – i.e. , a male employee over 40. 117 The EEOC has won other critical precedent-setting decisions in this area in recent years. For example, in EEOC v. Baltimore County , 118 the U.S. District Court for the District of Maryland held that the EEOC need not follow the procedural requirements of collective actions required of private litigants under the Fair Labor Standards Act. The District Court held that the ADEA’s statutory scheme plainly permitted the EEOC to pursue an enforcement action under its provisions without obtaining the consent of the employees it seeks to benefit. 119 The District Court concluded that the provisions governing FLSA collective actions are not “[f]ailure to hire is a “discrete act” which is easy to identify and distinguished from hostile work environment claims, which the Supreme Court has found amenable to the continuing violation doctrine.” Id . 113 Frappied v. Affinity Gaming Black Hawk, LLC , 966 F.3d 1038 (10th Cir. 2020). 114 Id. at 1049. 115 Id. at 1045. 116 Id. at 1045-46. 117 Id. at 1049. Moreover, the Tenth Circuit also concluded that, accepting the EEOC’s allegations, it was plausible that the employer’s termination policies resulted in a significant disparate impact on workers forty or older and reversed the dismissal of their ADEA disparate impact claim. Id. at 1055. Finally, the Tenth Circuit affirmed the dismissal of Plaintiff’s Title VII disparate treatment claim, but reversed the district court’s granting of summary judgment on Plaintiffs’ ADEA disparate treatment claim. Id. at 1058. The Title VII and ADEA disparate impact claims, along with the ADEA disparate treatment claim, were remanded back to the district court. Id. at 1061. 118 EEOC v. Baltimore County , No. 07-CV-2500, 2019 WL 5555676 (D. Md. Oct. 28, 2019). 119 Id. at *4. The ADEA does not provide its own, discrete procedures governing an action instituted by the EEOC. Rather, the statute requires that it shall be enforced in accordance with the powers, remedies, and procedures provided in certain provisions of the FLSA, including the collective action procedures found under § 216(b). Collective actions under that section require employees to opt in or consent to join a lawsuit.