MARCH 2013

For many years, the courts have recognized one specific type of gender discrimination as discriminating against a person’s sex plus one other characteristic; for example, targeting a woman who is caring for minor children. An interesting variation on the “sex-plus” theory of discrimination is the “sex-plus-age” claim, particularly after the Supreme Court’s decision in Gross v. FBL Financial Services, 129 S.Ct. 2343, 2350, 174 L.Ed.2d 119 (2009) establishing a but-for standard for proving age discrimination. Typically such allegations are based on the theory that older women have been victims of discrimination. Several questions arise regarding such claims, and there is relatively little case law discussing them.

One issue is whether a plaintiff can plead both age discrimination and gender discrimination in the same lawsuit. District courts have reached differing conclusions. Compare Gwin v. BFI Waste Services, LLC, 718 F. Supp. 2d 1326, 1333 (N.D. Ala. 2010) (the plaintiff must amend his complaint “to eliminate either his ADEA claim or his Title VII claim.”); Whitaker v. Tennessee Valley Auth. Bd. of Dirs., No. 08-1225, 2010 WL 1493899, at *9 (M.D.Tenn. 2010) (“Post-Gross, it is incongruous to posit such alternate theories because the very presentation of different reasons for an action suggest that age was not the sole reason for the action.”) (emphasis in original)); Culver v. Birmingham Bd. of Educ., 646 F.Supp.2d 1272, 1272 (N.D.Ala. 2009) (“Prior to Gross, it was permissible to allege alternative proscribed employer motives, one of which is plaintiff’s age. That permission has now been withdrawn by the Supreme Court.”); with Houchen v. Dallas Morning News, Inc., 2010 WL 1267221, at *3 (N.D.Tex. 2010) (holding that, on summary judgment, “[w]hile issues of proof may prevent Plaintiffs from prevailing on both theories, the court does not find the mere fact of pleading sex and age discrimination claims together a basis for dismissing the age discrimination claims.”); Siegel v. Inverness Med. Innovations, Inc., 2010 WL 1957464, at *6 (N.D. Ohio 2010) (“[Plaintiff] may pursue alternative claims at this [summary judgment] stage of the case; what Gross prohibits is an age discrimination verdict based on a mixed-motive jury instruction.”); Belcher v. Service Corp. Int’l, 2009 WL 3747176, at *3 (E.D.Tenn. 2009) (“While Gross arguably makes it impossible for a plaintiff to ultimately recover on an age and a gender discrimination claim in the same case, the undersigned does not read Gross as taking away a litigant’s right to plead alternate theories under the Federal Rules.”).

The latter approach seems to be the one adopted by most courts. See e.g. Pride v. Dep’t of Human Servs. (N.D. Ill., 2013) (“We agree instead [of the Culver case] with the compelling analysis of the courts in our district and hold also that Gross does not prevent Plaintiff from proceeding with discrimination claims under both the ADEA and Title VII.”); Pearson v. Lawrence Med. Ctr. (N.D. Ala., 2012) (“Because Federal Rules of Civil Procedure 8(d)(2) and (3) permit alternative and inconsistent claims, this court concludes that plaintiffs may plead age discrimination in combination with other proscribed motives for adverse employment actions.”).

Some courts on both sides of the pleading issue agree that a recovery cannot be based on both the ADEA and Title VII. Others postulate that no election of remedies will be required, because it is possible to prove both gender and age discrimination occurred in the same case. See Archie v. Home-Towne Suites, LLC, 749 F. Supp. 2d 1308, 1315 (M.D. Ala. 2010) (“. . . Gross requires “but for” causation. . . [T]here is a difference between “but for” causation and “sole” causation. [A] plaintiff might prove that gender discrimination was a substantial or motivating factor in an adverse employment action, satisfying the standard for the Title VII claim, but also show that if it had not been for her age, she would not have been terminated, satisfying the ADEA standard. . . .”[citations omitted]).

Another question is the exact nature of a sex-plus-age theory. On this point, at least, the answer seems clear. Such claims are alleging a form of gender discrimination. Deangelo v. Dentalez, Inc., 738 F.Supp 2d 572 (E.D. Pa. 2010) (“At its root, however, “sex-plus” [age] discrimination is simply a form of gender discrimination.”) Accordingly, the proof of such claims should follow the same analysis as any other sex-plus claim.

It is obvious that there is a difference of opinion among the various district courts who have considered the issue as to whether a case alleging both age and other illegal discrimination can be brought, or even if dismissal is unnecessary whether an election of remedies will eventually have to be made. Because there is yet no Eleventh Circuit or Supreme Court ruling on the issue, there is currently no binding federal authority in Florida resolving the matter. Camreta v. Greene, 131 S. Ct. 2020, 2033 n.7 (2011) (“A decision of a federal district court judge is not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case.”).

Finally, one Florida state court in 2012 discussed two other topics in an “age plus sex” case. In Sunbeam Television Corp. v. Mitzel, 83 So. 3d 865, 114 Fair Empl.Prac.Cas. (BNA) 354 (Fla. 3d DCA 2012), the Third District vacated a jury verdict and ordered a new trial in a case which had ultimately awarded a plaintiff damages for alleged discrimination because she was an older woman. First, the trial court improperly allowed the plaintiff to change her theory from a pure age claim to an unpled (either in her administrative charge or in the complaint) age-plus-sex claim towards the last stages of litigation. The appellate court concluded that permitting the plaintiff to try not only her age discrimination claim but what amounted to an unpled sex discrimination case was reversible error. Second, the court ruled that an expert witness’s testimony regarding alleged general discrimination against older women in the broadcast industry should have been excluded, because such generic testimony did not serve to help prove the discreet act of discrimination alleged in the plaintiff’s complaint: that she would not have been terminated by her employer “but for” her age.