Fort Lauderdale, Fla. (October 8, 2024) - In a recent decision, the Eleventh Circuit Court of Appeals (which covers Florida, Alabama and Georgia) addressed and clarified three important concepts in employment discrimination litigation – "sex-plus" discrimination, "mixed-motive" discrimination and the "convincing mosaic" theory. See McCreight & Webster v. AuburnBank, et al, No. 22-12577 2024 WL 2541127, 2024 U.S. App. LEXIS 23859 (11th Circuit Sep. 19, 2024).
Sex-Plus Discrimination: The plaintiffs, two women over the age of 40, alleged they were terminated for being older women and in retaliation for their internal complaints about the workplace in violation of Title VII of the Civil Rights Act and the Age Discrimination in Employment Act ("ADEA"). In doing so, they asserted a "sex-plus" claim – meaning, sex discrimination based on a subclass of a sex (i.e., older women).
To be clear, a "sex-plus" claim does not require a plaintiff to base their claim on "more than one type of discrimination causing the adverse action." Nor does it require a plaintiff to establish that an employer discriminated against all men or women. Rather, a plaintiff must state a claim based on their membership in a particular subgroup of men or women, such as black men, older women, or women with young children.
Mixed-Motive Theory: In affirming summary judgment in favor of the defendant, the Eleventh Circuit made clear that a sex-plus discrimination claim can be established under either a single-motive theory or a mixed-motive theory.:
- Under a single-motive theory, a plaintiff must prove that the illegal discrimination was the but-for cause of the adverse employment action (i.e., plaintiff was terminated because she was an older woman).
- Under a mixed-motive theory, a plaintiff need only establish that illegal discrimination played a part in the decision, not that it played the dispositive role (i.e., plaintiff was terminated because she made a mistake, but the employer would not have terminated her if she wasn't an older woman).
While the complaint filed at the outset of the case need not identify what theory the plaintiff intends to rely on, at an appropriate time (presumably by the time discovery is complete), the plaintiff must provide such notice to the defendant.
In this case, plaintiff McCreight never argued a mixed-motive theory at the district court, including at summary judgment. Therefore, the Eleventh Circuit rejected her attempt to assert the theory for the first time on appeal, affirming the grant of summary judgment on her sex-plus discrimination claim because her "bits and pieces" of evidence were insufficient to support the single-motive theory that was presumed to have been relied upon.
Convincing Mosaic: The Eleventh Circuit also affirmed summary judgment dismissing plaintiffs' age discrimination claims despite rejecting the defendant's argument that plaintiffs' claims should not be analyzed under the "convincing mosaic" standard. The Court made clear that the convincing mosaic standard did not materially differ from the standard long used in federal court when adjudicating summary judgment motions in employment discrimination cases. That standard is provided by the Supreme Court's decision in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which set out a burden shifting framework designed to draw out the necessary evidence in employment discrimination cases. Under McDonnell Douglas, a plaintiff must first establish a prima facie case of discrimination. The burden then shifts to the employer to articulate a legitimate, non-discriminatory reason for an adverse employment action. If the employer can, the burden shifts back to the plaintiff to establish that the employer's reasoning was a pretext for discrimination. Because the standards are the same (meaning, they both require plaintiff to establish that the employer's actions were motivated by discriminatory animus) , the Court ruled that it was of no moment that the plaintiffs had not used the term "convincing mosaic" in the trial court and it permitted her to assert that argument on appeal. However, it held summary judgment was properly granted because plaintiffs had not provided sufficient evidence to establish their terminations were because of their age.
Take-aways: While this case does not create new law, it serves as a reminder that employers need to be aware of the existence of sex-plus claims and the potential for liability under the mixed-motive theory. As always, employers can best avoid being dragged into such litigation and be better able to defend such claims if they implement and enforce strong policies prohibiting discrimination based on any protected categories and retaliation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
