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The EEOC Speaks: Pay Discrimination – Intersectionality and Sex-Plus

By Fiona W. Ong - Shawe Rosenthal LLP

May 17, 2022

In my first blog post in this little series based on the Equal Employment Opportunity Commission’s article “In Pursuit of Pay Examining Barriers to Equal Pay, Intersectional Discrimination Theory, and Recent Pay Equity Initiatives,” I covered the EEOC’s explanation of the difference between pay discrimination claims under the Equal Pay Act and Title VII. (As I explained last time, the EEOC issues a quarterly Digest of EEO Law that occasionally contains articles of interest to the private employer community. Prior articles that I’ve shared include those on fragmentation of harassment claims, religious discrimination, comparing harassment prevention to crime prevention, and new types of race discrimination, among other things). In this post, we’ll review the EEOC’s take on intersectionality (one of the EEOC’s new favorite topics) and sex-plus discrimination in the context of pay discrimination claims.

Let’s start with the difference between intersectionality and sex-plus discrimination:

“Intersectionality” or “intersectional discrimination” is a concept the EEOC developed to refer to discrimination arising through the intersection of two or more protected bases, like sex/race, or national origin/religion. For example, an employer could discriminate against Black women, although it does not discriminate against White women or Black men. Moreover, this type of discrimination may bridge statutes – such as a combination of age under the Age Discrimination in Employment Act and sex under Title VII (i.e. older women). (Back in a 2017 post about yet another EEO Digest article, I noted that the EEOC had identified this “new” form of discrimination).

“Sex-plus” discrimination, which was recognized by the Supreme Court, involves discrimination on basis of sex and a characteristic that is not protected by the federal anti-discrimination statutes, such as parental or marital status. The EEOC cites to other sex-plus Supreme Court decisions for several additional relevant points. One is that it is possible under Title VII for employers to discriminate against an individual on the basis of their sex (or other protected characteristic) even if they treat other members of that group favorably. As the EEOC describes it, “In other words, fairness to women employees as a whole cannot justify unfairness to an individual female employee.” And the other point is that a violation of Title occurs when sex (or other protected characteristic) is a “motivating factor” for the unfair decision – it does not have to be the only or primary reason for the decision.

As the EEOC acknowledges, however, not all federal courts have adopted these theories, and those that have recognized some form of sex-plus/intersectional discrimination have done so in contexts other than pay discrimination. Nonetheless, the EEOC notes that the sex-plus or intersectional theories of discrimination may come into play if an employee alleges pay discrimination based on sex in combination with some other personal characteristic. Employers should be prepared for the EEOC to push this theory, particularly with regard to female employees of color – a group the EEOC identifies as being of specific interest.

Stay tuned for the next episode of this exciting mini-series – barriers and suggested actions!

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