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Third Circuit Decision Examines “Sex Plus” Discrimination


Gender discrimination is one of the most heavily litigated areas of New Jersey Employment Law. The United States Third Circuit Court of Appeals recently issued an opinion involving the issue of “sex plus” gender discrimination which will apply equally to New Jersey’s state and federal courts.


What is “Sex Plus” Discrimination?

Although it didn’t call it that, the concept of “sex plus” discrimination was first adopted by the United States Supreme Court in a 1971 decision involving Title VII of the Civil Rights Act of 1964, in the case of Phillips v. Martin Marietta Corp. In that case a woman applied for a job in which three quarters of the employees were female, and thus it was clear that the employer did not discriminate against women. However, it did not accept applications from women with pre-school age children, while at the same time it accepted and employed men with pre-school age children. The Supreme Court found that this was sex discrimination because it placed barriers to work on women that it did not place on them.
Legal scholars and courts reviewing this decision have referred to this as “sex plus” discrimination – ie., the discrimination was not based just on gender, but “sex plus” one other requirement that the employer did not require for the other gender.


The Third Circuit’s Rosencrans Decision

The United States Court of Appeals for the Third Circuit (which hears appeals from the United States District Courts in New Jersey, Delaware, Pennsylvania and the United States Virgin Islands) recently issued a decision applying the “sex plus” analysis to a motion for summary judgment dismissing an employee’s lawsuit in the case of Rosencrans v. Quixote Enterprises, Inc., doing business as Adult World. The facts of the case are somewhat involved, but can be boiled down to this.

Kymberly Cole Rosencrans was a housekeeper for Charles Eric Morrow. They became friends and, in May 2015, had sex one time. They remained on good terms afterward. In late 2015, Morrow hired Rosencrans for his business, Quixote Enterprises, Inc., an adult entertainment business operating under the name “Adult World.” Morrow was part-owner and the “boss” of Adult World. The parties dispute why she was fired and who fired her, but on November 19, 2015, ten days after she started working, she was fired. This was also the day after she informed Morrow that she had flown to Las Vegas and gotten married several days earlier. Rosencrans’s replacement was a woman.

Rosencrans sued Morrow and Quixote for wrongful termination because of sex discrimination. The District Court eventually dismissed her claims, stating that she had failed to present evidence establishing a prima facie case of gender discrimination. The Third Circuit disagreed and reinstated her suit.

The Third Circuit explained that: ”A Title VII claim premised upon marital status raises what has come to be known as a `sex-plus’ problem, which arises whenever an employer adds a criterion or factor for one sex (e.g., marital status), which is not added for the other sex.” The Third Circuit explained that to defeat an employer’s motion for summary judgment in a “sex plus” discrimination case, an employee need not prove her case, but she must put forward enough information to show the existence of questions of material fact that a reasonable juror could decode in her favor. In this case, the Third Circuit explained:

Here, Rosencrans has put forth sufficient evidence for a prima facie showing that her discharge occurred under circumstances giving rise to an inference of impermissible discrimination. For example, in response to Rosencrans’s text messages questioning her firing, Morrow texted back, “U have. . . a new husband.” When asked at his deposition why he included that fact in his response, Morrow testified, “Because she just got married. . . . She’s not my problem. . . . It’s not my job to support that girl. It is not my job. . . . Let him take care of her.” While the District Court credited this as evidence of impermissible stereotyping on Morrow’s part, it nonetheless concluded that Rosencrans’s claim failed because she could not show that Morrow was the decisionmaker behind her firing or that Schemery and Greco shared Morrow’s views.

That conclusion, however, overlooks evidence from Rosencrans that Morrow may well have been the decisionmaker. Notably, after Rosencrans was fired, Morrow described the decision in personal terms, explaining, “I gave the other girl another chance. . . .” While Morrow testified that he does not “hire and fire people,” the evidence here can be viewed otherwise. Morrow was apparently the one who hired her, and his later text message can be read as taking responsibility for replacing her. In addition, regardless of whether Schemery and Greco were required to get Morrow’s permission to fire Rosencrans, it is not disputed that they did seek his permission. And, of significance, there is a very close temporal proximity — a single day — between when Rosencrans told Morrow she had gotten married and her termination. Taking all of the evidence in the light most favorable to Rosencrans, there is sufficient evidence connecting her firing to impermissible discrimination to establish the requisite prima facie case under …Title VI….

In short, we conclude that the District Court erred in granting summary judgment on Rosencrans’s Title VII claims because there are yet factual disputes to resolve about whether she would have been terminated absent her marriage.


The Takeaways

• While an employer may not favor men over women in employment, if it nonetheless places restrictions on women that it does not place on men this can be “sex plus” discrimination.

• There are exceptions to this for what are called “BFOQs” – bona fide occupational qualifications. For example, a manufactor of womens clothing may use female models; a corrections department may (and probably must) use female officers to strip search female prisoners.

• This concept can be extended beyond gender discrimination. Any form of prohibited discrimination can give rise to a “sex plus” claim. However, the claim arises most often in the area of sex discrimination.

• Employers should be aware of this concept. They must also be aware that employees stand a good chance of getting their case to a jury because all they need to do to defeat summary judgment is raise a genuine issue of material fact.

• However, employees should be aware that getting a case past summary judgment does not mean they have proved discrimination. In this case, Rosencrans still had to go before a jury and prove her case.

• This case was decided based on Title VII. However, the same analysis applies to New Jersey employees under New Jersey employment law, particularly the New Jersey Law Against Discrimination, and in New Jersey state courts.


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