Last month, in Shazor v. Professional Transit Management, Ltd., the U.S. Sixth Circuit Court of Appeals, which has jurisdiction over Ohio and other states in the Midwest, held that a jury could reasonably conclude that Professional Transit Management (PTM) illegally fired its former CEO, Marilyn Shazor, because she was an African American woman.
Shazor, like most plaintiffs in employment discrimination cases, relied on circumstantial evidence to prove her case of discrimination. When a plaintiff relies on circumstantial evidence, many courts require her to make out a “prima facie” case of discrimination in order to prevail. According to the Sixth Circuit, Shazor would normally have to show that PTM replaced her with someone outside of her protected classes (race and sex) in order to make out a prima facie case. PTM replaced Shazor with a Hispanic woman and, as such, Shazor could obviously show that PTM replaced her with someone of a different race, but not a different sex. The Sixth Circuit held that even though PTM replaced Shazor with a woman, Shazor could still prevail on her sex discrimination claim on the theory that PTM discriminated against her because she was both an African American and a woman. This theory is sometimes called a “sex plus” theory of discrimination. Under this theory, Shazor could prevail on her sex discrimination claim if she, for example, proved that PTM fired her because of stereotypical notions about women who are also African American, such as that they are “uppity.”
“Sex plus” discrimination may occur in many contexts. For instance, sometimes women with multiple young children face discrimination that women without young children do not because of the stereotype that women with young children are not committed to their jobs. Some employers think that if a woman has young children, she is going to have attendance issues and be unwilling to work late because of child care responsibilities. It is unlawful sex discrimination to discriminate against a woman when you have no reason–other than the fact that she has small children–to believe that she won’t be committed to the job.