Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Wednesday, March 28, 2018

Limited Legal Recourse for Intersectional Age and Gender Discrimination in Employment

Joanne Song McLaughlin, Limited Legal Recourse for Older Women's Intersectional Discrimination Under the Age Discrimination in Employment Act

Older women compose a large share of labor force in the U.S. There are two federal statutes that can provide protection for older women against employers’ discriminatory behavior: the Age Discrimination in Employment Act (ADEA) and Title VII of the Civil Rights Act (Title VII). Theories and empirical evidence suggest that older women are more discriminated against for being old and female, but there is a concerning policy implication that current legislation does not provide adequate protection for older women. The main reason for this concern is that older women’s intersectional discrimination invokes age-plus-sex or sex-plus-age cause of action. However, the courts do not recognize this cause of action under the ADEA and they have mixed views on this issue under Title VII. This article discusses evidence of older women’s intersectional discrimination and the importance of recognizing this intersectionality in proof structure. It also reviews case laws and the effectiveness of the age discrimination laws on older women’s labor market outcomes. The findings indicate that the ADEA does not provide equal employment opportunities for older women. Older women’s legal recourse for their unique intersectional discrimination for being old and female is constrained under the ADEA and Title VII strictly due to legislative peculiarities in statutes intended to solve this exact problem.

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