Gender and the Law Prof Blog

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

Thursday, October 18, 2018

Extending the Sex Plus Discrimination Doctrine to Age Discrimination Claims

Marc Chase McAllister, Extending the Sex Plus Discrimination Doctrine to Age Discrimination Claims Involving Multiple Discriminatory Motives, 60 Boston College L. Rev. (forthcoming)

This article examines a double judicial split in age discrimination cases, one pertaining to Title VII and the other to the ADEA. First, this article considers whether the Title VII sex-plus discrimination doctrine should apply to discrimination claims specifically combining sex and age, and contends that such claims should be more routinely permitted to combat discrimination against older female employees. Second, this article considers whether the sex-plus discrimination doctrine should extend to age-plus discrimination claims under the ADEA. In a thorough analysis, this article shows that the ADEA’s “but for” standard of causation permits discrimination claims based on the combination of age and another immutable characteristic, like race or gender. Nevertheless, because Congress has not amended the ADEA to clarify how it applies in cases involving multiple discriminatory motives, courts will likely remain hesitant to recognize ADEA plus discrimination claims. Accordingly, this article proposes that Congress amend the ADEA to state that an ADEA plaintiff may prevail upon proof that his or her age was “a motivating factor for an adverse employment action, even though other discriminatory or illegitimate factors may have also motivated the employer.”

https://lawprofessors.typepad.com/gender_law/2018/10/extending-the-sex-plus-discrimination-doctrine-to-age-discrimination-claims.html

Equal Employment, Theory, Workplace | Permalink

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