About the Article

Theories and empirical evidence suggest older women face heightened discrimination on the basis of age and sex. Current legislation does not adequately offer protection for older women in the labor force against discrimination based on the intersectionality of age and sex. This article discusses invoking an age-plus-sex or sex-plus-age cause of action for older women’s intersectional discrimination. This Article explains the Age Discrimination in Employment Act and Title VII of the Civil Rights Act frameworks for discrimination, along with an explanation on why courts do not recognize this cause of action. In addition, this Article analyzes the rising concern regarding older women facing discrimination and compares relevant case law.

Older women compose a large share of the labor force in the United States. There are two federal statutes that provide protection for older women against discriminatory behavior by employers: 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. Despite this evidence, 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 the prevalence of older women’s intersectional discrimination in the workplace calls for the invocation of an 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. The Article also reviews case law and the effectiveness of 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.

Key words: older women, intersectional discrimination, ADEA, Title VII, age discrimination, sex discrimination, age-plus-sex, sex-plusage

JEL: J14, J16, J18, J21, J70, J71, J78, K31

About the Author

Professor Joanne Song McLaughlin is an Assistant Professor of Economics at the State University of New York at Buffalo; B.S., California State University, Los Angeles; M.A. and Ph.D. in Economics, University of California, Irvine. Professor McLaughlin’s research areas include employment law, age discrimination law, discrimination against older women, and labor and public economics. Professor McLaughlin’s articles have been published in Research on Aging, the Journal of Comparative Economics, and the Journal of Public Economics.

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The Elder Law Journal
law-elderlaw@illinois.edu

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