Discrimination Against Older Women … Time for a New Category?

It is well-known that Title VII of the Civil Rights Act prohibits discrimination in employment on the basis of sex, and the Age Discrimination in Employment Act prohibits discrimination on the basis of age (the individual must be age 40 or over to be covered).  Sex and age are each therefore considered to be “protected classes.”

Proving discriminatory treatment is all about comparing how the plaintiff was treated to how others who are not in the plaintiff’s protected class were treated.  So a female would have to show that males are treated more favorably, and an older person would have to show that younger people are treated more favorably.  But what about an employer that hires younger women and older men, but not older women?  When an older woman claims she was not hired because she is female, the employer can defeat the claim by pointing to its hiring of younger women. When she claims she was not hired because she is older, the employer can point to its hiring of older men.

The concept of discrimination based on sex stereotypes was typified by Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).  In that case, a female who was denied partnership in an accounting firm introduced evidence such as comments that she was “overly aggressive, unduly harsh, difficult to work with and impatient with staff,” that she was “macho,” that she “overcompensated for being a woman,” needed “a course at charm school” and should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” In addressing the issues of stereotypes, Justice Brennan wrote:

[i]n the specific context of sex stereotyping, an employer who acts on the basis of a belief that    a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.

Price Waterhouse, 490 U.S. at 249. Justice Brennan went on to state more broadly that: 

[b]y focusing on [the plaintiff’s] specific proof, . . . we do not suggest a limitation on the possible ways of proving that stereotyping played a motivating role in an employment decision.

Id. At 251-52. 

But the courts have not been as willing to consider the ways in which older women suffer discrimination.  The question is whether older women suffer their own discrimination based on the combination of their age and sex.  This is sometimes called “intersectional” discrimination, because it intersects two forms of discrimination.  It is also sometimes called “sex-plus,” because the discrimination occurs because she is female, plus another category, age. 

One commentator noted:

one only has to look as far as the television in one’s home to see an example of how the merging point of sexism and ageism has really affected older women in a very unique, and unfortunately, very negative way… Women over age forty are regarded as “‘too old’ and ‘too unattractive’ to anchor the         news.” While for “male anchors, ‘gray hair and … wrinkles are  considered marks of distinction, …for women they’re the kiss of death.’”

Nicole B. Porter,“Sex Plus Age Discrimination: Protecting Older Women Workers,” 81 DENVER UNIVERSITY LAW REVIEW 79 (2003).  The same author remarked:

While most of us love our grandmothers and have very fond memories of her, how many of us can say that the image conjured up in our heads was one of a powerful, independent, intelligent, and capable woman? Compare that image to one of our grandfathers, or other older men we know, who are much more likely to be running our businesses and our government,  and it is easy to see how society marginalizes older women.

The “sex-plus” discrimination theory was first recognized by the U.S. Supreme Court in Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971).  In that case, the defendant refused to hire the plaintiff because she had pre-school age children.  It even had an official policy to that effect, but imposed no such limitation on the hiring of men.  When Phillips sued and alleged sex discrimination, the company won by pointing out that the vast majority of applicants it hired for the position were women, albeit women without pre-school age children.  The Supreme Court disagreed, holding that the company violated Title VII by having one hiring policy for men and another for women. 

This same rationale was used to strike an employer policy barring the hiring of married female flight attendants but not unmarried male flight attendants (Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1196 (7th Cir. 1971), and discrimination against black women as a separate category (Jefferies v. Harris County Cmty. Action Ass’n, 615 F.2d 1025 (5th Cir. 1980)).

But sex plus age is a more difficult concept, in some cases because some courts suggest that such a theory would require forming a subclass by combining two laws, Title VII and the ADEA into one claim.  Johnson v. Napolitano, 2013 U.S. Dist. LEXIS 45032 (S.D.N.Y. March 28, 2013) refused to recognize an “age plus” claim.  Smith v. Bd. of County Comm’rs of Johnson County, 96 F.Supp.2d 1177, 1187 (D. Kan. 2000) noted that no district court has explicitly adopted an age-plus-gender theory of liability under the ADEA.  

Other cases, such as Arnett v. Aspin, 846 F. Supp. 1234 (E.D. Pa. 1994), have found that sex plus age can be considered a claim under Title VII without the ADEA.  In that case, the plaintiff alleged that she was discriminated against as an older woman since she was passed up for a transfer to a position that was given to younger women or men over the age of forty.  In Barnett v. PA Consulting Group, 715 F.3d 354 (D.C. Cir. 2013), the older female had the highest performance ratings, yet was let go after being told that she didn’t “fit” the group’s needs any more.  A younger male with lower ratings was retained. The court held that a jury should be allowed to consider those facts.  Both  DeAngelo v. Dental EZ, Inc., 738 F. Supp. 2d 572, 578-79 (E.D. Pa. 2010) and Foley v. Eckhart Richard-Allan Med. Inbus., 1995 U.S. Dist. LEXIS 20663 (C.D. Cal., Nov. 14, 1995) recognized and analyzed a combined age/gender discrimination claim).

It is noteworthy that the Equal Employment Opportunity recognizes intersectional discrimination as a feature of Title VII:

Title VII prohibits discrimination not just because of one protected trait (e.g., race), but also because of the intersection of two or more protected bases (e.g., race and sex). For example, Title VII prohibits discrimination against African American women even if the employer does not dscriminate against White women or African American men.

 Likewise, Title VII protects Asian American women from discrimination based on stereotypes and assumptions about them “even in the absence of discrimination against Asian American men or White women.” The law also prohibits individuals from being subjected to discrimination because of   the intersection of their race and a trait covered by another EEO statute – e.g., race and disability,or race and age.

EEOC Compliance Manual 915.003 (April 19, 2006) at § 15-IV-C.

In conclusion, although the ADEA is intended to prohibit age discrimination and that Title VII is intended to prohibit sex discrimination, the effectiveness of existing legislation in protecting older women as a subgroup is questionable. Given that the possibility of legislative change is quite dismal, we will continue to be faced with court decisions addressing intersectional sex and age claims in a piecemeal fashion.

     – This blog was written by Elizabeth L. Newman.  Please contact her at enewman@kcnlaw.com.