Falling Between the Cracks: Discrimination Laws and Older Women

Abstract

Theories and evidence suggest that older women may experience unique discrimination for being both old and female in the workplace. To provide a remedy for this type of discrimination known as intersectional discriminationlegal scholars argue that age and sex discrimination laws must be used jointly and acknowledge intersectional discrimination (age-plus-sex or sex-plus-age discrimination) as a separate cause of action. Nonetheless, in general, courts have declined to do so even though older women are protected under both age and sex discrimination laws. This raises a concern that age discrimination laws may be ineffective, or less effective in protecting older women. I test this implication by estimating the differential effect of age discrimination laws on labor market outcomes between older women and older men. My findings show that age discrimination laws did far less to improve labor market outcomes for older women than for older men. These results may explain the persistent findings of discrimination against older women in the existing literature and support the legal scholars' argument that older women's intersectional discrimination must be recognized as a separate cause of action. *I am indebted to David Neumark who provided valuable guidance and encouragement during the initial stages of this work. I thank two anonymous referees for helpful suggestions. I am grateful to

Population Aging, Age Discrimination, and Age Discrimination Protections at the 50th Anniversary of the Age Discrimination in Employment Act

“…intersectional discrimination is a verified problem. Meanwhile, "sex-plus-age" discrimination cases are generally not being allowed under the ADEA and Title VII of the Civil Rights Act (Crocette, 1998;Day, 2014;Porter, 2003;McLaughlin, 2018), while other intersectional cases are allowed (e.g., race and gender) simply because they both fall under the same statute. The lack of discriminatory protections for older women may be behind the more severe age discrimination that they face, and may also explain the fact that the laws seem less likely to help them (McLaughlin, 2018).…”

“…For older women to be protected from this intersectional discrimination, they must use both the ADEA and Title VII of the Civil Rights Act, recognizing older women as a subgroup of two protected classes. However, in practice, courts generally do not allow this joint use of legal precedence (Crocette, 1998;Day, 2014;Porter, 2003;McLaughlin, 2018) 19 although some have allowed it. 20 Meanwhile, intersectional claims that fall under the same statute (e.g., race and gender, both under Title VII) are generally accepted by courts (Day, 2014).…”

“…Luckily, a study by McLaughlin (2018) fills this gap by estimating the effect of state age discrimination laws passed before the ADEA, and the passage of the ADEA on employment outcomes for older women (similar to Adams, 2004, andStock, 1999). McLaughlin (2018) finds that while both state-level age discrimination laws and the ADEA helped older men, they either had a smaller positive effect for older women or no effect at all.…”

Population Aging, Age Discrimination, and Age Discrimination Protections at the 50th Anniversary of the Age Discrimination in Employment Act

“…Thus, "sex-plus-age" intersectional discrimination is a verified problem. Meanwhile, "sex-plus-age" discrimination cases are generally not being allowed under the ADEA and Title VII of the Civil Rights Act (Crocette, 1998;Day, 2014;Porter, 2003;McLaughlin, 2018), while other intersectional cases are allowed (e.g., race and gender) simply because they both fall under the same statute. The lack of discriminatory protections for older women may be behind the more severe age discrimination that they face, and may also explain the fact that the laws seem less likely to help them (McLaughlin, 2018).…”

“…Luckily, a study by McLaughlin (2018) fills this gap by estimating the effect of state age discrimination laws passed before the ADEA, and the passage of the ADEA on employment outcomes for older women (similar to Adams, 2004, andStock, 1999) Delaney & Lahey (2019) also note that the implications of Gross apply here, making intersectional age-by-race claims even more difficult to make. This issue is even more dire for Black older women who may experience intersectional discrimination on the basis of the combination of age, race, and gender.…”