Compound Discrimination: Closing the Loop in Age and Sex Claims

• Publication year: 1999
• Pages: 5

28 Colo.Law. 5 Colorado Lawyer 1999.

1999, June, Pg. 5. Compound Discrimination: Closing the Loop in Age and Sex Claims

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Vol. 28, No. 5, Pg.5

The Colorado Lawyer
June 1999
Vol. 28, No. 6 [Page 5]

Articles

Compound Discrimination: Closing the Loop in Age and Sex Claims
by Kimberlie K. Ryan

A fifty-two-year-old woman seeks legal assistance after being terminated from her eighteen-year employment as a manager She tells her attorney that her supervisor had continually asked her when she was going to retire and tolerated an environment in which her colleagues regularly called her names, such as "old battle ax" and "little old lady." She also stated that she trained younger male employees to supervise her and was repeatedly passed over for promotions

Based on these facts, her attorney believes she has a claim for sex discrimination under Title VII of the Civil Rights Act of 1964, as amended ("(Title VII"),1 the federal discrimination statute prohibiting employers from making adverse employment decisions on the basis of the employee's sex, as well as other protected categories. It also sounds as if she has a claim of age discrimination under the Age Discrimination in Employment Act ("ADEA"),2 the federal law prohibiting employers from discriminating against individuals over the age of forty

However, both claims are lost on summary judgment. Dismissing the client's claims, the court rules that because the employer demonstrated that younger women were treated favorably, the sex discrimination claim is dismissed. Moreover, the court dismisses the age discrimination claim, relying on the evidence showing that men over the age of forty were treated favorably. In short, the court fails to recognize that the client is discriminated against based on the combination of her sex and age, or compound discrimination.3

Should the attorney have pled her claim as a "sex-plus" claim under Title VII? Could the attorney have prevailed with an "age-plus" claim under the ADEA? Rather than pleading these claims in the alternative, the attorney should have considered pleading claims that combine one or more protected class. A groundbreaking study ("Sex and Age Discrimination Study") analyzing claims of older women brought over a twenty-year period concludes that only 10 percent of the attorneys brought age and sex discrimination claims as a single claim?discrimination against older women.4

While some courts have refused to recognize such claims, stating that "older women" are not a protected category under Title VII or the ADEA, others have interpreted the statutes as permitting claims by "subclasses" of protected categories, because a failure to do so would leave groups of protected individuals without remedies under traditional analyses of "sex-plus" claims.

This article discusses the unique dilemma for employees, employers, and attorneys created by compound discrimination on the basis of age and sex, first by providing information on the scope of the problem and analyzing the cases relevant to this issue, and then by presenting pleading alternatives and practical advice attorneys can give to employers. This area of the law is of importance not only to employment lawyers, but also to lawyer-employers and general practitioners who advise employer-clients on business matters.

SCOPE OF THE PROBLEM

Compound Discrimination: The Fusion of
Sex and Age Discrimination

Just when many employees thought they had cracked the "glass ceiling," they hit the brick wall. According to the Glass Ceiling Commission, the "glass ceiling" refers to invisible, artificial barriers that prevent qualified individuals from advancing within their organization and reaching their full potential.5 The term originally described the point beyond which women managers and executives were not promoted because of discrimination based on sex. The brick wall, as used here, is the blockade erected against older women by one of the fastest growing areas of employment discrimination?ageism?or making negative employment decisions against individuals over the age of forty years, the minimum age protected under the ADEA.

According to the Sex and Age Discrimination Study, case law and common sense have shown that older women face barriers that older men and younger women do not face, even when they encounter discrimination.6 The stereotypes work in unique ways: older women are considered to be unattractive, unassertive, indecisive under stress, technically incompetent, motherly so not leadership material, and not robust.7

Although Title VII prohibits discrimination in employment on the basis of sex and the ADEA prohibits discrimination in employment on the basis of age, no federal law protects employees from discrimination based on the combination of sex and age, and courts have reached inconsistent results on this issue. However, as employment discrimination laws have evolved, the courts have witnessed the development of "subspecies" of traditional claims.8 Charges of sex, race, religion, and age discrimination have merged in various combinations to produce protected subclasses in need of legal redress.9

The Sex and Age Discrimination Study, noted above, sought to find out how women fare in sex and age discrimination suits. Funded by the American Association of Retired Persons, the study analyzed 335 sex and age discrimination cases filed in federal and state courts from 1975 to 1995: 281 were filed by women. Of the 90,000 employment discrimination complaints filed by women aged forty and older during the study period, 25 percent were for sex discrimination only; 25 percent for age discrimination only; and 10 percent for both. The average age of the claimants was fifty-three. Approximately 33 percent of the complaints of age discrimination were from white women, in contrast to 7 percent from black women.10

The Sex and Age Discrimination Study reached the following conclusions:

Plaintiffs age 60 and older fared the worst, prevailing on at least one claim only 18 percent of the time. Plaintiffs in the 45-49 and 55-59 age groups had the highest success rates, prevailing on at least one claim almost 50 percent of the time. Overall, plaintiffs lost 59 percent of the time.

Women most successful in winning their cases sought or held executive or managerial jobs, such as professors, teachers, accountants, and nurses.

White plaintiffs were significantly more likely to win than African American or Latino plaintiffs.

Only 10 percent of the courts were receptive to the idea of dual discrimination.

Women's success rates in state and federal courts were identical. However, the success rates varied dramatically throughout the federal circuit courts of appeals, with some being dismissed summarily and others prevailing on the combined discrimination claims.11

Helen Norton,12 one of the authors of the study, sees a major problem for plaintiffs in prevailing on claims of compound discrimination.

[T]he problem is the courts won't recognize the dual problem; the courts still have a long way to go in understanding the serious effect this double discrimination has on women's career advancement. . . . When older women do fight back (in the courts), they only win their cases 41 percent of the time. In fact, they did better in sex and age discrimination suits in the 1970s, when 69 percent of the plaintiffs won.13

Generally, one of the major findings of the Sex and Age Discrimination Study was the role lawyers and judges play in failing to recognize compound discrimination. While it would be commonplace for attorneys to allege separate claims under Title VII and the ADEA, rarely are compound claims advanced. Even when they are, many judges have failed to appreciate the distinct negative stereotypes suffered by older women and dismiss such claims, where older men and younger women are treated favorably.14

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