Do older women face more discrimination than younger women and can older women sue for sex discrimination when a younger woman is treated better?
This is known as “sex plus age” discrimination. Believe it or not the law is not settled on whether an older woman can claim sex (gender discrimination) based on a combination of being an older woman. The scenario usually goes something like this: An older woman applied for a promotion but is denied the promotion and a younger woman (or man) gets the job. The company can show that there are a lot of older men who they have given jobs, not older women. The older woman believes that the younger woman got the job because the boss prefers younger women. Another example of “Sex Plus” discrimination includes an employer who treats women with small children differently than women without small children with the “plus” being stereotypical assumptions regarding women’s childcare responsibilities. Another example of a subclass includes older women (i.e., restaurant only employs younger females). “Sex Plus” discrimination claims are not solely limited to women and have been brought by men such as a male who has family responsibilities for a young child. In other words it is a combination of both age and gender. Had the woman been younger, she would have obtained the job, or if she had been a man of any age she would have obtained the job. Neither the U.S. Supreme Court or the 5th Cir has yet to address the issue. The problem is that under the federal age discrimination statute the employee must show that “but for” her age she would not have suffered discrimination. Some courts have actually held that employees cannot even sue under both theories because if you pledge any other reason than age, you have admitted that you don’t have an age claim because it would not meet the “but for” test. However, other courts have allowed this type of discrimination. These courts recognize the reality that older women do face discrimination and this is based on their gender because older men do not face the similar discrimination when they get older. It seems clear that sex plus age discrimination is not in fact a type of age discrimination but is a type of gender discrimination. Will these claims survive in Texas? It is difficult to say.