‘Gendered Ageism’: Discrimination Against Older Women in the Workplace

September 15th, 2023

Each of us is more than the sum of our parts. No single characteristic defines us; rather, we are an amalgamation of different traits, inclinations, experiences and perspectives.

For some people, their unique combination of biology and background means they’re members of more than one class that the law protects from workplace discrimination and harassment. A Black woman can experience prohibited discrimination premised on her race and her gender. A gay Jewish man may be the victim of harassment and abuse because of his religion and sexual orientation. 

Known as “intersectional discrimination,” this type of workplace conduct is widespread and increasingly recognized by courts as the basis for claims under Title VII of the Civil Rights Act of 1964 and other federal and state anti-discrimination laws. When the claim involves discrimination against a woman because of her gender and membership in another protected class, it’s sometimes called a “sex-plus” claim. And when age is the other asserted basis for an employer’s discriminatory actions (e.g., a woman in her 50s who’s terminated because of her sex plus her age), that’s ”gendered ageism.” It’s illegal, and can be the basis of a claim for compensation and other relief.

Intersectional Discrimination Defined and Recognized

The analytical framework for intersectional discrimination was popularized by Black legal scholar Kimberlé Crenshaw, who argued that “different forms of inequality […] operate together and exacerbate each other.” The Center for Intersectional Justice describes intersectionality as:

“The ways in which systems of inequality based on gender, race, ethnicity, sexual orientation, gender identity, disability, class and other forms of discrimination “intersect” to create unique dynamics and effects. For example, when a Muslim woman wearing the Hijab is being discriminated, it would be impossible to dissociate her female from her Muslim identity and to isolate the dimension(s) causing her discrimination.”

Over the past two decades, many federal and state courts have repeatedly recognized and allowed intersectional discrimination and harassment claims to proceed as employment claims when employees experienced disparate treatment because of their membership in more than one protected class. As one federal court noted, “Some characteristics, such as race, color, and national origin, often fuse inextricably. Made flesh in a person, they indivisibly intermingle. Title VII prohibits employment discrimination based on any of the named characteristics, whether individually or in combination.”

Sex-Plus-Age Discrimination Claims

Many cases that recognize intersectional discrimination involve older female workers who claim they suffered adverse employment actions based on their gender and ages. Many state laws, including the Minnesota Human Rights Act, prohibit both age and gender discrimination. While “age” isn’t a protected class under Title VII, the federal Age Discrimination in Employment Act of 1967 (ADEA) prohibits age-based discrimination in the workplace, making a gendered ageism case viable under federal law as well. 

Despite its illegality, workplace age discrimination is rampant in a business, societal, and technological culture that often venerates youth over experience. Approximately 453,000 American workers filed age discrimination claims with the Equal Employment Opportunity Commission between 1997 and 2020, while about one in five workers over age 40 and one in four workers over age 60 believe they have experienced age discrimination in the workplace, according to a Senior Living survey. 

While men and women can experience age-based discrimination, studies have shown that it disproportionally affects female workers, especially women of color. A 2023 analysis of gendered ageism in the workplace noted that: 

“Age discrimination is not equal; ageism tends to be gendered. … Studies exploring the well-being of working women have indicated that women are more likely to be victimized by all forms of discrimination, including ageism. In one study of 6,642 women over 18, 63% of those over 50 stated that they were discriminated against. Women, particularly women of color, are further subjected to the intersecting prejudices of age, ethnicity, and gender bias.” (citations omitted)

A 2020 federal appellate decision illustrates how courts recognize and treat sex-plus-age discrimination claims. In Frappied v. Affinity Gaming Black Hawk, LLC, the plaintiffs brought claims under Title VII and the ADEA, alleging their employer terminated them based on their ages and gender. Reversing the trial court’s dismissal of their claims, the appellate court held that “sex-plus-age claims are cognizable under Title VII,” noting that “Ample precedent holds that Title VII forbids ‘sex-plus’ discrimination in cases in which the ‘plus-’  characteristic is not itself protected under the statute.” 

The court thus concluded that: 

“Intersectional discrimination against older women is a form of discrimination based on sex stereotypes that Title VII was intended to prohibit. And discrimination against older women that does not target older men is a form of sex discrimination.”

Whether based on one protected trait or a combination of characteristics, workplace discrimination is illegal. It unfairly deprives qualified individuals of opportunities or subjects them to hurtful and demeaning behavior or comments. No one should have to abide by or endure such treatment. If you suspect that you’ve been a victim of prohibited discrimination, including sex-plus-age discrimination/gendered sexism, we welcome the opportunity to meet with you. During a free, confidential consultation, our employment discrimination lawyers will listen to your story, answer your questions, help determine if you have grounds to pursue a claim and explore options for addressing illegal conduct. Call Halunen Law at 612-605-4098 or complete our contact form to arrange for your consultation.

As a member of Halunen Law’s Employment Practice Group, Pamela Johnson brings an impressive reputation for advocacy and achievement. Her clients benefit from her breadth of experience, stellar track record, and exceptional insight.