Diversity & Inclusion

Biased bias: when protected classifications intersect

by Connor Beatty

If your company regularly interviews and hires qualified female applicants for all available positions, you may think the company is in a strong position to defend against gender discrimination lawsuits filed by rejected applicants. Similarly, if your company refrains from asking applicants about their age and interviews and hires applicants who happen to be older, you should be able to defend against an age discrimination claim, right? Not so fast.  Bias

Two recent studies found that older female applicants are less likely to be offered a job than older male applicants. What are the legal ramifications of the studies’ findings for employers? If an employee cannot prove that she was discriminated against because of her membership in a protected class, can she nevertheless argue that she was discriminated against because of her membership in a set of protected classes?

The studies

Two studies published by the National Bureau of Economic Research suggest that age discrimination in the hiring process is more likely to affect female workers than male workers. Both studies used the same technique. They sent out fake résumés with equal qualifications and different names (either a typical male name or a typical female name) or different graduation dates. The first study found that 19 percent of women age 29 to 31 were called back compared to 12 percent of women age 64 to 66. By contrast, there was not a statistically significant difference in the rate of call backs between older and younger male applicants for most jobs (younger male applicants did have a higher callback rate for janitorial positions). The second study was limited to female applicants, but it also found that younger female jobseekers were called back at a higher rate than older female applicants.

David Neumark, the first study’s author, stated that one of the explanations for the findings is that discrimination laws do not adequately protect individuals who sit at the intersection of multiple protected classes.

Intersectional discrimination

Courts have long held that an employee can establish a viable claim by alleging that she was discriminated against because of her race and another protected characteristic (e.g., sex or gender). The sex-plus-race theory was first recognized by an appellate court in 1980. However, courts have been reluctant to apply a similar standard to sex-plus-age cases. One reason for the distinction is that age and sex discrimination claims are filed under different federal statutes. Sex discrimination allegations are asserted under Title VII of the Civil Rights Act of 1964, while age discrimination claims are filed under the Age Discrimination in Employment Act (ADEA). Although Title VII allows an employee to show that sex discrimination was a “motivating factor” in an adverse employment action, most courts interpret the ADEA to require an employee to prove that “but for” her age, she would not have suffered an adverse employment action.

That is not to suggest that employers can discriminate against older female workers with impunity. A few courts around the country have recognized the viability of the sex-plus-age discrimination theory, so a federal court would not have to go too far out on a limb to reach a similar conclusion. Additionally, an older female employee who feels that she has been discriminated against can always file two separate claims against her employer (one for age discrimination and one for sex discrimination). Depending on the facts of the case, the employer may not be able to point to older male employees and younger female employees to defeat the claims.


Employers should regularly review their hiring practices to ensure they comply with all antidiscrimination laws. As the studies show, things aren’t always as simple as you might think. A troubling trend may reveal itself only when you look at potential intersectional discrimination claims. Although sex-plus-age claims are not widely recognized at this time, sex-plus-race claims certainly are.

Connor Beatty is an attorney with Brann & Isaacson in Lewistonn, Maine. He may be contacted at cbeatty@brannlaw.com.

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