Intersectional Discrimination

Keywords: Intersectionality, intersectional discrimination, labor economics, public economics, employment law, age discrimination, health insurance

Title: Intersectional Discrimination
Article by: Rebecca Dingle, Student Assistant, The Baldy Center

Joanne Song McLaughlin, an Associate Professor in the Department of Economics at UB, gives us insight into how the intersectionality of age and gender relates to discrimination laws and social policy. Intersectionality is an analytical framework that provides an understanding of how people’s demographic characteristics can interact to limit individual’s equal opportunities. McLaughlin’s research concentrates on intersectional discrimination, as well as labor and public economics, employment law, age discrimination law, and health insurance mandates. She is also the Director of Undergraduate Studies for the Economics Department, and she has recently joined The Baldy Center Advisory Council, where she helps guide The Baldy Center in developing policy that supports its vision and mission.   

McLaughlin’s 2019 article, “Limited Legal Recourse for Older Women’s Intersectional Discrimination Under the Age Discrimination in Employment Act,” in The Elder Law Journal highlights changes in labor demographics since the 1967 federal Age Discrimination in Employment Act (ADEA) and argues that this aging workforce brings the need for an intersectional approach under the ADEA. Currently, the ADEA does not allow older women to compare themselves to subsets of groups from young workers or male workers. This means that older women can only choose to bring cases of discrimination forward as an age issue or as a gender issue. They cannot, for example, compare their treatment to that of just older men or younger women. They would have to compare it as a whole to anyone younger than them or to any males. This ignores the fact that the treatment of older women may differ from that of younger women or older men specifically, further compounding the difficulties they face. 

McLaughlin gives the example of a company with 20 employees, five each of young women, young men, older men, and older women. If three of the older women were fired, and only one fired from each of the remaining groups, older women would be facing a discharge rate three times higher than any of the other groups. As the law stands, older women could file for age discrimination, in which they would be grouped with the older men at a discharge rate of 4/10 versus 2/10 for the younger individuals, or file based on gender, where the stats would stay the same. McLaughlin states that “if a court allowed older women to bring their case as an age-plus-sex (or sex-plus-age) cause of action, the data would indicate that the probability of being discharged for older women is estimated to be 40 percentage points higher… than for the other groups… However, if this claim were to be viewed solely as either sex or age discrimination, the estimated probability of being discharged for older women is only 20 percentage points higher…” Because of this, McLaughlin pushes for an “age-plus-sex” or “sex-plus-age” approach to bringing discrimination claims, which would allow courts to take both factors into consideration simultaneously and allow older women to compare their treatment to that of older men or younger women.

McLaughlin’s 2020 LABOUR article, “Falling Between the Cracks: Discrimination Laws and Older Women,” was supported in part by research grants from The Baldy Center. In this article, McLaughlin uses the Annual Social and Economic Supplement (ASEC) portion of the Current Population Survey (CPS) from 1963 to 1971 to examine the effectiveness of both the ADEA and state age discrimination laws. The data shows a striking difference in the effectiveness of age discrimination laws. With the implementation of such laws, the probability of older men being employed increased by 9.5 percentage points, but only 5.2 percentage points for older women. This empirically supports her argument that both the ADEA and state age discrimination laws are limited in addressing difficulties faced by older women. 

In conclusion, McLaughlin advocates not only for an intersection of age and gender when it comes to policy and law-making, but for an expansion in all considerations of intersectional discrimination, such as that of age and disability as well. Intersectional approaches such as these offer more holistic solutions and a way to establish law and social policy that provides equality for all workers in the workplace. 

Citations:

McLaughlin, Joanne Song. 2020. "Falling Between the Cracks: Discrimination Laws and Older Women." LABOUR34(2): 215-238.

McLaughlin, Joanne Song. 2019. “Limited Legal Recourse for Older Women’s Intersectional Discrimination Under the Age Discrimination in Employment Act.” The Elder Law Journal 26(2): 287-321.

Keywords: Intersectionality, intersectional discrimination, labor economics, public economics, employment law, age discrimination, health insurance