Extending the Sex-Plus Discrimination Doctrine to Age Discrimination Claims Involving Multiple Discriminatory Motives

Abstract

Federal employment discrimination statutes make it unlawful to discriminate against employees on the basis of certain protected characteristics, including race, color, religion, national origin, sex, disability, and age. Under Title VII of the Civil Rights Act of 1964, an employer may not discriminate against an employee based on a combination of two protected traits, such as race and sex. Nevertheless, these claims—which this Article refers to as multiple-motive claims—tend to fail when one of the protected traits is age. Whether brought under Title VII or under the Age Discrimination in Employment Act of 1967 (ADEA), this Article argues that courts should authorize discrimination claims combining age with some other immutable characteristic, like race or gender, and proposes an amendment to the ADEA that would authorize such claims.