Courts Blind To Double Whammy

In 1990, Adela Izquerdo Prieto, a nightly news anchor, filed a sex and age discrimination lawsuit against her employer, a public television station in San Juan, Puerto Rico.

Prieto, 42, replaced by a woman who was 28, charged the station manager said a woman in her 30s is “elderly” and that he needed “new faces that are young, attractive and refreshing.” Although a federal jury found for Prieto, the decision was reversed by the 1st U.S. Circuit Court of Appeals, and she lost.

Prieto’s allegations are typical of what legal advocates call “the double whammy” of sex and age discrimination: Because she is female, she is expected to be more attractive; because she is in her 30s, she is “old.”

Another example is Dorothy Murdoch, an employee of B.F. Goodrich Co. in Akron, Ohio. In 1990, after working for the company 18 years, Murdoch sued, charging she had twice been passed over for promotion by younger men - men she trained for their new, supervisory jobs. The inventory control analyst was 59 years old.

Murdoch said her managers created a “hostile” workplace for older women and excluded them from training programs. She, too, lost. The Ohio state court ruled since younger women and older men had not been discriminated against, there was neither sex nor age discrimination and therefore Murdoch had no case.

In recent months, my phone has been ringing off the hook with similar-sounding complaints from women of sex and age discrimination.

Federal age discrimination laws kick in at age 40, although I have observed too often that women only 25 are considered “old” in some fields.

By the end of the decade, one in three Americans will be 50 and older, and the possibility of older and midlife working women suffering dual discrimination is underscored by the numbers: There are 25 million U.S. employed women ages 40 to 65.

“When older women do fight back (in the courts), they only win their cases 41 percent of the time,” said Helen Norton, director of the equal opportunity program of the Women’s Legal Defense Fund, a national nonprofit advocacy group based in Washington.

“In fact, they did better in sex and age discrimination suits in the 1970s, when 69 percent of the plaintiffs won.”

Norton says part of the reason for the plaintiffs’ decline in favorable decisions is that judges appointed in the 1980s, during the Reagan and Bush administrations, “tend to be more hostile to civil rights.”

To find out how women fare in sex and age discrimination suits, Norton, who earned her law degree at the University of California at Berkeley, researched 335 such cases filed in federal and state courts from 1975 to 1995. Of that number, 281 were filed by women. The study was funded by the women’s initiative program of the American Association of Retired Persons.

“The problem is, the courts won’t recognize the dual problem,” said the attorney, whose work at the Women’s Legal Defense Fund focuses on federal laws that prohibit sex discrimination. “The courts still have a long way to go in understanding the serious effect this double discrimination has on women’s career advancement.”

The study, “Employment Discrimination Against Mid-life and Older Women: How Courts Treat Sex and Age Discrimination Cases,” also found:

Plaintiffs lost 59 percent of the time.

Women most successful in winning their cases sought or held executive or managerial jobs.

White plaintiffs were significantly more likely to win than African-American or Hispanic plaintiffs.

Only 10 percent of the courts were receptive to the idea of dual discrimination.

“We need to do more education of the decision makers - lawyers, judges and especially working women - about the dual discrimination women face based on age and gender,” Norton said. “The issue has to be taken seriously.”

She urges women to “take a look at how women are doing at the firm before you accept a job offer and when you don’t get the promotion you deserve, find out why. Talk to your immediate supervisor, and if you have no satisfaction, go to the human resources department.”

Norton says a lawsuit is not the first best option. “But you should be informed about your legal rights,” she advises. “And keep your eyes open.”

For a free copy of the study, write to Women’s Legal Defense Fund, 1875 Connecticut Ave. NW, Suite 710, Washington, D.C. 20009.

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