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Age is a number, but discrimination is tricky

The federal Age Discrimination in Employment Act protects people 40 and older. But is it ageism to discriminate against people over 50 compared with those in the 40-to-50 bracket? A federal appeals court has said yes — but because several other circuit courts have said no, the case is very likely to go to the U.S. Supreme Court in the near future. The issue raises questions about how discrimination should be measured when it might exist along a continuum.

As written, the age-discrimination act looks like other provisions of civil-rights law that prohibit discrimination on the basis of “race, color, religion, sex, or national origin.” Indeed, its key language was copied from Title VII with the word “age” substituted for the other characteristics.

What makes this act a little different is that another provision limits its protection to “individuals who are at least 40 years of age.” Thus, if an employer prefers 25-year-olds to 30-year-olds, or vice versa, that isn’t covered by the law.

In this sense, the law doesn’t turn on categorical distinctions like race or sex. It doesn’t prohibit ageism per se. It prohibits ageism against people over 40.

That raises the question of how the law works when an employer doesn’t discriminate against everyone over 40, but only a subgroup. Pittsburgh Glass Works LLC, the defendant in the case decided last week, is alleged to have discriminated against people 50 and older in the course of layoffs in 2009. It did not, however, discriminate against people younger than 50.

The basis for the allegations is a statistical study of the layoffs. The plaintiffs argued that the layoff patterns constituted evidence of disparate impact — a form of discrimination prohibited by the statute. Even if the layoff didn’t explicitly target people older than 50, it had that effect.

The company defended itself in part by pointing out that if all workers over 40 are included in the analysis, there’s no statistically significant finding of disparate impact. It went on to argue that under the act, a plaintiff shouldn’t be able to allege discrimination against a subgroup of those protected by the statute, such as people over 50. The discrimination must be shown to be against all those covered by the statute, not just some of them.

Three other circuit courts had accepted this argument before, by reading the age-discrimination act literally and holding that it does not prohibit discrimination against subgroups. In the Pittsburgh Glass Works case, however, the U.S. Court of Appeals for the 3rd Circuit rejected it.

The 3rd Circuit got the case right. It makes no sense to treat age discrimination as an on-off switch: Age is not a discrete category. There should be no safe harbor for discriminating against people older than 50 just because the employer thinks people 40-to-50 are good employees. The Supreme Court should take the case in resolve the circuit split in favor of this position.

But what makes the case so interesting and potentially important is what it implies for other forms of discrimination. Take race, which the courts have often treated as binary categories of white or black. In the course of explaining that age is a “continuous variable,” the 3rd Circuit argued that the same would not be true of race. Thus, the court said, in a racial disparate impact case, a court would have to weigh results for all black employees and compare them to white employees, not just a subgroup of the black employees. “By contrast,” the court went on, “a comparison group that omits employees in their forties is fully capable of demonstrating disparate impact because of the age.”

That sounds superficially correct but really isn’t. What if an employer discriminated against a subgroup of black employees, say those with names that it considered more stereotypically African-American? In that case, a statistical analysis of all blacks might fail to show discrimination.

And, of course, race itself isn’t necessarily what the 3rd Circuit called a binary category. There’s a strong tradition in the U.S., partly grounded in the history of legal racism, that considers multiracial people to be black if some of their ancestors are black. But that practice isn’t immutable. Race can be conceived as a continuum not so different from age.

The same is also true of sex. The legal system may be accustomed to thinking of everyone as either male or female, but as sophisticated gender analysis and the transgender movement have together shown, that analysis isn’t always so simple. Some people identify as belonging to a third sex or to none at all. Some people cross from one sex to another. Some belong to one biological sex but identify as a different gender.

The fight over whether it’s discrimination to require people to use the bathroom associated with their biological sex is a good example of how it’s a mistake to consider sex and gender binary. The position of Barack Obama’s administration is that prohibiting people from using the bathroom associated with their preferred gender is discrimination on the basis of sex. That depends on believing that sex isn’t a binary set of options, but something more complicated.

The upshot is that age isn’t as different from race and sex as a prohibited basis for discrimination as it might appear at first glance. The Supreme Court should keep that in mind if and when it considers subgroup discrimination.

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of Minnesota Lawyer or Bloomberg LP and its owners.


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