Millennials Turning 40 Can Sue For Age Discrimination, But...

... there's a catch if you're a woman. Welcome to the real world:

On Jan. 1, the oldest millennials, born in 1981, will turn 40 and officially become eligible to sue employers under the Age Discrimination in Employment Act (ADEA) of 1967.

It may seem silly to fret about age discrimination among a generation long vilified as the embodiment of entitled youth. But research shows that for many millennial women, age discrimination is already a reality — one that will become critical during the recovery from the coronavirus crisis, as discrimination tends to peak during and after recessions.

“Most people aren’t going to face age discrimination at 40, but there will be some women who will be facing age discrimination by then,” said Tulane economist Patrick Button, an expert on the ADEA and its effects.  (our emphasis)

For women, it's more than age discrimination.  Here's how age and gender discrimination manifests itself in the hiring/ re-hiring process:

... [E]mployers may assume a woman in her 40s is likely to have a child in elementary school, which could make her schedule less flexible and make her less available for early-morning or evening shifts.

The problem is, discrimination of either kind can be hard to prove in court if you're a woman, for a particular reason:

... [O]lder women fall between the cracks. In most courts, women must sue for either age discrimination under the ADEA or gender discrimination under Title VII of the Civil Rights Act — not both at once.

If they sue for age discrimination, older women have to prove they’re treated worse than younger workers. But to do so in court, they can use only data split by age, which will be diluted by data from older men, who can face less discrimination.

If they sue for gender discrimination, older women have to prove they’re treated worse than men. But to do so in court, they can use only data split by gender, which will be diluted by data from younger women, who can face less discrimination.  (our emphasis)

The obvious solution:  amend the ADEA and Civil Rights Act to make it possible to sue for both age and gender discrimination at the same time.  

Now, there's nothing unique about millennials entering into a discriminatory work environment due to their turning 40 -- they've been preceded by Gen Xers, Boomers, etc., who've all had to deal with it, or the threat of it, in their careers.  But, as the coronavirus pandemic has led to widespread un- and under- employment and a sea change in workplace structure, it's important that we "build back better" with protections in place especially for women who want to contribute, but face the dual bigotry of age and gender bias.  It should be a top priority for the Biden Administration and it's as- yet- unnamed Labor Secretary (she would be our pick).

(Photo:  via Bureau of Labor Statistics, DOL)