"Sex-Plus" Discrimination During COVID-19 Layoffs

Older woman speaking on the phone in the office

The government response to the novel Coronavirus COVID-19 shut down businesses across the country. While most states are now reopening, many employees are finding that the COVID-19 layoffs weren’t as temporary as they thought. Older women in particular are finding that the overlap between continued restrictions on women-led industries and fears around Coronavirus vulnerabilities are creating fertile ground for “sex-plus” discrimination, leaving them without work even as the country reopens for business.

Older Women Face the Highest Numbers of COVID-19 Layoffs

April 2020 was undisputedly the worst month in recorded history for U.S. employment. In response to the COVID-19 pandemic, entire states shut down and approximately 20 million people lost their jobs. The unemployment rate in the United States skyrocketed from 4.4% to 14.7%, the highest level since the Great Depression. While those numbers have recovered slightly as the country reopened, nationwide unemployment was still at 11.1% in June 2020.

The force of the Coronavirus shutdown wasn’t felt with equal weight by everyone, though. According to an AARP Employment Data Digest, older women (over age 55) were hit the hardest, with an unemployment rate of 15.5% in April 2020. There were a variety of factors that converged to make older women most vulnerable to COVID-19 layoffs.

COVID-19 Shutdowns Hit Women-Led Industries Hardest

First, unlike in earlier recessions, this year’s shutdowns hit the service industry first. High-contact workplaces like retail stores, beauty salons, and restaurants -- where women make up the majority of employees -- were shut down first and have the strictest regulations when reopening. While factories hurried to retrofit and reopen and offices pushed staff into remote work, these industries simply closed. That left women more likely to face temporary layoffs, and made it more likely that those terminations would become permanent as small service industry businesses made difficult decisions about when and whether they would reopen.

Older Adults Face Layoffs Because of COVID-19 Vulnerabilities and Assumptions

Second, early studies revealed that older adults were at higher risk of complications if infected with COVID-19. This combined with existing assumptions that older workers cost more in health benefits and would be less able to adapt to the technology needed to work remotely than their younger counterparts. When companies sought to trim their workforce and stay open, older workers were more likely to be the ones laid off.

When these two factors overlapped, older women found themselves in the crosshairs. It is just one example of what happens when intersectional discrimination weighs most heavily on workers who fall into more than one minority category.

“Sex-Plus” Discrimination and Intersectionality in the Workplace

There are a variety of state and federal laws that protect against discriminatory employment practices. The most famous of these is Title VII of the 1964 Civil Rights Act. This federal law prohibits discrimination based on an employee’s inherent traits:

  • Race or color
  • Sex or gender (including pregnancy, gender identity, and sexual orientation)
  • National origin
  • Religion

Any time an employee is targeted because of one or more of those traits, she or he can file a complaint with the Equal Employment Opportunity Commission (EEOC). Intersectional employment actions give an employee a “sex-plus” discrimination claim based on the overlap of discriminatory conduct. For example, someone fired because she was a black woman would have an EEOC claim even if she wouldn’t have faced the same discrimination as either a white woman or a black man. Intersectional discrimination has been protected since at 1980, at least when both traits fall under Title VII’s umbrella of protection.

But Title VII doesn’t shield against age discrimination. At the federal level, ageism is the target of a separate law, the Age Discrimination in Employment Act (ADEA). Even though this law has been in effect nearly as long as Title VII, it has different rules about when and how older workers can bring claims against their employers. In some parts of the country, those differences can create problems for older employees claiming sex-plus discrimination based on a combination of sex and age.

New York Human Rights Act Brings Intersectional Discrimination Claims Under One Umbrella

There is good news for those older women facing COVID-19 layoffs closer to home. The New York State Human Rights Law doesn’t draw the same distinctions between inherent traits as the federal law. At the state level age, sex, race, and many other traits are all protected under the same statute, with the same procedures. This makes it easier to pursue sex-plus discrimination claims and raise issues of intersectionality under the state law.

The law also protects against a wider variety of ageism. While the ADEA only applies to employees over age 40, and then only for discrimination based on assumptions that they are “too old” to do the job, the New York law protects against anyone age 18 or older from any employment decision made because of the individual’s age. That means that New York employees facing sex-plus discrimination in the wake of the Coronavirus have access to broader protections than their counterparts in other parts of the country.

At Eisenberg & Baum, LLP, our gender discrimination attorneys look beyond sexism to consider a wide variety of intersectional discrimination. We want to help our clients be compensated for the harm they suffered from sex-plus discrimination and layoffs based on false assumptions about their vulnerability to COVID-19, gender roles, or technical abilities related to age. From our office in the heart of New York City, we will review all aspects of your employment history to identify discrimination, and help you consider all your options under state and federal law. Contact us today to schedule a consultation with one of our attorneys.

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