Abstract
Age and disability discrimination were not part of the first wave of anti-discrimination laws. Race discrimination was the primary target of that initial wave, with sex discrimination added as an almost embarrassing afterthought.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
The insertion of language into the Civil Rights Act of 1964 banning sex discrimination by Virginia Congressman Howard W. Smith, who strongly opposed all civil rights legislation, is widely seen as an act of political gamesmanship designed to defeat passage of the Act by adding controversial amendments. Smith’s amendment to the Act was greeted with laughter among fellow members of Congress (Freeman, 1991). In Meritor Savings Bank v. Vinson, Chief Justice William Rehnquist explained the unusual legislative history underlying the addition of sex discrimination to the Civil Rights Act of 1964:
The prohibition against discrimination based on sex was added to Title VII at the last minute on the floor of the House of Representatives. The principal argument in opposition to the amendment was that ‘sex discrimination’ was sufficiently different from other types of discrimination that it ought to receive separate legislative treatment. This argument was defeated, the bill was quickly passed as amended, and we are left with little legislative history to guide us in interpreting the Act’s prohibition against discrimination based on ‘sex.’
477 U.S. 57, 63–64 (internal citations omitted).
- 2.
See Nielsen, Nelson, and Lancaster (2010) (showing that 40% of a random sample of federal employment discrimination cases involved a race claim, 37% involved a sex claim, 22% an age claim, and 19% a disability claim). See also Clermont and Schwab (2009) (analyzing all federal district court discrimination cases from 1998 to 2000 for which the Administrative Office gives a single US code section, and finding that Title VII cases comprise 68.4%, Americans with Disability Act claims comprise 8.8%, and Age Discrimination in Employment Act claims comprise 7.6%).
- 3.
See, e.g., Austin v. Norfolk Southern Corp., 158 Fed. Appx. 374, 381 (3rd Cir. 2005) (noting that sexual preference is not a protected category under Title VII); Klein v. McGowan, 36 F. Supp. 2d 885, 890 (D. Minn. 1999) (“Title VII clearly does not prohibit harassment based on the victim’s sexuality”).
- 4.
See, e.g., Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002) (holding that the original ADA phrase “substantially limited” required plaintiffs claiming a disability prove their disability “presents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives”); Sutton v. United Air Lines, 527 U.S. 471 (1999) (holding that potential disabilities were to be evaluated in light of any mitigating medical devices used by the person claiming the disability).
- 5.
The purpose of the ADAA 2008 is to extend the scope of disability protection by making it easier for individuals to establish that they suffer from a “disability” within the meaning of the ADA. In particular, the ADAA expressly overturned two Supreme Court decisions – Sutton v. United Air Lines, 527 U.S. 471 (1999), and Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002) – that Congress perceived as unjustifiably narrowing the scope of protections afforded by the ADA.
- 6.
One particularly tragic case where sex was not as obviously apparent was the murder of Teena Brandon in a small Nebraska town in 1993. Brandon was born a female but lived as a male and was romantically associated with other women. The Academy Award-winning film “Boys Don’t Cry” is based on this story. See also Brandon v. Lotter, 976 F. Supp. 872, 878 (D. Neb. 1997), for a good summary of the unusual facts of this case.
- 7.
See Randall Kennedy, Racial Passing, 62 Ohio St. L.J. 1145 (2001). See also St. Francis College v. Al-Kharazraji, 481 U.S. 604, 610 n.4 (1987) (“Many modern biologists and anthropologists … criticize racial classifications as arbitrary and of little use in understanding the variability of human beings … . Clear-cut categories do not exist”). Such ambiguity in racial classification is likely to increase considering 2000 Census figures which indicate that 4.6 million, or 1.6% of the population, designated themselves as multiracial. US Census Bureau, available at http://www.census.gov/hhes/www/housing/housingpatterns/pdf/beyond_black_and_white.pdf (last visited August 17, 2009).
- 8.
See Bragdon v Abbott, 524 U.S. 624 (1998) (holding that HIV is a disability under the Americans with Disabilities Act).
- 9.
Residential segregation of African Americans was highest among the various racial groups, followed by Hispanics or Latinos. Moreover, as the African-American population increased, African Americans became less likely to come into contact with non-Hispanic Whites and more likely to live near other African Americans (US Census Bureau, 2002). For example, the average African-American metropolitan resident lives in a census tract that is 51% black and around 30% of blacks live in neighborhoods that were 80% black, all this despite the fact that African Americans comprise only 13.5% of the population (Center on Urban & Metropolitan Policy).
- 10.
People with disabilities are less likely to be employed than non-disabled workers; disabled workers earn significantly less than non-disabled workers; and the more severe the disability, the bigger the gap in pay. For example, only 28.6% of the 18-million working-age people reporting a disability were employed in 2002, compared with 76.6% of those not reporting a work disability. Of these unemployed people with disabilities, approximately two-thirds want to be employed (Schur, Kruse, & Blanck, 2005). Moreover, the median income for people with disabilities is lower. The median annual income for disabled workers is $30,000, while the median annual income for non-disabled workers is $36,000 (Martinez, 2008).
- 11.
See, e.g., Grutter v. Bollinger, 539 U.S. 306 (2003) (upholding the affirmative action admissions policy of the University of Michigan Law School, but cautioning that race-conscious admissions policies should disappear over time); Gratz v. Bollinger, 539 U.S. 244 (2003) (invalidating the University of Michigan’s undergraduate affirmative admissions policy, which awarded points to minority students, on the ground that the policy was too mechanistic and thus not narrowly tailored to achieve the University’s compelling interest in diversity); Regents of the University of California v. Bakke, 438 U.S. 265 (1978) (allowing race to be one consideration in the admissions process, but prohibiting the use of racial quotas).
- 12.
In International Union v. Johnson Controls, Inc., the United States Supreme Court noted that under 703(e)(1) of Title VII, an employer may discriminate on the basis of “sex” “in those certain instances where … sex … is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.” 499 U.S. 187, 199 n.3 (1991).
- 13.
See, e.g., AT&T Corp. v. Hulteen, 129 S. Ct. 1962 (2009) (holding that an employer does not automatically violate Title VII if it pays pension benefits calculated under an accrual system applied only prior to the Pregnancy Discrimination Act of 1978 – which legislatively prohibits any disadvantageous treatment of employees on the basis of pregnancy, childbirth, or related medical conditions – that gave less retirement credit for pregnancy leave than for medical leave generally).
- 14.
See, e.g., Brown v. Bowen, 905 F.2d 632, 637 (2nd Cir. 1990) (“There is simply no constitutional basis for [invalidating discriminatory practices that benefit the elderly]. Not even the Age Discrimination Act outlaws discrimination in favor of the elderly. See 42 U.S.C. §§ 6101–6107.”) (emphasis in original).
- 15.
See, e.g., Moysis v. DTG Datanet, 278 F.3d 819 (8th Cir. 2002) (upholding jury verdict that employer fired employee because of his brain injury, rejecting employer’s argument that it fired employee because of customer complaints); Kiel v. Select Artificials, Inc., 169 F.3d 1131 (8th Cir. 1998) (applying McDonnell Douglas analysis in determining that employee was fired for insubordination rather than his disability);
- 16.
See, e.g., E.E.O.C. v. Chevron Phillips Chemical Co., 570 F.3d 606 (5th Cir. 2009) (“[w]hen an employer does not engage in a good faith interactive process to accommodate an employee’s disability, that employer violates the Americans with Disabilities Act (ADA), including when the employer discharges the employee instead of considering the requested accommodations; once the employee presents a request for accommodation, the employer is required to engage in the interactive process so that together they can determine what reasonable accommodations might be available”).
- 17.
Voter turnout goes up dramatically as one gets older. For example, the voting turnout in the 2004 presidential election was over 70% for those 65 and older, while the turnout of 18–24 year-olds was a meager 45% (Warren, 2008).
- 18.
Persons age 40 and over comprise 53% of the labor force, and those age 65 and over comprise 4% (Bureau of Labor Statistics).
- 19.
In 2007, women comprised 50.7% of the population in the United States (US Census Bureau). Although men historically have voted at higher rates than women, those roles have reversed since the Presidential election of 1984. For example, 69% of women registered to vote in the 2006 congressional election, compared to only 66% of men; and women were more likely than men to actually vote (49% among women compared with 47% among men; US Census Bureau).
- 20.
The National Organization for Women (NOW), for example, is the largest organization of feminist activists in the United States. It boasts of 500,000 contributing members. In its own words, NOW works to eliminate discrimination and harassment in the workplace, schools, the justice system, and all other sectors of society; secure abortion, birth control, and reproductive rights for all women; end all forms of violence against women; eradicate racism, sexism, and homophobia; and promote equality and justice in our society (“About Now”). Of course, groups such as NOW are subject to intense criticism, often from various pro-life, religious, and politically conservative groups. For example, one columnist explains that, “[t]he National Organization of Women has long been considered by the political right as a bunch of bra-burning, abortion-loving feminazis”) (Wall, 2008).
- 21.
In 1973 only 44.7% of women worked outside the home. That figure increased to 57.4% by the end of the 1980s and 59.5% in 2008. In contrast, 78.8% of men were in the labor force in 1973; 76.4% in 1989; and 73% in 2008 (US Census Bureau).
- 22.
Passage of the Pregnancy Discrimination Act (PDA) in 1978 demonstrates the growing influence of women in the workforce and issues concerning their employment. “Congress added the Pregnancy Discrimination Act to Title VII … to make it clear that it is discriminatory to treat pregnancy-related conditions less favorably than other medical conditions.” AT&T Corp. v. Hulteen, 129 S. Ct. 1962, 1964 (2009), citing, Newport News Shipbuilding and Dry Dock Co. v. E.E.O.C., 462 U.S. 669 (1983). Similarly, the Family Medical Leave Act guarantees that covered employers must grant an eligible employee up to 12 weeks of unpaid leave during any 12-month period for the birth and care of the newborn child of the employee (US Department of Labor).
- 23.
From 1990 until today, the percentage of the female population working outside the home grew only 2%, from 57.5% in 1990 to 59.5% in 2009 (US Census Bureau).
- 24.
In recent decades the proportion of African Americans comprising the American population has hovered around 14% (US Department of Health and Human Services). In fact, dating back all the way to the mid-nineteenth century, the percentage of African Americans has hovered between 10 and 14%. (Parrillo 2005, at 138).
- 25.
The largest and fastest-growing minority group is Hispanics (or Latinos), who reached 46.9 million in 2008, an increase of 3.2% from 2007. Asians are the second fastest-growing minority group, increasing by 2.7% from 2007 to 2008 (US Census Bureau News, 2009).
- 26.
Nearly one-third of Americans (approximately 79 million people) were born between 1946 and 1964. In the coming years, the first wave of baby boomers will approach retirement age. For the time being, however, nearly half of the American working population will be in their 50 s and 60 s.
- 27.
In the ADA Amendments Act of 2008 (ADAA 2008), Congress explained how the Supreme Court limited the scope of the ADA:
While Congress expected that the definition of disability under the ADA would be interpreted consistently with how courts had applied the definition of handicap under the Rehabilitation Act of 1973, that expectation has not been fulfilled; the holdings of the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases, and in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) have narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect.
H.R. Rep. 110–730(1), 2008 WL 2502300.
- 28.
ADAA Section 4(a)(E)(i) amends the ADA by mandating that the “determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigations measures” such as medication, medical supplies, equipment, use of assistive technology, reasonably accommodations of auxiliary aids, or learned behavioral or adaptive neurological modifications.
- 29.
ADAA Section 4(a)(3)(D) amends the ADA by defining “disability” to include those suffering from an “impairment that is episodic or in remission” so long as “it would substantially limit a major life activity when active.”
References
“About NOW,” available at http://www.now.org/organization/info.html (last visited August 19, 2009).
Abrams, K. (1994). Title VII and the complex female subject. Michigan Law Review, 92, 2479–2540.
ADA Amendments Act of 2008 (ADAA 2008), 110 Pub. L. No. 325, 122 Stat. 3553 (codified in scattered sections of 42 U.S.C. ch. 126).
Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101–12213.
Bureau of Labor Statistics. Current population survey, Table 3. Employment status of the civilian noninstitutional population by age, sex, and race. Available at http://www.bls.gov/cps/cpsaat3.pdf (last visited December 23, 2009).
Center on Urban & Metropolitan Policy. Racial segregation in the (2000) census: Promising news. Available at http://www.brookings.edu/es/urban/census/glaeser.pdf (last visited August 17, 2009).
Clermont, K. M., & Schwab, S. J. (2009). Employment discrimination plaintiffs in federal court: From bad to worse. Harvard Law and Policy Review, 3, 103–132, at 117 Display 6.
Cornucopia of Disability Information, available at http://codi.buffalo.edu (last visited August 18, 2009).
Freeman, J. (1991). How ‘sex’ got into title VII: Persistent opportunism as a maker of public policy. Law and Inequality; A Journal of Theory and Practice, 9(2), 163–184. Available at http://www.jofreeman.com/lawandpolicy/titlevii.htm
Martinez, S. (2008, October 5). Disabled workers find playing field not level for them. The Seattle Times . available at http://seattletimes.nwsource.com/html/businesstechnology/2008228695_disabledjobs.html (last visited Aug 18, 2009).
Nielsen, L. B., Nelson, R. L., & Lancaster, R. (2010). Individual justice or collective legal mobilization? Employment discrimination litigation in the post-civil rights United States. Journal of Empirical Legal Studies, 7, 175–201, at Appendix Table A1.
Parrillo, V. N. (2005). Diversity in America (2nd ed.). Thousand Oaks, CA: Pine Forge Press.
Schur, L., Kruse, D., & Blanck, P. (2005). Corporate culture and the employment of persons with disabilities. Behavioral Sciences and the Law, 23, 3–20.
US Census Bureau. (2002). Special reports, “Racial and ethnic residential segregation in the United States: 1980–2000” issued August 2002. Available at http://www.census.gov/hhes/www/housing/housing_patterns/pdf/front_toc.pdf (last visited August 17, 2009).
US Census Bureau. State & county quickfacts. Available at http://quickfacts.census.gov/qfd/states/00000.html (last visited August 19, 2009).
US Census Bureau. Household data; annual averages. Available at http://www.bls.gov/cps/cpsaat2.pdf (last visited December 23, 2009).
US Census Bureau. Labor force statistics from the current population survey. Available at http://www.bls.gov/cps/ (last visited August 19, 2009).
US Census Bureau. Voting and registration in the election of November 2006, at 6. Available at http://www.census.gov/prod/2008pubs/p20-557.pdf (last visited August 19, 2009).
US Census Bureau News. (2009, May 14). Census bureau estimates nearly half of children under age 5 are minorities. Available at http://www.census.gov/Press-Release/www/releases/ (last visited August 19, 2009).
US Department of Health and Human Services. Health, United States, 2008. Available at http://www.cdc.gov/nchs/data/hus/hus08.pdf#001 (last visited August 18, 2009).
US Department of Labor. Family and medical leave act. Available at http://www.dol.gov/esa/whd/fmla/ (last visited August 17, 2009).
Wall, K. (2008, october 9). Despite criticisms, Palin inspires true feminism. The Daily Cardinal. Available at http://www.dailycardinal.com/ article/20785 (last visited August 18, 2009).
Warren, K. F. (2008). Encyclopedia of US campaigns, elections, and electoral behavior. Los Angeles: Sage publications, Inc.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2011 Springer Science+Business Media, LLC
About this chapter
Cite this chapter
Schwab, S.J., Glissman, G. (2011). Age and Disability Within the Scope of American Discrimination Law. In: Wiener, R., Willborn, S. (eds) Disability and Aging Discrimination. Springer, New York, NY. https://doi.org/10.1007/978-1-4419-6293-5_8
Download citation
DOI: https://doi.org/10.1007/978-1-4419-6293-5_8
Published:
Publisher Name: Springer, New York, NY
Print ISBN: 978-1-4419-6292-8
Online ISBN: 978-1-4419-6293-5
eBook Packages: Behavioral ScienceBehavioral Science and Psychology (R0)