Unions' role in intersectional age discrimination litigation cases
| DOI | https://doi.org/10.1108/ER-09-2021-0394 |
| Published date | 25 October 2022 |
| Date | 25 October 2022 |
| Pages | 328-344 |
| Subject Matter | HR & organizational behaviour,Industrial/labour relations,Employment law |
| Author | Marsha Katz,Helen LaVan |
Unions’role in intersectional age
discrimination litigation cases
Marsha Katz
Department of Management, Governors State University,
University Park, Illinois, USA, and
Helen LaVan
Department of Management and Entrepreneurship,
DePaul University–Loop Campus, Chicago, Illinois, USA
Abstract
Purpose–How older workers pursue their employment discrimination claims is the focus of this study. This is
part of the broader question of how older, unionized employees pursuing their statutory rights fare in litigation
and how unions might organize and subsequently better protect older workers who have been discriminated
against.
Design/methodology/approach –This study is a random sample of 1889 litigated age discrimination cases
in Federal courts using NVivo to conduct a content analysis on unionization, individual, organizational and
legal variables.
Findings –An analysis of case characteristics and outcomes in cases filed under the Age Discrimination in
Employment Act indicated that older unionized workers pursuing their claims are more likely to have rulings
in their favor. Other demographic characteristics of the cases in which unionized workers prevailed include
seniority, disability, filing under Title VII and cases involving retaliation.
Research limitations/implications –Importantly, empirical legal scholarship, using the case as the unit of
analysis, will significantly add to the understanding of how age discrimination might be reduced through
litigation. Empirical legal scholarship strategies would also suggest identifying labor tribunal or arbitration
cases. Using content analysis would allow for a deep understanding at the micro level of the context that led to
the charges of age (or other types) of discrimination.
Practical implications –This study offers evidence that union representation can add value when older
employees are pursuing their rights in litigation.
Originality/value–This research focuses on individuals who have actually been discriminated against using
empirical legal scholarship, content analysis and big data analytics.
Keywords Age discrimination, Content analysis, Litigation, NVivo, Big data analytics
Paper type Research paper
Introduction
Protecting older workersfrom age discrimination in the United States involvesmultiple legal
protections. Theseinclude the Age Discrimination in Employment Act (Agediscrimination in
employment act, 1967), The Americans with Disabilities Act and Title VII of the 1964 Civil
Rights Act enforced by the Equal Employment Opportunity Commission(Laws enforced by
EEOC). The Age Discriminationiin Employment Act was passed more than 50 yearsago and
was amendedin 2008 to protect workers over the age of 40 (Age discriminationin employment
act, 1967). However, there are challenges to the belief that workers are adequately protected
from age discrimination by this legislation (Kaminer, 2016;Shinall, 2016).
Role of the EEOC
The Equal Opportunity Employment Commission is charged with initial enforcement.
In 2019, 15,573 age discrimination complaints were submitted to the Equal Employment
Opportunity Commission (EEOC). In addition, in the report to commemorate the 50th
anniversary of EEO legislation, various intersectional bases are reported (EEOC releases
fiscal year 2019 enforcement and litigation data, 2019).
ER
45,2
328
The current issue and full text archive of this journal is available on Emerald Insight at:
https://www.emerald.com/insight/0142-5455.htm
Received 9 September 2021
Revised 23 July 2022
Accepted 5 September 2022
Employee Relations: The
International Journal
Vol. 45 No. 2, 2023
pp. 328-344
© Emerald Publishing Limited
0142-5455
DOI 10.1108/ER-09-2021-0394
Retaliation
If the two parties cannot resolve the dispute at the EEOC, costly litigation can result (Berrey
et al., 2012;Gough, 2014;Nielsen et al., 2010;Maffie, 2019). Whether an individual prevails or
not in a claim of discrimination, it is possible to file a charge of retaliation, hence possibly
resulting in a second round of litigation. Reports from the EEOC show 37,632 retaliation
charges, which is 55.8% of all charges filed (EEOC fiscal year 2020 report).
Calls for legal modifications
There have also been calls for modifications of existing laws (Harper, 2012;Schwab and
Glissman, 2011). These include closer integration between the ADA and the ADEA, allowing
for larger damages and intersectional claims for older women. However, even if there is no
litigation, the organization is less productive when older individuals are not appropriately
managed (Veth et al., 2017).
Intersectionality
More recently, there has beena focus on intersectionality, both from individual demographic
characteristicsand the multiplicity of legal bases, when employeespursue their rights. Hester
et al. (2020) noted increasecomplexity in understanding discriminationwhen intersectionality
occurs. These intersectionalissues could involve race, sex and others. This is problematic in
litigation because different laws may apply, and there is not sufficient legal cognizance for
recognizing multiple bases. Recognizing intersectionality at the EEOC is relatively new. In
June 2019, the EEOC formally filed a brief with the court. With this filing, the EEOC has
signaled its commitment to ensuring that older women workers were protected under both
Title VII of the 1964 Civil RightsAct and the Age Discrimination in Employment Act.
Labor force complexities
At one extreme is the increasing age of the workforce. There are two perspectives regarding
the aging of the workforce. One perspective is that older workers are being pushed out of the
force, even pre-pandemic (Kelly, 2021). Indeed, there is evidence that workers are rethinking
retirement (Loretto et al., 2013). On the other hand, employers are continuing to employ
workers beyond the typical retirement age of 65 (Lain and Loretto, 2016). This might, in part,
be attributable to labor shortages in many sectors, including manufacturing (Aeppel, 2021;
Davidson, 2021).
Increasingly, there is the agreement that age discrimination is bound up with factors
relating to gender, race and disability (Booysen, 2018;Zanoni and Janssens, 2018). Wood et al.
(2008) concluded that even though age discrimination is prevalent, its causes and resolution
are contentious. Bengtsson (2020) found that there is significant stereotyping concerning age
discrimination. This subtlety makes it challenging to remedy. Also, the data and
methodologies are insufficient in that they are based on government data or surveys of
individuals in one organization (Posthuma et al., 2012). There seems to be a dearth of research
on issues relating to labor force participation of aging workers. Nelson (2011) notes that “The
field is growing, as more and more researchers are sensing the theoretical and practical need
for empirical attention devoted to a problem that affects millions of older adults.”
Organizational complexities
Aging employees can create challenges and opportunities for organizations (Malos, 2015;
Wainwright et al., 2019). Also of significant concern is the impact that older workers have on
performance (Bryson et al., 2020). There is some evidence that employee well-being can
mitigate the impact on performance (Khoreva and Wechtler, 2018). Older workers may be
Unions and
intersectional
age
discrimination
329
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