Elder Employment Discrimination: Your Rights in the West Virginia Workforce

By Gracie Davis – Deputy Executive Assistant at West Virginia Senior Legal Aid, Inc.

The Age Discrimination in Employment Act (ADEA) is a federal law that prohibits employment discrimination against individuals 40 years of age or older. This includes refusing to hire someone, firing them, giving them lower pay, denying promotions, changing schedules or positions, or treating them unfairly in other ways because of their age. The ADEA applies to employers with 20 or more employees for each working day in 20 or more calendar weeks in the current or preceding year. In contrast, the West Virginia Human Rights Act (WVHRA) applies to employers with 12 or more employees in the state for 20 or more calendar weeks, thus providing more coverage than the ADEA. These laws apply to public and private employers, including government agencies, unless the employer is the State of West Virginia itself. The ADEA does not allow private lawsuits for money damages against the state due to Eleventh Amendment immunity, but the federal government can still enforce the law.

Under the ADEA, the plaintiff must prove that age was the “but-for” cause of the adverse employment action. This means that the employee’s age must have actually motivated the employer’s decision and must have had a determinative influence on the outcome.

A plaintiff may use either direct or indirect evidence. Direct evidence involves clear, explicit statements or actions that reveal discriminatory intent. An example would be an employer saying, “We are letting you go because we need younger and more energetic workers who can keep up with the latest trends.”

More often, however, a plaintiff must rely on indirect evidence to prove discrimination. Courts often use what is known as the “McDonnell-Douglas test” to determine the outcome of employment discrimination cases. First, the employee must show a “prima facie” or basic case. Typically, this would include the employee proving they are at least 40 years of age, they suffered an adverse employment action, and the circumstances that suggest age was at play. Second, the employer has the opportunity to rebut by giving a legitimate and nondiscriminatory reason for the action. Third, the employee must prove the employer’s rebuttal was pretextual and an excuse to hide age bias. For example, a 62-year-old employee with a long history of positive performance reviews is laid off during a company restructuring. The employer claims the decision was based on budget cuts. However, several younger employees with similar or higher salaries and less experience were employed, and the employee’s duties were reassigned to a 35-year-old worker with fewer qualifications. There are no explicit comments about age, but the circumstances suggest that age may have been a motivating factor.

Even when there is no clear intent to discriminate, older workers may still be harmed by workplace rules and practices that affect them more than their younger counterparts. This is known as “disparate impact.” To bring this kind of claim under the ADEA, the employee must point to a specific company policy or practice and show statistical proof that it affects older employees more adversely. But even then, the employer may still prevail if it shows that the policy or practice was based on a “reasonable factor other than age” (RFOA). An example of an RFOA is an employer having strict performance quotas that are difficult for older workers to meet. As long as those quotas are fair, tied to real business necessities, and not based on age stereotypes, courts are likely to uphold them.

DO NOT hold those horses because employees need to act quickly if they believe they have been discriminated against. Since West Virginia is a “deferral state,” employees have 300 days to file a charge with the Equal Employment Opportunity Commission (EEOC). Under West Virginia law, a complaint must typically be filed with the West Virginia Human Rights Commission (WVHRC) within 365 days. Filing with either the EEOC or the WVHRC is enough, which is thanks to a work-sharing agreement between the agencies, but it is best to act early to ensure deadlines are not missed. Courts have made it abundantly clear how important these deadlines are, so make sure you speak with an attorney as soon as you suspect malfeasance. The clock starts ticking when an employee knows or should know about the employer’s decision rather than when the employee discovers potential discrimination.

In sum, if you are 40 years of age or older and you have been treated unfairly at work because of your age, you have rights. Do not wait too long to get help because deadlines come up fast, and both state and federal laws can protect you, especially in West Virginia. For further aid, please contact a licensed attorney. West Virginia Senior Legal Aid is dedicated to defending West Virginia seniors’ rights.