If you’re considering any reductions in force or making changes to your employee performance evaluation protocols, it’s important to analyze the effect any such changes may have on your older employees. Any changes in employment that have a “disparate impact” on employees 40 years or older put you at risk for violating the Age Discrimination in Employment Act of 1967 (ADEA). West Virginia (WV)-based employers with questions about the application of the Age Discrimination in Employment Act in WV have a valuable resource available to them: the employer defense attorneys at Hendrickson & Long, PLLC.

The Basics of the Age Discrimination in Employment Act in WV

The Age Discrimination in Employment Act (also known as the “ADEA”) is a federal law that places workers aged 40 and older among the protected classes in the federal statutory framework that prohibits discrimination in employment-related decisions. It is part of a series of federal laws that prohibit employers from making employment decisions based on the following criteria:

• Age (40 or older)
• Disability
• Genetic information
• Race, citizenship status, color, or national origin
• Religion
• Sex (including pregnancy, childbirth, and related medical conditions)

In addition to the Age Discrimination in Employment Act, WV law prohibits discrimination in employment decisions based on any of the following: age (40 and older), race, color, national origin, religion, sex, physical or mental disability, blindness, AIDS/HIV status, and a person’s off-duty tobacco usage.

You Could Be Found Liable under the Age Discrimination in Employment Act in WV

The ADEA regulations state that even if your company practice is age-neutral on its face, if it has the indirect effect of harming older workers to a greater degree than younger workers, then your practice violates the Age Discrimination in Employment Act. In employment litigation, this is known as “disparate impact,” as opposed to “disparate treatment,” which refers to the intentional discrimination against a protected class of workers. The only thing a plaintiff has to do in this instance is show a statistical disparity in the effects of your practice to win, unless you have a valid legal defense of the practice.

What Defenses Exist for WV Employers in Age Discrimination in Employment Act Lawsuits?

A common and useful defense against age discrimination claims is the “Reasonable Factors Other than Age” defense. Simply put, this means that your employment practice was based on reasonable factors other than age. Meacham v. Knolls Atomic Power Laboratory. This is an affirmative defense, meaning that the burden of proof is on the employer.

Federal regulations define “a reasonable factor other than age” as “a non-age factor that is objectively reasonable when viewed from the position of a prudent employer mindful of its responsibilities under the ADEA under like circumstances.”

To show that your factors are “objectively” reasonable, an employer must show that the “practice was both reasonably designed to further or achieve a legitimate business purpose and administered in a way that reasonably achieves that purpose in light of the particular facts and circumstances that were known, or should have been known, to the employer.”

According to the same regulation, when trying to determine whether your reason is objectively reasonable, you should consider the following:

• The extent to which the factor is related to your stated business purpose
• The extent to which you have defined the factor accurately and applied it fairly
• The extent to which managers and supervisors were given guidance or training about how to apply the factor so that they avoided discrimination
• The extent to which you limited supervisory discretion in areas subject to negative age-based stereotypes
• The extent to which you analyzed beforehand the potential adverse impact your employment practice would have on older workers
• The degree of harm to older workers and the steps you took to mitigate harm

Does the Age Discrimination in Employment Act Apply to “Younger Workers” in WV?

For some time, the law in WV was that for age discrimination to have occurred, the “younger” employee had to be under 40 years old. See Young v. Bellofram Corporation. However, in 2016, the WV Supreme Court ruled that a plaintiff could sometimes establish a prima facie case of age discrimination even if the employee who was treated more favorably was also 40 or older.

What Should You Do as an Employer?

If you are a WV employer facing an Age Discrimination in Employment Act matter in WV, you have a number of options available to you. First, knowledge of the law is essential, so a visit to the Equal Employment Opportunity Commission (EEOC) or West Virginia Human Rights Commission websites may help. And when you need a lawyer with experience in the Age Discrimination in Employment Act in WV, contact Hendrickson & Long. Our attorneys have vast experience defending federal and state age discrimination lawsuits in WV, Kentucky (KY), and Pennsylvania (PA), and we are here to help you. Contact us today: 304-346-5500.