3.2 Coverage and Basic Elements

LibraryEmployment Law in Virginia (Virginia CLE) (2020 Ed.)

3.2 COVERAGE AND BASIC ELEMENTS

3.201 Coverage. The ADEA extends to any

person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year. . . . The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State, and any interstate agency, but such term does not include the United States, or a corporation wholly owned by the Government of the United States. 8

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This coverage includes employment agencies and labor unions.

3.202 Basic Elements of Age Discrimination Cases.

A. In General. Under the ADEA, it is "unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 9 For a plaintiff to be successful in an ADEA action, an employment relationship must exist between the parties, 10 and the complainant must show that he or she was 40 years of age or older, that he or she suffered an unfavorable employment action from an employer covered by the Act, and "that but for the employer's motive to discriminate against the plaintiff on the basis of age," the employer would not have taken the unfavorable action. 11

B. Plaintiffs Protected. The ADEA protects workers who are 40 years of age or older. 12 The Supreme Court has held that the ADEA does not prohibit discrimination against younger employees who are covered by the Act in favor of older covered employees. 13

C. Adverse Employment Action. The plaintiff must show that an adverse employment action, such as termination or denial of an employment opportunity, was taken against him or her. 14

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D. Qualified and Performing Adequately. The plaintiff must show that he or she was qualified for the job and met the employer's legitimate expectations. 15

E. Replaced by Someone Outside the Protected Class or Significantly Younger. The plaintiff must show that he or she was replaced by someone outside the protected class or significantly younger with comparable qualifications 16 or that the discharge occurred under circumstances that raise a reasonable inference of unlawful age discrimination. 17 But the "mere fact of replacement by a younger employee is not dispositive...

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