4.4 Age Discrimination in Employment Act (adea)

LibraryThe Virginia Lawyer: A Deskbook for Practitioners (Virginia CLE) (2018 Ed.)

4.4 AGE DISCRIMINATION IN EMPLOYMENT ACT (ADEA)

The Age Discrimination in Employment Act (ADEA) 41 protects employees who are 40 years of age or older from discrimination on the basis of age in hiring, firing, or other conditions or terms of employment. The ADEA covers employers who have 20 or more employees.

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Coverage under 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. . . . 42

Title VII disparate impact analysis is applicable in the ADEA context. 43

An employee alleging age discrimination under the ADEA must show that "but for" the employer's motive to discriminate, the adverse employment action would not have occurred. In other words, a mixed-motive instruction is not possible in ADEA cases. 44 While an ADEA case may be proven with evidence, because discriminatory intent is difficult to prove, an ADEA plaintiff may also establish a prima facie case by showing:

1. He or she is age 40 or older;
2. He or she was qualified for the job and/or his or her performance was satisfactory;
3. In spite of the qualifications, he or she was discharged or adverse action was taken; and
4. He or she was replaced by a younger individual with comparable qualifications, or in a nondischarge case, a

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younger individual under similar circumstances was treated more favorably. 45 Birkbeck v. Marvel Lighting Corp., 30 F.3d 507 (4th Cir. 1994); see also Reed v. Buckeye Fire Equip., 241 Fed. Appx. 917 (4th Cir. 2007). The ADEA does not prohibit discrimination against younger persons and in favor of older persons. General
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