4.4 Age Discrimination in Employment Act (adea)

• Library: The Virginia Lawyer: A Deskbook for Practitioners (Virginia CLE) (2022 Ed.)

4.4 AGE DISCRIMINATION IN EMPLOYMENT ACT (ADEA)

The Age Discrimination in Employment Act (ADEA) ¹⁹⁹⁸ 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.

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. . . . ¹⁹⁹⁹

Title VII disparate impact analysis is applicable in the ADEA context. ²⁰⁰⁰

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. ²⁰⁰¹ While an ADEA case may be proven with direct 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 non-discharge case, a younger individual under similar circumstances was treated more favorably. ²⁰⁰²

A discharged employee age 40 or older who is replaced by a younger worker who is also age 40 or older may state a prima facie case of age discrimination under the ADEA. ²⁰⁰³ Whether the replacement employee is age 40 or over or not, the ultimate question is whether the...