Proving Age Discrimination in Virginia

The American workforce is growing older. According to the Pew Research Center, the older workforce (aged 65 and above) has quadrupled in size since the mid-1980s. And while older adults tend to be healthier and have fewer disabilities than in the past, they still face a unique set of challenges in the workplace, including potential age discrimination. But as with most types of employment discrimination claims, age discrimination can be difficult to prove, especially on your own. If you’re considering pursuing an age discrimination claim, a Richmond age discrimination attorney can assist you.

Legal Frameworks for Age Discrimination Claims

Age discrimination is unlawful under both federal and Virginia law. At the federal level, the primary statute targeting age discrimination is the Age Discrimination in Employment Act (ADEA). Passed in 1967, it protects employees aged 40 years and older and applies to employers with 20 or more employees. Generally, it prohibits discrimination in hiring, firing, promotion, compensation, and other terms of employment, as well as taking adverse action against individuals for opposing such discrimination or participating in investigations thereof. The Virginia Human Rights Act contains similar operative language as the ADEA, and while it also applies to individuals aged 40 years and older, it applies to employers with 15 or more employees. There are pros and cons of pursuing discrimination claims under either law, which a Richmond age discrimination attorney can discuss with you.

Establishing an Age Discrimination Claim

The most common way to establish an age discrimination claim is by using the McDonnell Douglas framework, a Supreme Court test typically applied in cases in which only circumstantial, rather than direct, evidence of discrimination is available. To establish a prima facie (i.e., “on first impression”) claim for age discrimination under the ADEA using the McDonnell Douglas factors, a plaintiff must show that:

They are aged 40 years or older
They are qualified for the position
They suffered an adverse employment action
The position was filled by someone younger than the plaintiff

Readers should note that, unlike in Title VII discrimination cases (e.g., those based on race discrimination), plaintiffs in ADEA actions must show that their age was the “but for” cause of the adverse action. In other words, age must be more than a motivating factor or merely one factor among several — it must be the determinative factor. As such, this requirement generally creates a higher burden of proof for age discrimination plaintiffs.

Once the plaintiff establishes a prima facie case, the burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse action. The plaintiff may then attempt to rebut the defendant’s proffered explanation, such as by showing that it is merely a pretext. Again, this can be a difficult hurdle to clear for plaintiffs, which is why you should consider speaking to a Richmond age discrimination attorney if you’re considering pursuing a claim.

Types of Evidence That Can Support Age Discrimination

Plaintiffs in age discrimination cases can present a wide range of evidence to support their claims, including:

Direct Evidence

Direct evidence is exactly what it sounds like — explicit ageist remarks tied to employment decisions. “We want someone younger for this role” would be a good example of direct evidence. Of course, this type of evidence is exceedingly rare in all kinds of employment discrimination cases, so most plaintiffs must settle for other types of evidence.

Comparative Evidence

Comparative evidence contrasts the treatment of older employees with that of younger employees. For example, an age discrimination plaintiff could present evidence that older workers were laid off during a downsizing, while younger workers with less experience were retained. Or, perhaps, that an older employee was passed over for promotion in favor of a much younger candidate with similar or lesser qualifications. In claims based on comparative evidence, courts typically require the younger employee(s) to be “substantially younger” than the plaintiff.

Statistical Evidence

Statistical patterns can help demonstrate that an employer’s policies and practices disproportionately affect older workers. For example, a plaintiff could present evidence that applicants over the age of 40 are rarely hired or promoted, even if the pool of said applicants is large. However, obtaining such evidence can be a challenge for many plaintiffs, as employers may raise privacy concerns about the disclosure of such data.

Age-Related Comments

While direct evidence of ageism — such as explicitly stating that the employer wants a younger person for a role — is rare, other less direct age-related comments are more common. For example, management may make offhand comments about needing “new blood” or a “jolt of energy” or suggest that a particular employee should consider retiring. While such evidence can be a powerful indicator of bias, it can be challenging for plaintiffs to directly tie it to specific employment decisions, as stray remarks are generally insufficient to prove age discrimination.

Inconsistencies in the Employer’s Story

Remember that under the McDonnell Douglas burden-shifting framework, once an employee makes a prima facie case of age discrimination, the burden then shifts to the defendant to present a legitimate, nondiscriminatory reason for the adverse action. Courts and juries scrutinize these explanations closely. A plaintiff could attempt to show inconsistencies, for example, by presenting evidence that the employer’s claim that the adverse action was due to performance issues does not match the employee’s performance record.

Witness Statements

While usually not dispositive, witness statements can help bolster a plaintiff’s other evidence. For example, a plaintiff in an age discrimination action could present statements from coworkers attesting that older employees were routinely shut out of training opportunities, social events, and desirable work assignments.

Discuss Your Case With a Richmond Age Discrimination Attorney

Age discrimination claims can be difficult to prove, but it’s not impossible. Your best bet for prevailing is to work with an attorney who has experience handling these types of claims from both sides of the issue. To discuss your case, please contact a Richmond age discrimination attorney at Pierce / Jewett by calling 804-502-2320 or using our online contact form.