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West Virginia Court Fails to Uphold Age Discrimination Protections

AARP’s brief urged West Virginia’s highest court to allow an age discrimination claim that alleges an employer favored a worker 20 years younger than the plaintiff. The employer argued that because the younger worker was himself over the triggering age of the state’s age discrimination law, there is no violation of law. The court agreed with the employer.


Lynda Young was employed by Bellofram Corporation and was 60 years old when she and a much younger coworker were disciplined over alleged violations of management directives. Claiming that she was disciplined more severely, she sued alleging the actions violated West Virginia age discrimination law that protects workers over age 40.

Bellofram said that even if Young was a victim of age bias, that bias was not illegal because the younger worker was himself over 40 and therefore also was part of the “protected class.” Thus, the company said, even if it treated its younger worker preferentially, it did not treat Young worse than a nonprotected younger worker.

A trial court agreed and dismissed the case for failure to state a claim. Young appealed.

The federal Age Discrimination in Employment Act (ADEA) and U.S. Supreme Court precedent, as well as most state law versions of the ADEA, prohibit favoring “substantially younger” coworkers, regardless of the age of the younger worker. Young argues that accordingly, simply dismissing her lawsuit because of her coworker’s “protected” age renders age discrimination protections meaningless for her and others in her situation.

AARP’s friend-of-the-court brief filed by attorneys with AARP Foundation Litigation points out that the lower court’s analysis flatly contradicts U.S. Supreme Court precedent, which West Virginia courts generally follow. In this regard, AARP notes, age bias laws differ from protections against race and sex bias in the workplace, which require complainants to show unlawful preference for “other-race” or “other-sex” coworkers. AARP’s brief also points out that court decisions in other states with laws similar to the West Virginia Human Rights Act have adopted the “substantially younger” test.

Finally, AARP’s brief observes that the “substantially younger” test is required by plain logic. Commenting on the aptly named Young litigation and Supreme Court precedent, the brief argued “In both cases, the issue is whether the individual alleging age discrimination is substantially older than the younger employee who they contend (a) replaced them or (b) was treated more favorably in a disciplinary context. In both cases, the crux of the matter is whether the facts support an inference that the employer discriminated against the older individual because of his age.”

The West Virginia Supreme Court did not agree. It ruled that because the other worker was a member of the protected class (because he was over age 40), Young’s claim of being discriminated against on the basis of age failed.

What’s at Stake

Discrimination on the basis of age harms older workers and feeds into ageist stereotypes whether the better-treated employee is 20 or 40. Dismissing a case outright merely because the age of the preferred worker is 40 or over undermines fundamental age discrimination protections.

Case Status

Young v. Bellofram was decided by the Supreme Court of Appeals of West Virginia, the state’s highest court.