The West Virginia Human Rights Act is meant to protect workers against discrimination based on their status in a defined class. One of those classes relates to age. There is also federal law -- the Age Discrimination in Employment Act -- that protects workers from age discrimination.
The West Virginia Supreme Court recently heard a case involving a 60-year-old woman who claims she was discriminated against when her employer disciplined her more severely than her 40-year-old co-worker. The decision did not go the older worker's way.
Despite U.S. Supreme Court precedent prohibiting favoritism toward "substantially younger" co-workers, the West Virginia Supreme Court dismissed the case in favor of the employer. Let us consider the high court's reasoning, which is still up for debate.
The law in West Virginia explicitly protects workers who are older than age 40.
According to the high court, because the younger worker was also over age 40, he falls into the same "protected class" as the plaintiff. The company argued that, even in the event that the younger worker was treated preferentially, the preferential treatment was received by a member of the same protected class as the plaintiff, so the plaintiff's claim of age discrimination should be dismissed.
In similar cases, the question of whether or not a co-worker is "substantially younger" comes up. This "substantially younger" test has been adopted in other states.
In an article on the case, AARP, which advocates for people age 50 and older, said the court's decision effectively undermines protections against age discrimination in the workplace.
If you would like to learn more about issues related to workplace discrimination, then our Charleston employment law page is a good place to start.
Source: AARP, "West Virginia Court Fails to Uphold Age Discrimination Protections," Dan Kohrman, Sept. 4, 2013