The West Virginia Supreme Court of Appeals recently reversed itself and adopted the “substantially younger” rule in cases of age discrimination under the West Virginia Human Rights Act (“WVHRA”).  Previously, in order to prove age discrimination, an employee in the protected class—40 years old or older—had to show that he or she was replaced by or treated differently than a similarly-situated employee outside of the protected class—under 40 years old.  This was the “over 40/under 40” rule.  Now, an employee may prove age discrimination by showing evidence of a comparator employee who is substantially younger than the plaintiff, even if that comparator employee is also over 40 years old.

The Court’s decision in Knotts v. Grafton City Hospital, issued on April 14, 2016, reversed precedent that applied the “over 40/under 40” rule only six years ago.  The plaintiff in Knotts was a 65-year-old housekeeper at a hospital who was fired for multiple violations of the hospital’s patient confidentiality policy.  She filed a lawsuit, alleging she was discharged because of her age in violation of the WVHRA.  To support her claim, she offered evidence of two other employees—both of whom were also over 40—who allegedly also violated the confidentiality policy but were not fired.  In addition, after Ms. Knotts was fired, the hospital hired two new housekeepers, one of whom was 12 years younger than Ms. Knotts; the other was 24 years younger.  Both of the new housekeepers, however, were over 40 years old and, therefore, members of the same protected class as Ms. Knotts.

The hospital moved for summary judgment, arguing that Ms. Knotts could not establish that she was discriminated against because she could not show that the hospital treated her differently than anyone outside of her protected class.  The circuit court agreed and granted the summary judgment motion.  Properly applying the existing law, it gave no weight to her comparator evidence of employees who were younger than her but who were still over 40 years old.  Ms. Knotts appealed, and the employer initially won at the Supreme Court.

Ms. Knotts, however, petitioned for a rehearing, arguing that West Virginia should discard the “over 40/under 40” rule in favor of the “substantially younger” rule announced by the Supreme Court of the United States in cases involving the federal Age Discrimination in Employment Act (“ADEA”).  The West Virginia Supreme Court agreed to rehear her case to address this issue.

The Court decided to follow the “substantially younger rule” in deciding age discrimination cases.  First, observed the Court, this is the rule used in ADEA cases, and the WVHRA’s protection against age discrimination is the same as that provided by the ADEA.  Therefore, federal and state claims should be guided by the same analytical framework.  Second, according to the Court, applying the “over 40/under 40” rule could lead to an absurd result, where a 41-year-old employee could show age discrimination by comparing himself with a 39-year-old employee but a 65-year-old employee replaced by a 40-year-old employee could not.  Third, most other jurisdictions have adopted the “substantially younger” rule.  Finally, the Court felt that the “substantially younger” rule provides the best means of preventing employment discrimination based on age.

Now, in an age discrimination claim under the WVHRA, an employee can show age discrimination by presenting evidence that he or she was replaced by a substantially younger employee.  Alternatively, the over-40 employee can show age discrimination by presenting evidence that a substantially younger employee, who engaged in the same or similar conduct for which the plaintiff received an adverse employment action, received more favorable treatment.

Of course, the Supreme Court of Appeal’s decision begs the question:  How much younger is “substantially” younger?  The Court declined to answer this question.  It held that the term defies an absolute definition.  It is best determined after considering the particular circumstances of each case.  The Court did note, however, that age differences of ten or more years have generally been held to be sufficiently substantial to satisfy the rule.


Mark Jeffries focuses his practice in the area of labor and employment law. He has represented employers in wrongful discharge and discrimination cases in state and federal court, as well as before the West Virginia Human Rights Commission and the U.S. Equal Opportunity Commission.
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