The ‘Substantially Younger’ Test for Age Discrimination

By Mark Kobata

Jul. 14, 2016

Martha Knotts worked for the Grafton City Hospital until she was terminated at age 65. The hospital hired replacements who were 12 and 24 years younger than Knotts, but were over 40 years old.

Knotts filed a lawsuit in state court under the West Virginia Human Rights Act alleging age discrimination. The state circuit court held that Knotts could not establish a prima facie case of discrimination because her replacements were both over 40 and part of the protected class.

The West Virginia Supreme Court overturned its own “over 40/under 40” precedent, and reversed the circuit court’s decision. Instead, the state Supreme Court adopted the U.S. Supreme Court’s ruling in O’Connor v. Consolidated Coin Caterers Corp., holding that a prima facie age discrimination case’s focus should be on whether the discrimination occurred, rather than on whether a replacement’s age falls outside the protections for those 40 and older. A determination of whether a replacement is “substantially younger” than a terminated employee is a more “reliable indicator” of age discrimination than whether the replacement is not a member of the protected class. Knotts v. Grafton City Hospital, Case N. 14-0752, Supreme Court of Appeals of West Virginia (April 14, 2016).

IMPACT: Given today’s trend of “older” workers remaining in the workforce, it is not unusual for individuals 40 or older being hired and/or replacing older employees. Significant age disparity can be evidence of age discrimination even if the comparative employee is over 40, if that employee is substantially younger than the employee allegedly being discriminated against.

Mark T. Kobata and Marty Denis are partners at the law firm Barlow, Kobata and Denis, which has offices in Beverly Hills, California, and Chicago. Comment below, or email

Mark Kobata and Marty Denis are partners at the law firm Barlow, Kobata and Denis, which has offices in Beverly Hills, California, and Chicago.


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