Texas Decision Has Wide-Reaching Implications
July 5, 2012 8:30 am
In a case that could have implications beyond just for people seeking redress for age discrimination in employment-related cases, last week the Texas Supreme Court essentially threw out the applicability of the existing age discrimination law (under the Texas Commission on Human Rights Act, or TCHRA) in all cases where a replacement hire is older than the person being fired.
Michael P. Maslanka wrote about Mission Consolidated Independent School District v. Garcia for his blog Texas Lawyer, “A Blog on Employment and Labor Law”:
Gloria Garcia, a 27-year employee of the Mission Consolidated Independent School District, was fired when she was 48 years old. Her replacement was 51. The district essentially argued “where’s the discrimination?” and asked the trial court and the intermediate appeals court to toss the age claim. Those courts said no. Why? Because they formulated a prima facie case as one where the plaintiff alleged she was replaced by someone younger or where she could “otherwise show that she was discharged because of age.”
The high court read out the “otherwise show” language and resorted to a purely mechanical approach, holding that the only question was whether the replacement was older than the plaintiff. If so, game over, plaintiff loses.
As Maslanka points out, there are examples of possible cases of age discrimination that fall outside the scope of this decision — for example, when an older worker is hired specifically to avoid an age-discrimination claim, or in cases where a worker might “act” older or younger than they are.
But the problems with the June 29th decision go further than that: the TCHRA states that “an employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin, or age the employer discharges an individual or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment.” The decision therefore has implications for all kinds of discrimination claims — and could set a dangerous precedent.
Richard Bales at the Workplace Prof Blog, “A Member of the Law Professor Blogs Network,” has this to say about it:
This in my mind raises four distinct problems. First, it misstates the law (at least, federal law under Title VII). Second, it’s logically incorrect — a later decision to hire someone older may say little or nothing about the earlier motive to fire, especially if more than one person is involved in one or both of the employment decisions. Third, it invites employers to use later hiring decisions to “cover up” discriminatory firing decisions. Finally, as Mike points out, the Texas rule logically should apply equally to race and sex cases — no sex claim if the replacement is a woman! — and to the best of my knowledge no court has gone there.
The latter two points indicate a particularly pernicious potential impact of this ruling: it could encourage an employer to cover up one act of discrimination (the firing) with a second act of discrimination (intentionally hiring a person of a particular race/sex/age/etc.) in an attempt to nuke the fired employee’s discrimination claim.
Well said, and we’ll be watching to see what comes out of it.
Image from here