When you replace 46-year-old Freda with 49 year-old Freddie, it
only seems logical that you shouldn't have to worry about an
age discrimination claim. After all, how can anyone reasonably
believe that age bias motivated you to terminate Freda when you
replaced her with someone who is older?
But, anyone who has ever wrangled in the employment law arena
knows that logic, reason and plain old common sense rarely stop a
former employee from filing a suit, or force a court to dismiss a
case. Oftentimes, the only persons asking the common sense
questions are the persons sitting in the jury box. While that may
seem somewhat comforting, let's face it, no employer ever wants
to be talking to twelve people in a jury box. The time, expense and
anxiety of an employment discrimination trial are just too great,
regardless of the outcome.
Well, as we speak, the Texas Supreme Court is considering an issue
that might allow Texas employers to sleep a little better at night
if they find themselves being sued by Freda for replacing her with
three-years-older Freddie. In Mission C.I.S.D. v. Garcia, the
petitioner school district employer is arguing that:
When an employee is terminated and replaced by an older person,
the terminated employee cannot establish a prima facie case of
discrimination under the [Texas anti-age discrimination law].
In other words, Mission CISD wants the Court to affirm that a
plaintiff-employee who is replaced by someone older than she is
cannot establish a state law age discrimination claim as a matter
of law.
"As a matter of law" are golden words for defendant
employers, since they mean that the court will dismiss the case
through summary judgment and the plaintiff-employee cannot proceed
to a jury trial. Even better, plaintiff lawyers may refuse to take
on an age discrimination lawsuit knowing that it is essentially
doomed from the start.
Does Mission CISD's argument have any chance of succeeding?
Some may be surprised to learn that case law supporting both sides
of the argument even exists. But, as employment law arena veterans
know, courts, including the arguably more-conservative-than-most
Texas Supreme Court, tend to avoid creating those bright-line
standards whenever they can. So, don't be surprised if the
Court declines to slam the gate on age discrimination plaintiffs
dealing with older replacements and, instead, deems such evidence
to be something for a jury to consider. Small consolation for
employers who know that the effort and expense of taking an age
discrimination case to trial often adds up to far more than one
would expect for subtracting 46 and adding 49.
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