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Texas Supreme Court clarifies: It’s not age bias if new worker is older than the original

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in Discrimination and Harassment,Firing,Human Resources

The Texas Supreme Court has just made it much easier for employers to avoid age discrimination claims. In what the court calls a “true replacement case” under the Texas Commission on Human Rights Act (TCHRA), an older worker must show that she was replaced by a younger worker.

If the replacement was older than the original job-holder, her case will be dismissed early in the legal process, unless the suing employee can show direct evidence of age discrimination, such as a manager’s statement that she was fired because she was old.

Recent case: Gloria worked for the Mission Consolidated Inde­­pen­dent School District for 27 years. She was fired in 2003 and sued. Her allegations: That she was fired because she participated in protected activities and because she is a woman of Mexican-American descent who was 48 years old when she lost her job.

The school district asked the court to toss out Gloria’s lawsuit since it had hired another woman of Mexican-American descent who happened to be three years older than Gloria. The trial court refused and the case worked its way up to the Texas Supreme Court.

The Texas Supreme Court concluded that the school district was entitled to have the case dismissed. The school district showed that it replaced Gloria with another employee with the same demographic traits and who was actually older than Gloria.

That meant Gloria could not meet her initial burden of showing that age discrimination might be a factor. Only if an employee can show that a younger worker replaced her does the employer even have to try to show it had a legitimate non-age-related reason for its decision.

As a practical matter, this means that Texas employees suing for age discrimination under the TCHRA must either show, up front, that a younger employee replaced them or that there was direct evidence of age discrimination.

How might an employee show direct evidence of age discrimination if she was replaced by an older worker? Perhaps with a supervisor’s statement he was firing her because of her age and proof that after doing so, managers were able to find a replacement older worker as a subterfuge to cover up the supervisor’s age discrimination.

Short of that, this case is a big win for Texas employers. (Mission Consolidated Independent School District v. Garcia, No. 10-0802, Supreme Court of Texas, 2012)

Caution: This case applies only to cases in which the employer hires a replacement worker. If Gloria had not been replaced, her case would likely have gone to trial or at least through the expensive and time-consuming discovery phase.

If she had not been replaced, she would simply have had to show she was over age 40 when terminated. Then the burden would have shifted to the district, which would have had to show it fired her for a non-age-related reason. After doing so, the burden would have shifted back to Gloria, requiring her to show that age was the motivating factor behind the decision.

Final note: Always consult your attorney before replacing an older-than-40 employee.

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