Tuesday, July 3, 2012
Mike Maslanka over at Work Matters posts on Mission Consolidated Independent School District v. Garcia, a Texas Supreme Court opinion from last week. A 48-year-old employee was fired and replaced by a 51-year-old. The fired employee brought an age claim. The employer moved to dismiss; both the trial and appellate courts ref used. The Texas Supreme Court, however, reversed, holding that as a matter of law there is no age age discrimination if a fired employee is replaced by someone older.
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.