In a recent case, the Ft. Worth Court of Appeals addressed the question, does the Texas age discrimination statute require that the plaintiff be over 40 years old during the discrimination? The court said no. In Bell Helicopter Textron, Inc. v. Burnett, 552 S.W.3d 901 (2018), the employee was harassed due to his age. The harassment started while he was still 39 years old. The harassment continued after he turned 40. There was also evidence that a younger employee suffered similar problems at work, but received no discipline. That same younger co-worker attended training which the plaintiff had already requested.

The court found that the Texas Commission on Human Rights Act addresses discrimination “because of age,” not necessarily because the worker is over 40 years old. Mr. Burnett was at least 40 years old when the ultimate act of discrimination occurred, the termination.

The court of appeals also affirmed the lower court’s granting of lost pay in the future. The district court found that reinstatement was not feasible, due to his psychological injuries and because he made a career change after being fired. The appellate court affirmed the district court allowing $565,000 in lost future pay. The district court may have based this amount on his pay at Bell Helicopter during his last few years of employment. See the decision here.

Under Title VII, a plaintiff can seek reinstatement if s/he wins the lawsuit.  But, many plaintiffs do not want to return to their old job.  No matter how much they may have loved their job, they fear returning to a discriminatory environment.  With proper protections, the plaintiff’s attitude might change about returning.  Many – actually most employers – would prefer the employtee not return.  Even if the employer can get over the hurt of a lawsuit, they fear a rash of additional alwsuits.  

Title VII of the Civil Rights Act anticipates this problem.  Title VII provides that an employee is entitled to reinstatement.  But, if returning to the job is not feasible, then the court (i.e., the Judge) can award future pay.  Future pay (or front pay) is very rare, but it does happen.

But, what happens when the plaintiff is asked whether she wants to return in her deposition and she answers in an ambiguous way?  Mike Maslanka discusses such a case.  In Dube v. Texas Health and Human Services Commission, the plaintiff said she did not want to return "at this time."  The Western District of Texas found that the employee did not truly want to return and, therefore, reinstatement could be excluded from her lawsuit.  Ms. Dube had moved out of state and was equivocal about returning to Texas for a job, especially one where she felt threatened in some way.  

Later, she tried to say in an affidavit that she would indeed like to be reinstated to her old job.  But, as often happens, the Judge gave more weight to her deposition testimony than to a subsequent affidavit.  So, yes, as Mike notes, if reinstatement is foregone, then so is any chance at future pay.  See Mike’s post here.  So, in this situation, be careful what you don’t want, because you just might not get it….