Bell Helicopter Textron v. Barnett: Can someone allege age discrimination based on facts that occurred before he turned 40?

In Bell Helicopter Textron v. Barnett, NO. 02-16-00489-CV (Tex. App. June 14, 2018), a Texas state appeals court affirmed the trial court's judgment for Brian Burnett on his claim that he was fired because of his age, in violation of Texas state law. What's interesting about this case is that the state law only protects workers against age discrimination if they are 40 or older, similar to the corresponding federal statute, but the evidence that Burnett relied on to show that the defendant discriminated against him based on age related to incidents that occurred before he turned 40. In ruling for Burnett, the court concluded that "an employee must show that the employer discriminated 'because of . . . age' and that the employee was at least forty when the ultimate act of discrimination -- the termination -- occurred." In contrast, the dissent concluded that Burnett failed to show that he was treated differently not merely because of his age but because he was at least 40 years old.

Here, I think the majority has the better argument. If someone discriminates against someone based on age, it's almost always going to be based on the general perception that the person is too old, not because the person is too old because he is 40 or older, and wouldn't be too old if he were merely 39. The protected class defines who can recover when treated adversely based on the perception that he is too old and does not require age-motivated bias specifically targeting workers 40 or older.

The dissent also noted that Burnett's supervisor had already decided to fire Burnett before he turned 40. If the supervisor's decision had been enough and didn't need to be approved, then Burnett was arguably fired before he was 40, even if he was notified later. However, it appears that the supervisor needed to consult with HR, so Burnett was not actually fired until a few weeks later after he'd already turned 40.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.