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Can Post-Tenure Review Masquerade as Age Discrimination?

Can Post-Tenure Review Masquerade as Age Discrimination?

by Gaines West, Attorney-at-Law West, Webb, Allbritton & Gentry

This time of year always finds Deans and Department Heads cobbling together their budgeted needs. From on high usually comes a directive to put together several budget scenarios at various percentage deficit reductions in money and staff. With the advent a few years back of more aggressive Post Tenure Review policies, it isn’t hard to find a Dean or Department Head who would ideally like to see Professor {old} Stick in the Mud – finally decide to retire – and with her retirement, free up a high salary that could be used to hire, likely more than one, YOUNGER digital age savvy professors.

The Age Discrimination in Employment Act {ADEA} was designed to protect employees from age discrimination. It applies to employees aged 40, or over. In Texas we have in the Texas Labor Code a nearly identical protection for workers 40, or over. And there is one more federal enactment: The Old Workers Benefit Protection Act {OWBPA} which is now a part of the ADEA and governs certain aspects of age discrimination, benefit protection and settlement requirements. In Texas to preserve your age discrimination claim you may file with the Texas Workforce Commission – Civil Rights Division {TWC-CRD} within 180 days of the discrimination. And if you do, since we are a dual filing state, you will also automatically be registering your complaint with the Equal Employment Opportunity Commission {EEOC}. If you should miss your 180 day deadline, you may file up to 300 days after the complained of discrimination with just the EEOC. Remember, filing with your internal grievance structure in your college or university will not satisfy these filing requirements. Current law requires, for the most part, that you satisfy this filing requirement before bringing suit. Once your claim has been investigated, the TWC-CRD will issue you a Right to Sue Letter giving you 60 days to file suit in state district court. The EEOC, when its investigation is concluded, will issue you a Right to Sue Letter to file suit in a federal district court within 90 days. For a state claim, regardless of how long it takes the TWC-CRD to investigate your claim, to preserve it, you must file suit no later than two years after the complained of discrimination in state district court. For an EEOC complaint, your only statute of limitation for bringing your claim in federal court will be 90 days from when the EEOC issues their Right to Sue Letter, even if that date extends beyond two years from the alleged date of the discrimination. Also know that once you have filed any such claim, any act of retaliation by your employer that constitutes an adverse employment action, requires you to file a claim of retaliation with the same time periods with the same agencies. Also, because the courts have treated retaliation claims as more valid, than the underlying claims of discrimination, my advice is to file early and often to protect to the greatest extent your right to complain and be protected in court.

Going through a Post Tenure Review for any faculty member age 40, or over, should be carefully watched. Is tenure being revoked for reasons related to age/salary of the professor under review? I hardly ever see direct evidence to conclusively prove that age discrimination has occurred. It normally takes circumstantial evidence, {more than one source of evidence} and legal help, to make a case to challenge an over aggressive Post Tenure Review process that is really masquerading as age discrimination. Remember, also, if everyone “gets” the joke, and you don’t, that usually means the joke is on you! Don’t end up being the joke at the next masquerade ball – that everyone else tells you is – Post Tenure Review!

“The information in this column is intended to provide a general understanding of the law, not as legal advice. Readers with legal problems, including those whose questions may be addressed here, should consult attorneys for advice on their particular circumstances.”

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