This week, my toddler invented a new word: “fleever.” A “fleever” is a make-believe power tool used to clean floors.  Any household item may be used as a fleever–a flashlight, a hiking pole, an empty roll of paper towels.  At its essence, fleevering involves making sweeping motions across the floor.  Fleevering is always accompanied by sound effects, similar to the sound of a weed eater or leaf blower.  The sound effects should be fairly loud, as fleevers have only one speed: high.

What does fleevering have to do with the Texas Supreme Court? Recently, the Court created a new power tool for employers in age discrimination cases filed under state law. Specifically, in Mission Consolidated Independent School District v. Garcia, the Court held that an employee suing for age discrimination under state law who is replaced with someone older may never establish age discrimination by circumstantial evidence. In doing so, the Court arguably declined to follow the rulings of the Supreme Court and Fifth Circuit, which allow a plaintiff to establish a prima facie case of age discrimination by showing that he was “otherwise discriminated against because of his age.”

Mission Consolidated fails to acknowledge that the motives for replacement may be completely unrelated to the motives for termination. As pointed out by Chief Justice Jefferson in his dissent, “It cannot logically follow that the employer’s later decision to hire an older worker absolves it of its original sin.” As a result of the Court’s ruling, however, state employers who may have discriminated on the basis of age now have a “winning blueprint:  hire a worker of the same protected class.”