Statute of limitations for age discrimination claim runs at firing, not when plaintiff discovers younger replacement has been hired

The New Mexico Court of Appeals has held that the 300-day statute of limitations for age discrimination claims under the New Mexico Human Rights Act begins to run when the plaintiff suffers an adverse employment action, not when she discovers that a younger replacement has been hired.

Judge Hanisee’s opinion in Slusser v. Vantage Builders, Inc. notes that there are two rules in American jurisdictions. The majority rule holds that the statute of limitations for an age discrimination claim begins to run when the plaintiff is injured by an adverse employment action, regardless of whether the plaintiff is aware that the employer may have acted from a discriminatory motive. The minority rule holds, by contrast, that an age discrimination claim accrues only when the plaintiff becomes aware of the employer’s discriminatory motive. 

Thus, plaintiff Diane Slusser (age 41) argued that the statute of limitations should not have begun running when she was terminated, but rather when she became aware that a younger woman (in her 20s) had been hired to replace her in an accounting position.

The majority rule is the better rule because if a plaintiff could wait until he or she allegedly learns of the discriminatory motive underlying an adverse employment action, the plaintiff could simply plead around it — by asserting that he or she did not become subjectively aware of the alleged discriminatory motive until later. This would render the statute of limitations meaningless, and unfairly expose employers to stale discrimination claims.


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