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Federal government liable for ‘any’ age bias in employment decisions

Mandy Brown April 23, 2020

Resolving a circuit split, the U.S. Supreme Court ruled 8-1 that the federal government is liable under the Age Discrimination in Employment Act of 1967 (ADEA) unless the government’s “personnel actions [are] untainted by any consideration of age.” The Court rejected the government’s argument that liability attaches only when age is a “but-for cause” of a disputed employment decision but stated that not showing this causal connection would limit the remedies available. (Babb v. Wilkie, 2020 WL 1668281 (U.S. Apr. 6, 2020).)

Noris Babb, born in 1960, was a clinical pharmacist for the U.S. Department of Veterans Affairs Medical Center in Florida. In 2014, she sued the Secretary of Veterans Affairs, alleging—among other claims—age discrimination under the ADEA. As a federal employee, her claims involved 29 U.S.C. §633a(a)), the ADEA federal-sector provision.

The district court granted the defendant summary judgment, finding that under the burden-shifting framework of McDonnell Douglas Corp. v. Green (411 U.S. 792 (1973)), the defendant had “proffered legitimate reasons for the challenged actions, and that no jury could reasonably conclude that those reasons were pretextual.” The Eleventh Circuit affirmed and rejected Babb’s contention that the McDonnell Douglas framework should not have applied to her “mixed motives” claims, noting this argument was “foreclosed” by circuit precedent.

In 2019, the Supreme Court granted certiorari to resolve the causation standard for ADEA federal-sector claims. The federal government maintained that the ADEA federal-sector provision imposes liability only when age is a “but-for cause” of a personnel decision that would not have been made had the employee’s age not been a factor. Babb, however, argued that but-for causation is not required to establish liability under the federal-sector provision because it “prohibits any adverse consideration of age in the decision-making process.” The Supreme Court agreed with Babb.

The opinion, written by Justice Samuel Alito, quoted the federal-sector provision: “All personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . shall be made free from any discrimination based on age.” In contrast, the ADEA provision applying to private employers (§623(a)(1)) prohibits discrimination “against any individual . . . because of such individual’s age.” Reviewing the federal-sector provision, the Court agreed with Babb’s textual interpretation: “[T]he plain meaning of the statutory text shows that age need not be a but-for cause of an employment decision . . . for there to be a violation of §633a(a).”

The Court parsed the provision’s language and discussed two key aspects of its syntax. First, the phrase “based on age” modifies “discrimination” not “personnel actions”—meaning that although age must be a but-for cause of the differential treatment, it need not be a but-for cause of the contested employment decision. Second, the Court noted that the phrase “free from discrimination” modifies the word “made,” requiring personnel actions to be made “in a way that is not tainted by differential treatment based on age.” As a result, the Court wrote, the straightforward meaning of §633a(a) indicates that, for liability to attach, “the statute does not require proof that an employment decision would have turned out differently if age had not been taken into account.”

The Court rejected the defendant’s claim that three cases—Safeco Insurance Co. of America v. Burr (551 U.S. 47 (2007)), Gross v. FBL Financial Services, Inc. (557 U.S. 167 (2009)), and University of Texas Southwestern Medical Center v. Nassar (570 U.S. 338 (2013))—supported its position. These cases, the Court said, involved different statutory provisions and were “entirely consistent with our holding in this case.” The Court also stated that it was not “anomalous” for the federal government to be held to a different standard than private employers: If “Congress had wanted to impose the same standard on all employers, it could easily have done so.”

Finally, the Court noted that although but-for causation of the contested employment outcome is not required for §633a(a) liability, plaintiffs should provide this proof to receive remedies such as “reinstatement, back-pay, compensatory damages, or other forms of relief related to the end result of an employment decision” in addition to remedies such as “injunctive or other forward-look relief.” Reversing the Eleventh Circuit, the Court remanded the case to the district court.

“As a practical matter, this decision is very favorable to federal employees who have been fired, denied promotions, or otherwise adversely affected by personnel decisions,” said Jeffrey White, AAJ senior associate general counsel. “Blatantly discriminatory decisions are relatively rare and, in the context of government personnel actions, difficult to establish. Here, the threshold of showing that a personnel action was tainted by discrimination is a more objective, easier requirement to meet.”

Chief Justice John Roberts and Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan, Neil Gorsuch, and Brett Kavanaugh joined the decision, with Justice Ruth Bader Ginsburg joining except for the third footnote, which analyzed another one of the defendant’s textual arguments. Justice Sotomayor filed a concurring opinion, which Justice Ginsburg joined. Justice Clarence Thomas dissented.

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