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Supreme Court to Weigh in on Standard for Age Discrimination by Federal Employers

US Supreme CourtAge Discrimination and Federal Employers

On January 15, 2020, oral argument before the Supreme Court of the United States caught the attention of a news cycle primarily because Chief Justice John Roberts presented an interesting hypothetical question. Chief Justice Roberts presented a scenario in which an interviewer used the phrase “OK Boomer” while meeting with an older applicant. While the question presented by Chief Justice Roberts drew media attention because of the ongoing cultural discussion centered on the phrase “OK Boomer,” the argument before the court that day dealt with issues that could significantly change the way claims of age discrimination against federal employers are analyzed.

The question was presented during oral argument in Babb v. Wilkie, on appeal from the United States Court of Appeals for the Eleventh Circuit, where the Supreme Court is considering whether the federal-sector provisions of the Age Discrimination in Employment Act of 1967 (“ADEA”) requires a plaintiff to prove that age was a but-for cause of the challenged personnel action. The act provides that personnel actions affecting agency employees 40 years old or older be made without “discrimination based on age.”

The petitioner, Noris Babb, was employed as a pharmacist by the Veterans Affairs Medical Center in Bay Pines, Florida. In 2010, Veterans Affairs began a new program and, during the staffing process, rejected the applications of several pharmacists over the age of 50 in favor of two applicants under the age of 40. Two applicants filed complaints with the Equal Employment Opportunity Commission and the petitioner testified in support of the claims, arguing that the given reason for rejection was pretext for age-based discrimination. The petitioner brought the action under Title VII of the Civil Rights Act of 1964 and the ADEA alleging, among other things, that because of her involvement in the two EEO claims, and as a result of her own age, she was discriminated against by denial of opportunities for advancement, as well as retaliated against. The District Court granted summary judgment to Veterans Affairs and the Eleventh Circuit affirmed based on precedent that the plaintiff must prove that the discrimination was a but-for cause of the adverse employment decision.

The Eleventh Circuit decision represents a split from jurisprudence in other circuits and instruction from agencies such as the Equal Opportunity Employment Commission. This split is a result of differences in the language used in the provisions of the ADEA relating to private sector employers and federal sector employers. Private-sector employers have been held to a but-for standard of causation, which the petitioner in this action now argues should be applied to federal employers. Proving but-for causation requires a demonstration that the employment decision would not have been made — but-for– the discriminatory animus. The alternative standard would be more lenient and offer federal employees a path to recovery by proving only that the discriminatory animus was a motivating factor in rendering the employment decision.
The Supreme Court’s decision should come down by the end of June, before the court recesses for the summer. Until then, the state of the law will remain uncertain.

If you are a federal or private sector employee who has any inquiries on age discrimination in the workplace or feel that your rights in the workplace have been violated, please contact Borrelli & Associates, P.L.L.C. immediately to schedule a consultation.


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