Supreme Court Clarifies Standard Federal Workers Must Meet in Age Discrimination Lawsuits

Date   Apr 7, 2020

Executive Summary: On April 6, 2020, the U.S. Supreme Court held that federal-sector plaintiffs in age discrimination cases brought under the Age Discrimination in Employment Act (ADEA) need not show that negative consideration of age is a “but-for” cause of an adverse employment action. See Babb v. Wilkie, 589 U.S. __ (2020). The Court had held nine years ago in Gross v. FBL Financial Services that a private-sector plaintiff must show age was the “but for” cause of an adverse employment action. But the public and private sector provisions of the ADEA are “couched in very different terms,” wrote the Court in Babb. The federal-sector provision of the ADEA, the Court held, demands that personnel decisions be untainted by any consideration of age.

The Case: Plaintiff Nora Babb, born in 1960, works as a clinical pharmacist at the U.S. Department of Veterans Affairs (VA). Babb alleged three adverse employment actions taken by the VA. She contended that the VA took away a designation which would have made her eligible for a promotion; that she was denied training opportunities and passed over for positions; and that she was placed in a new position where her holiday pay was reduced. She maintained that all these actions involved age discrimination and that her supervisors made many age-related comments.

She sued the VA in 2014. The district court granted the VA summary judgment, finding that the VA had proffered legitimate reasons for the challenged actions. The Eleventh Circuit affirmed. Notably, the panel added that it might have agreed with Babb were they writing on clean slate, but Eleventh Circuit precedent foreclosed them from ruling for her.

The Supreme Court granted Babb’s petition for certiorari, and in an 8-1 opinion penned by Justice Alito, reversed the judgment of the Eleventh Circuit.

The federal-sector proscription on age discrimination provides, in pertinent part: ““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.” 29 U. S. C. §633a(a). The Government contended that the provision only admits to recognizing that age must be the but-for cause of the employment action. Babb, on the other hand, argued that the language of the ADEA prohibits any adverse consideration of age in the decision-making process. She thus argued that proof that age was a but-for cause of a challenged employment decision was not needed.

The Court sided with Babb. It found that the plain meaning of the statute dictated its result and that it need not go further in its analysis. The Court then conducted a detailed grammatical analysis and ultimately interpreted the terms “personnel actions” and “shall be made free from any discrimination” to mean what they say. To quote the Court, “a personnel action must be made untainted by discrimination based on age, and the addition of the term ‘any’ . . . drives the point home.” The Court then interpreted the phrase “shall be made,” holding that “shall be made means ‘shall be produced’ . . . . And the imperative mood, denoting a duty . . . emphasizes the importance of avoiding the taint.” Harmonizing this, the Court held that while age must be a but-for cause of discrimination, it does not necessarily have to be the but-for cause of a personnel action itself. The most straightforward meaning of the statute is that “if age discrimination plays any part in the way a decision is made, then the decision is not made in a way that is untainted by such discrimination.”

The Court then rejected the Government’s contrary interpretations of the plain language of the ADEA.

The Court further held that a plaintiff who cannot show but-for cause cannot obtain reinstatement, back-pay, compensatory damages, or other forms or relief related to the end result of an adverse employment decision. Plaintiffs who can show only that they were subjected to unequal consideration in a personnel decision without showing that age was a but-for cause for the decision may be entitled to injunctive or other forward-looking relief.

Bottom Line: The Court clarified it as it has in previous cases that because Congress gave more robust protection to federal sector employees in the ADEA context, the Court would follow suit in affirming that protection. As Justice Alito wrote, “[t]hat Congress would want to hold the Federal Government to a higher standard than state and private employers is not unusual.” The Court reaffirmed the distinction in the ADEA between private sector employers/employees and those in the federal sector.

If you have any questions regarding this Alert or other labor or employment related issues, please contact the author, Jeff Shooman,, counsel in our Berkeley Heights and New York City offices. Of course, you may also contact the FordHarrison attorney with whom you usually work.

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