Older federal employees just got a boost from the Supreme Court's 6 April 2020 interpretation of the causation standard under the federal sector provision of the Age Discrimination in Employment Act (ADEA). To determine the prevailing standard, the court wrestled with the phrase "free from any discrimination based on age" in Section 633a(a) of the ADEA, which provides that "[a]ll 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".(1)
In Babb v Wilkie,(2) the court considered Noris Babb's claims that she had been subjected to age discrimination(3) arising out of certain personnel actions taken by the Veterans Affairs Medical Centre (VA) in Bay Pines, Florida. Those actions included:
- taking away a designation that would have entitled Babb to a promotion;
- denying her certain training; and
- reducing her holiday pay after moving her to a new position.
Babb contended that all of these adverse actions had been motivated, at least in part, by age discrimination in violation of the ADEA. For its part, the VA claimed that these actions had been taken for non-discriminatory reasons and brought a successful motion for summary judgment under the McDonnell Douglas(4) burden-shifting test. Specifically, the district court found that, although Babb made out a prima facie case for age discrimination, the VA had had legitimate business reasons for the actions and that these actions could not be reasonably considered pretextual.
On appeal, the parties framed the dispute around whether Section 633a(a) protects federal employees if age discrimination is only part of the reason for the adverse action or if it is the but-for cause of such actions. Babb argued that the McDonnell Douglas test was inapplicable under Section 633a(a) because, even if the VA had had some non-discriminatory reasons for the adverse actions, some were discriminatory and thus actionable. The 11th Circuit disagreed, finding that precedent in the circuit did not support such an interpretation of Section 633a(a), and affirmed.
In its reversal of the 11th Circuit's ruling, the Supreme Court held that the plain meaning of the phrase "free from any discrimination based on age" required that treatment of federal workers must be "untainted" by age discrimination. Specifically, the court understood the phrasing of Section 633a(a) to mean that age must be the but-for cause of the discrimination – but not the but-for cause of the personnel action – to be actionable. To clarify its finding, the court pointed out that the statute does not state that "it is unlawful to take personnel actions that are based on age". Following this logic, the court concluded that "[i]f age discrimination plays any part in the way the decision is made then the decision is not made in a way that is untainted by such discrimination". With this understanding, the court rejected the VA's arguments that precedent rulings undercut Babb's interpretation of Section 633a(a) and reversed and remanded the case for further proceedings.
Finally, although the court held that a violation of Section 633a(a) could be established without proof that age was a but-for cause of the VA's personnel decision, whether age was the but-for cause of the ultimate treatment of federal employees is still relevant to assessing damages. As such, without showing that age discrimination was a but-for cause of the employment outcome, Babb and other plaintiffs cannot obtain reinstatement or monetary damages on a Section 633a(a) claim.
Endnotes
(2) Babb v Wilkie, 589 US ____ (2020).
(3) Babb also brought claims for gender discrimination and retaliation in the lower courts, but those claims were not before the Supreme Court.
