The U.S. Supreme Court Changes the Standard of Proof in Age Discrimination Cases Filed Against Federal Employers

In an age discrimination case filed by a federal Department of Veterans Affairs employee, the U.S. Supreme Court held that a federal employee or applicant may establish that an adverse personnel action took place by showing that their age was simply a “motivating factor” in the federal employer’s decision.  Babb v. Wilkie 589 U.S. __ (2020).

In Babb, the Court was asked to decide whether the provision of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §633a(a), that covers federal employers imposes liability only when age is a “but for cause” of the personnel action in question. The case involved a clinical pharmacist who alleged the VA denied her promotion opportunities because of her age.

In an 8-1 vote on April 6, 2020, the Court ruled that in §633a(a), which provides that “personnel actions” affecting employees or applicants aged 40 and older “shall be made free from any discrimination based on age,” Congress emphasized the importance of federal employers taking personnel actions that are not tainted by differential treatment because of age. In contrast, noted the Court, the ADEA provision applicable to private and state and local government employers, 29 U. S. C. §623(a) prohibits discrimination “against any individual … because of such individual’s age.”

An individual suing for age discrimination under the ADEA would ordinarily have to make a showing that the adverse employment action was the “but for” cause for the action or prove that an employment decision would have turned out differently if age was not a factor. This burden allows the employer to establish that the decision was based on legitimate business reasons. This remains the standard for private and state and local government employers under the ADEA. However, the new standard in Babb v. Wilkie makes it easier for federal employees and applicants to establish a claim of workplace age discrimination against employers.

The Court’s decision also covered the remedies available to federal employees or applicants who meet the “motivating factor” test. The Court concluded that such plaintiffs may be eligible for injunctive relief or an order requiring the employer to stop using a discriminatory process in the future. However, to recover compensatory damages, such as back pay or reinstatement, a plaintiff suing a federal employer must still show that the alleged discriminatory action would not have taken place “but for” the plaintiff’s age. A two-justice concurrence clarified that the Supreme Court was not foreclosing claims or damages remedies arising from federal employers’ discriminatory processes, such as a hiring process that requires older employees to pass a test that is not required for younger employees.

In sum, federal employers must ensure that personnel actions, including hiring considerations or decisions to terminate, are not influenced by an individual’s age. Management and those involved in the decision making process must ensure that no slight remark is made or action is taken because of the applicant’s or employee’s age or age-related characteristics.

The ruling does not apply to non-federal employers. Private, state, and local government employers still have the benefit of the “but for cause” test.  However, such employers are encouraged to train management and decision makers on the importance of refraining from making age-related remarks, as age discrimination claims typically involve an accumulation of potentially age-related statements made during the course of a person’s employment.

Please contact the author or your employment law counsel at AALRR for any questions regarding this case or age discrimination issues.

This AALRR post is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

© 2020 Atkinson, Andelson, Loya, Ruud & Romo

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