Last week, the US Supreme Court made it easier for a federal worker to establish a claim for age bias.

This decision does not impact private employers, because it relied on the specific language of the federal sector section of the Age Discrimination in Employment Act (ADEA). But could this signal a possible future loosening of the burden of proof for other plaintiffs? We will have to wait and see.

SCOTUS held that federal employees can establish age discrimination under the federal sector section of the ADEA, merely by proving that age bias “taints the employer’s decision-making process.” Babb v. Wilkie, Secretary of Veteran Affairs, No. 18-882. This is weaker than the “but-for” standard of causation applicable to age discrimination claims under Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009). In other words, the fact that the same employment decision would have been reached had age not been taken into account is not relevant for purposes of deciding a federal government employee’s age discrimination claim.

As a quick review, the ADEA prohibits employers from taking adverse employment actions or discriminating against any individual because of his or her age. To prove age discrimination, an employee must prove that the adverse employment action at issue would not have occurred “but-for” the employee’s age. By comparison, the federal-sector provision of the ADEA, which applies to employees of the federal government, states:

“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) (emphasis added).

Noris Babb, a clinical pharmacist employed for 16 years at a U.S. Department of Veterans Affairs Medical Center sued the Secretary of Veterans Affairs (VA) for age discrimination, gender discrimination and retaliation, challenging a number of adverse employment actions.

The VA moved for summary judgment, and the District Court granted the VA’s motion after finding that no jury could reasonably conclude that the VA’s legitimate, non-discriminatory reasons for the challenged actions were pre-textual. On appeal, Babb contended that – because of the specific language of the federal sector provision – she should prevail if the VA could not prove that each decision was “free from any discrimination”. The Eleventh Circuit denied Babb’s appeal, and the Supreme Court granted certiorari.

The Supreme Court agreed with Babb and held that the plain language of § 633a(a) meant that plaintiff could prove discrimination, simply by proving that the personnel actions might have been ‘tainted’ by any consideration of age.

While a plaintiff need not prove that age was a “but-for” cause of the employment decision at issue in order to establish a claim of age bias, “but-for” causation is nevertheless important in determining the appropriate remedy. According to the Court, a plaintiff cannot obtain back pay, compensatory damages, or other forms of relief related to the end result of an employment decision without showing that age discrimination was a but-for cause of the employment outcome. For example, an employee cannot obtain reinstatement without showing that age was the but-for cause of his or her termination. If discrimination played a lesser part in the employment decision, however, other remedies may be appropriate.


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