Supreme Court Hears Oral Argument in Federal Sector Age Discrimination Case
On January 15, 2020, the United States Supreme Court heard oral argument in the matter of Babb v. Wilkie. The question in this case is whether the Age Discrimination in Employment Act of 1967 (ADEA) requires federal sector employees to show that age was a “but-for” cause of the personnel action taken. Previously, the court has interpreted the private-sector provision to require “but-for” causation.
The petitioner is a VA employee who claimed discrimination based on her age and gender, as well as retaliation for protected EEO activity. The petitioner also claimed a hostile work environment. After a district court granted summary judgment in favor of the government, the petitioner appealed to the United States Court of Appeals for the Eleventh Circuit. The appeals court admitted that petitioner’s argument was “not insubstantial,” but nevertheless affirmed the district court’s grant of summary judgment on the ADEA claim, leading the petitioner to petition the United States Supreme Court for review.
At the Supreme Court, the petitioner took the position (as she did below) that textual differences in the federal sector provision (specifically the phrase “actions…made free from any discrimination”) showed that Congress’ concern was with discrimination that occurred anywhere during the process, regardless whether discrimination was the ultimate factor in the outcome in a personnel action.
The government argued that Congress would have said so clearly if it intended to broaden the standard for finding discrimination based on age beyond the “but-for” standard that applied in tort law.
The government made the following analogy, which was met with pushback from Justice Alito:
“[S]uppose you had a statute that said all cakes shall be made free from the use of eggs. In the course of the cake baking process, I whisk up a bowl of eggs, I think about dumping it into the batter, but then I say [I am] supposed to be making a … cake without eggs, so I throw it in the trash. I have made a cake free from the use of any eggs, notwithstanding my use of eggs in the cake baking process because the final cake … is free from the use of eggs.”
Justice Alito criticized the analogy, asking whether the statute would be violated by “a little bit of egg” in the “final batter.” The government responded that in that scenario, the egg “would be a but-for cause but maybe not the sole but-for cause.”
Chief Justice Roberts asked whether, if the process was tainted, the government should “go back and do it over without the taint.” Petitioner’s counsel answered that if it was possible, that could be an available equitable remedy.
The parties ultimately disagreed on whether it was the “process,” or the “decision” that must be free from discrimination. Justice Roberts asked about the role of “stray comments” in the process, and how many “stray comments” would constitute unlawful discrimination during the process. He also asked whether policing of consideration of age in the process might eventually become “really just a regulation of speech in the workplace.” Petitioner’s counsel responded that it must be a consideration or speech that has a particular effect. Rather than just saying “OK, boomer,” he stated that a violation of the statute might occur when the government considers two candidates, one 35 years old and one who is 55, and during discussion of the candidates, decisionmakers make assumptions based on the 55-year old’s age: “we’ve got Candidate A who’s 35 and we’ve got Candidate B who’s 55 and is a boomer and is probably tired and – and, you know, doesn’t know – have a lot of computer skills, I think that absolutely would be actionable.”
After prompting from Justice Breyer, petitioner’s counsel stated that the standard petitioner proposes would be “essentially the same standard” as the “motivating factor” standard used in Title VII discrimination cases.
On January 23, 2020, following oral argument, both parties submitted supplemental briefs for consideration.
Read the oral argument transcript in Babb v. Wilkie.
And read the supplemental briefs for both petitioner Babb and respondent Wilkie.
This case law update was written by Conor D. Dirks, Associate Attorney, Shaw Bransford & Roth, PC.
For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.