SCOTUS to decide legal standard in federal-employee age discrimination

Will federal employees have a lower bar for proving age discrimination in employment than private sector or state and local government workers do?

On Jan. 15, 2020, the U.S. Supreme Court, sometimes called SCOTUS, heard oral arguments in Babb v. Wilkie, a case in which a pharmacist at the Department of Veterans Affairs, a federal agency, alleged unlawful age discrimination (among other things) against her federal employer for providing more opportunities and better pay to younger workers. At issue is the Age Discrimination in Employment Act (ADEA), which directs federal government employers to make "personnel actions affecting employees ... who are at least 40 years of age ... free from any discrimination based on age."

Private employer standard

By contrast, the age discrimination prohibition that applies to private employers as well as state or local government employers says that these employers may not make any employment decision discriminatory "against any individual ... because of such individual's age." SCOTUS has interpreted this previously to require "but-for causation," meaning that without the age discrimination, the employer would not have taken the adverse employment action.

Plaintiff's argument

The language of the two provisions is not the same and Babb's argument is that this means the legal standards are meant to be different. She asserts that the federal employer standard should mean that age discrimination happens whenever age is a negative factor at any phase or in aspect of employment decision making, even if age does not rise to the but-for level of causation.

Babb also notes that the Equal Employment Opportunity Commission (EEOC) and its predecessor agency have long taken the position that Babb asserts - that age discrimination in federal employment happens any time age is considered negatively. She argues that if Congress disagreed with the EEOC, it could have amended the law to clarify its intention.

Government's position

The federal government argues that "based on" should be interpreted the same as "because of" and since both phrases in other contexts have been held to require but-for causation, that standard should apply to federal employee age discrimination claims also. The government also asserts that if Congress meant for age discrimination in federal employment decisions to be illegal even if it was just one factor, it would have included language like "a motivating factor" that it added to Title VII, the major federal anti-discrimination law, to clarify that but-for causation was not required there.

Advocates for the rights of federal employees are watching for this decision with keen interest as the outcome will impact the legal standards applicable to age discrimination claims in federal employment.

From offices in Dallas, Atlanta and Washington, D.C., the attorneys at The Devadoss Law Firm, P.L.L.C., represent federal employees of any federal agency wherever located across the nation in job discrimination and retaliation matters before federal agencies, the EEOC, the Merit Systems Protection Board (MSPB) and in courts.