Babb v. Wilkie: Age Discrimination and the "But-For" Standard for Public Sector Employees
In April of 2020, a Supreme Court made up of justices who ranged in age from 52 to 87 entered a ruling on a case regarding age discrimination of federal employees. One might imagine that a nation where octogenarian justices rule on its most important cases and where the largest voter turnout in history elected a 77-year-old as president respects the value of older workers. Unfortunately, even more than half a century after Congress enacted the Age Discrimination in Employment Act, older employees continue to face unfair workplace biases. While the forms of discrimination are often more subtle than before the ADEA, researchers suggest that workers over 40 continue to experience unfair workplace practices that impact their ability to obtain employment, maintain their jobs, and progress in their professions.
In 2013, Dr. Noris Babb, a pharmacist with a Florida-based VA Medical Center, filed a complaint with the Equal Employment Opportunity Commission, alleging that the VA discriminated against her based on gender and age. Shortly after that, in 2014, Dr. Babb filed a lawsuit against the US Department of Veterans Affairs Secretary Robert Willkie, citing the same allegations. Babb's case made its way to the Supreme Court, and in an eight-to-one ruling, the justices found in favor of Babb, reversing and remanding the matter. The Court's opinion states that the statute does not require that age is a "but-for" cause for the employee to show that the employer violated the law. Some observers suspect that the case indicated signals for future discrimination claims, but such may not be the case. The decision is a big one for government employees, but the court’s reasoning doesn’t seem to transfer to the private sector.
The ADEA: History of Age Discrimination and the Law Designed to Create Fairness
Congress enacted the ADEA in 1967, along with other statutes designed to prohibit workplace discrimination. Lawmakers found that biases against older employees led to unproven assumptions that such workers' abilities declined as they age. Research indicates that while older Americans are on average healthier than were older individuals in 1967, biases in the workplace still negatively impact many of them. Six in ten older employees say that they have suffered some form of age discrimination at work. Over the years, Congress has made multiple changes to the ADEA, mostly to expand coverage. Originally, the law protected individuals from age 40 to 65. There is no longer any age cap, and the ADEA covers hiring, firing, benefits, and compensation in the workplace. Any private employers with twenty or more employees are subject to the ADEA. The Act also applies to state governments, local governments, the federal government, employment agencies, and labor organizations.
Dr. Babb's Discrimination Claims
Dr. Babb claimed that the VA discriminated against her because of her age and gender. She also stated that the Agency retaliated against her because she participated in discrimination claims that her co-workers filed. To support her claims of discrimination, Dr. Babb stated that the VA removed her "advanced scope," which provided her the ability to prescribe medications and was necessary for potential promotions. Dr. Babb also claimed that the VA denied her access to training opportunities during the same general time frame and passed her over for several positions. The VA placed Babb in a new position in 2014 and increased her grade. However, she also experienced a drop in her holiday pay. Babb claimed all of these incidents were forms of discrimination. Her supervisors also made age-related comments leading to her believing that her age was a motivating factor in their decisions. Dr. Babb was born in 1960 and in her 50's at the time.
The District Court granted the VA's motion for summary judgment, which claimed that the Agency made decisions regarding Dr. Babb for reasons other than discrimination. The court reasoned that under the case McDonnell Douglas Corp, v. Green, the burden to prove discrimination shifts to the plaintiff and that the reasons provided by the VA were not used as pretexts.
On appeal, Dr. Babb argued that the court used the wrong precedent as the case cited did not cover instances involving mixed motives. On appeal, the court stated that while the judges would have potentially found in her favor, past eleventh circuit decisions precluded her argument. In 2019, the Supreme Court granted certiorari because the relevant provision in the ADEA had led to a circuit split.
Discrimination and "But-For" Causes
The provision of the ADEA that led to controversy states that work-related decisions must be made "free from any discrimination based on age." According to the VA, the language provides a "but-for" requirement, which means that if the government considers age and makes the same decision they would have made had they not considered age, the decision complies with the law. For example, suppose that the government denied a promotion in part because of a person's age but still would have denied the promotion without the age consideration. If the government's argument succeeded, then the agency did not deny the promotion "but-for" the employee's age, and the decision complies with the ADEA.
Dr. Babb argued that the language indicates that age need only be considered and not be the "but-for" cause for the employee to have a valid discrimination claim under the ADEA.
The government pointed to the Court's prior rulings in cases based on the private sector parts of the ADEA. The problem is that those sections state that the work-related determinations for an employee cannot be made "because of such individual's age." The language "because of" and "free from" suggest two different meanings, with "because of" indicating a "but-for" cause and "free from" indicating that age must not be considered regardless of whether resulting decisions would be the same. The Court further indicated that statutes often dictate a higher standard for federal employers than private-sector employees.
The decision will make it easier for federal employees to file claims under the ADEA. However, the Court also stated that without age serving as a "but-for" cause, the plaintiff would not recover the damages that are typically available to plaintiffs in employment discrimination claims. For instance, these plaintiffs will not receive remedies such as reinstatement and back-pay.
Future Implications of Babb v. Willkie
Although the decision indicated a loosening of requirements for claims under the ADEA, the Court's ruling is based largely on a highly specific analysis of the statute's language. The decision will not impact private sector employers and employees. For private sector cases, the plaintiff will still bear the burden of proving that discrimination was a "but-for" cause. Federal employers may wish to ensure that workers are well-trained regarding discrimination issues and avoid making any comments that could expose their agencies to claims based on the looser standard created by Babb v. Willkie.