April 06, 2020

Supreme Court Decides Babb v. Wilkie, No. 18-882

On April 6, 2020, the U.S. Supreme Court decided Babb v. Wilkie, holding that the federal-sector provision of the Age Discrimination and Employment Act of 1967 (ADEA), 29 U.S.C. §633a(a), does not require proof that age discrimination was the “but-for cause” of the personnel action.

Noris Babb, a Veterans Administration (VA) employee, brought several age-discrimination claims against the VA. The District Court granted the VA’s motion for summary judgment after applying the McDonnel Douglas burden-shifting framework and finding that the VA had “proffered legitimate reasons for the challenged actions, and that no jury could reasonably conclude that those reasons were pretextual.” Babb appealed, and the U.S. Court of Appeals for the Eleventh Circuit affirmed. Babb sought Supreme Court review, arguing that the District Court should not have used the McDonnell Douglas framework because the ADEA’s federal-sector provision does not require “but-for” causation and “a personnel action is unlawful if age is a factor in the challenged decision.”

The Supreme Court reversed, rejecting a blanket “but for” causation requirement and holding that “[t]he plain meaning of the critical statutory language . . . demands that personnel actions be untainted by any consideration of age.” The “but-for” standard remains relevant, the Court noted, because some forms of relief, such as hiring, reinstatement, backpay, and compensatory damages, are available only on a showing of “but-for” causation. But other remedies are available even if “age discrimination played a lesser part in the decision.”

The Court focused on the statutory language, which provides that “[a]ll 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). The Court interpreted the phrase “free from” to mean that “a personnel action must be ‘untainted’ by discrimination based on age.” It held that the phrase “based on age” modified the noun “discrimination” and not the phrase “personnel actions.” Therefore, “age must be a but-for cause of discrimination . . . but not necessarily a but-for cause of a personnel action itself.” The Court noted that a plaintiff would still need show “but-for” causation to obtain reinstatement, back-pay, compensatory damages, or other forms for relief related to the end result of an employment decision.

The Court rejected the government’s argument that discrimination based on age required “but-for” causation, noting that “under §633a(a), age must be the but-for cause of differential treatment, not that age must be the but-for cause of the ultimate decision.” The Court also rejected the government’s attempts to draw parallels to decisions regarding the Fair Credit Reporting Act, the private-sector provision of the ADEA, and Title VII’s anti-retaliation provision, noting differences in the reasoning and the statutory language in those cases. Finally, the Court noted that Congress deliberately chose to hold federal employers to a higher standard.

Justice Alito authored the opinion of the Court which was joined by Chief Justice Roberts, and Justices Breyer, Sotomayor, Kagan, Gorsuch, and Kavanaugh. Justice Ginsburg joined as to all but footnote 3. Justice Sotomayor filed a concurring opinion which Justice Ginsburg joined. Justice Thomas filed a dissenting opinion.

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