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The Bar Bulletin
Jax Daily Record Thursday, May 7, 202007:30 AM EST

Age Discrimination: What it takes to prove a case

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Supreme Court eases burden of proof for federal employees.

By  G. Thomas Harper, JBA Alternative Dispute Resolution Committee co-chair

In a case from the Veterans Medical Center in Bay Pines, an 8-1 majority of the U.S. Supreme Court issued a decision that makes it easier for federal employees to prove age discrimination.

The court ruled that the federal-sector provision of the Age Discrimination in Employment Act, which is different than the private sector provision, should be weighed under a different standard.

The federal employee prohibition on age discrimination provides that personnel actions affecting federal employees age 40 years or older shall be made free from any discrimination based on age. The court ruled that this language means that, for federal employees, age cannot be a motivating reason for any personnel action.

An employee does not need to show that age was a “but-for” cause of the challenged personnel action. Instead, just showing that age was a “factor” in the decision is enough to prove discrimination.

What does it take to prove age discrimination?

The ADEA provision that covers discrimination claims against private-sector employers and state and local governments provides that, “…it shall be unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.”

Based on this precise language in the law, the Supreme Court ruled years ago that a “but-for” causation must be shown by a private-sector employee to survive dismiss of their claims.

An employee in the private sector must present sufficient evidence that, but for his age, the challenged decision would not have occurred; e.g., that age was the reason an employer decided to act. This is a high standard and results in the dismissal of many age suits against companies in the private sector.

Which standard applies?

However, the provision in the ADEA that governs discrimination claims brought by federal-sector employees reads differently than the above section applying to private sector employers.

The federal sector language states, in a separate provision, that “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.”

The case before the Supreme Court was brought by Noris Babb, a clinical pharmacist at a VA Medical Center. Babb argued that the federal-sector provision’s particular syntax—which, unlike the private-sector provision, requires that employment decisions be made “free from any discrimination” based on age—requires a different standard for federal workers and should be read to embody a motivating-factor rather than but-for causation standard.

Babb argued that if age in any way motivated the decision, age discrimination is established. The Supreme Court agreed with Babb, reversing the federal appeals court over Florida and resolving a split in the different courts of appeal.

Multiple claims of age/gender discrimination

Babb’s lawsuit was the second age discrimination suit from the Bay Pines VA Center. Two of her co-workers brought suit before her and Babb testified in support of her colleagues.

Then, at age 54, Babb brought her own suit claiming that she had been passed over for promotion, denied training opportunities, retaliated against and harassed due to her age. Hired in 2006, Babb advanced as a clinical pharmacist. In 2011 she obtained the “advanced scope” designation which, among other duties, allowed her to see and treat geriatric patients independently.

However, in 2013 after she helped other employees with their age claims, the VA took away Babb’s “advanced scope” designation, which had made her eligible for promotion on the federal government’s wage scale from a GS-12 to a GS-13.  During this same time period, she was denied training opportunities and was passed over for positions in the hospital’s anticoagulation clinic. 

The next year, Babb was placed in a new position, and while her grade was raised to GS-13, her holiday pay was reduced. Babb claimed that these personnel actions were the result of age and gender discrimination.

Babb also alleged that several of her supervisors at the VA facility made age-related comments.

After discovery was completed, the lawyers for the VA asked the federal court in Tampa to throw out Babb’s claims. The VA pointed to the business reasons that it provided for each personnel decision and argued that Babb could not prove that but for her age, the challenged decisions would have been different.

The lower court found that Babb had proven the basic elements required for age discrimination, that the VA had come forward with proof of legitimate business reasons for the challenged actions, and then concluded that no jury could reasonably conclude that the reasons given by the VA were a pretext for age discrimination.  

The existing case precedent that the District Court judge was required to follow set forth a but-for causation standard, even though that case precedent did not consider the different phrasing in the federal portion of the ADEA.

Under the “but-for” analysis, U.S. District Judge Virginia Hernandez Covington could not say that Babb presented sufficient evidence to prove each of her age and gender claims.

She dismissed Babb’s case and Babb appealed to the federal 11th Circuit Court of Appeals in Atlanta.

On appeal, a three-judge panel agreed with Covington that the but-for standard applied in age cases. The panel wrote that, if they had a “clean slate” to write with, they may decide otherwise, but they were bound by a prior decision of another panel at the 11th Circuit and were required to use the but-for standard.

Most of the case was affirmed, even though one of Babb’s claims was sent back to the lower court for reconsideration. Since the use of the but-for standard was affirmed by the 11th Circuit, Babb appealed to the U.S. Supreme Court, which took the case to decide just one issue: Whether the federal-sector provision of the ADEA requires an employee/ plaintiff to prove that age was a but-for cause of the challenged personnel action.

The case was argued before the court in January.

Babb insisted that the absence of the “because” language that drove the but-for result in a prior Supreme Court decision, combined with the presence of the broad phrase “free from any discrimination,” required application of a “motivating-factor” standard, a more relaxed standard for federal employees. The high court agreed.

Justice Samuel Alito wrote the majority opinion. The court’s decision was based on the plain language of the federal age discrimination provision and how it differed from the private sector provision.

The court looked at the regular dictionary meanings of the words and phrases in the federal law and concluded the meaning was straightforward. The Court found that the plain meaning of the terms meant that the provision for federal workers does not require proof that an employment decision would have turned out differently if age had not been taken into account.

“The provision in our case, (the federal ADEA provision) prohibits any age discrimination in the ‘making’ of a personnel decision, not just with respect to end results.”

Alito explained that the plain meaning of the critical statutory language (“made free from any discrimination based on age”) demanded that personnel actions by the federal government should be untainted by any consideration of age. 

Before the court, Babb argued that the different language used in the federal age law prohibited any adverse consideration of age in the decision-making process. Babb argued that proof that age was a “but-for cause” of a challenged employment decision is not needed.

Babb also argued that the federal government should be held to a stricter standard than private employers. The court, however, disagreed and said that if Congress had wanted to impose the same standard on all employers, it could have easily done so.

The court also reviewed the history of the passage of the ADEA. The law was passed in 1967 and applied only to actions against private employers. Then, in 1974, Congress expanded the scope of the ADEA to reach both state and local governments and the federal government.

To accomplish this, Congress added state and local governments to the definition of employer in the private sector portion of the ADEA. The court noted that Congress could have easily done the same for the federal government but did not.

The court held that the language of the ADEA provision for federal workers was “couched in different terms than for private sector workers and does expressly impose liability if age discrimination plays a part in a federal employment decision. Since the meaning of the language in the federal ADEA provision was clear and unambiguous, the court’s analysis was complete and no other explanation was required.”

“But-for” proof still will be needed to determine the remedy for a federal worker’s discrimination. The court’s decision made clear that but-for causation is still relevant in determining what the appropriate remedy for age discrimination would be.

The opinion explained “this does not mean that an employee/ plaintiff may obtain all forms of relief that are generally available for a violation of (the federal ADEA provisions), including hiring, reinstatement, backpay, and compensatory dam-ages, without showing that a personnel action would have been different if age had not been taken into account. To obtain such relief, a plaintiff must show that age was a but-for cause of the challenged employment decision.”

Thus, federal employees who show only that they were subjected to unequal consideration cannot obtain reinstatement, back pay, compensatory damages or other forms of relief related to the end result of an employment decision. To obtain such remedies, these plaintiffs must show that age discrimination was a but-for cause of the employment outcome.

The court explained, “Although unable to obtain such relief, employees are not without a remedy if they show that age was a but-for cause of differential treatment in an employment decision but not a but-for cause of the decision itself. In that situation, plaintiffs can seek injunctive or other forward-looking re-lief.”

Determining what relief, if any, is appropriate in the present case is a matter for the District Court to decide, if Babb succeeds in showing that the ADEA was violated. The decision of the 11th Circuit was reversed and the Supreme Court sent the case back to the District Court to weigh the evidence under the different standard.

G. Thomas Harper is a board certified labor and employment law attorney, certified civil and appellate mediator and court appointed arbitrator in Jacksonville.

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