On Monday, The Supreme Court held that the ADEA allows federal employees to sue over any age bias that is part of an adverse employment action, not just in cases where that bias is the determining factor.
Petitioner Noris Babb worked as a pharmacist for the Veterans Affairs (VA) Medical Center in Florida since 2004. While there, her career progressed and Pharmacy management gave her an "advanced scope" (full practice authority) to prescribe medications without a physician, which was an essential part of her job. Years later, Pharmacy management rejected applications for several pharmacists-all females over 50-and granted applications for pharmacists under 40, against recommendations by the Human Resources Department and physicians at the Medical Center.
After being rejected, two female applicants filed EEO complaints, and Babb provided statements in support of their claims to the EEO office. Babb alleged in the complaint at issue that she was retaliated against for participating in the EEO process because, after submitting her statements of support, her advanced scope authority was removed and she was disqualified from a promotion. A female pharmacist under 30 without an advanced scope was ultimately selected for the same promotion.
Babb filed suit under Title VII and the ADEA alleging she was discriminated against based on her age and gender and that the VA retaliated against her for participating in the EEO process. The district court granted summary judgment for the VA. On appeal at the Eleventh Circuit, the court affirmed the lower court's decision, finding that federal sector employees' claims under the ADEA and Title VII require the plaintiff to show discrimination or retaliation is a "but-for" factor in the adverse employment action.
At issue before the Supreme Court was whether Section 633a(a) of the Age Discrimination in Employment Act of 1967 (ADEA), which protects federal employees aged 40 years and above from age discrimination, requires an employee to prove that age was a but-for cause of the adverse personnel action. The Supreme Court held that the federal-sector provisions of the ADEA do not necessarily require proof that an employment decision would have turned out differently if age had not been taken into account but that "but-for" causation is important in determining the appropriate remedy. Specifically, to obtain reinstatement, backpay, compensatory damages or other relief related to the adverse action, it's necessary to show that the personnel action would have been different if age had not been taken into account (i.e., one must show "but-for" causation). However, if age discrimination played a lesser part in the decision, a violation has still occurred and other remedies may be appropriate.
Justice Alito used the following example to highlight this distinction in practice: a decision-maker is trying to decide whether to promote employee A (35 years old), or employee B (55 years old). For promotions, the employer uses a numerical score system based on non-discriminatory factors and the employee with the highest score is promoted. Candidates over age 40 are automatically docked five points. Employee A (35 years old) received a score of 90, and employee B (55 years old) received a score of 85 and then was docked the 5 points for being over 40. This decision was not "made" "free from any discrimination" but the difference in treatment did not affect the outcome, and therefor age was not a but-for cause of the decision to promote employee A. However, the Supreme Court held, under the language of Section 633a(a), this does not preclude liability.
In reaching its decision, the Court focused on the plain meaning of Section 633a(a) (employment actions affecting agency employees "shall be made free from any discrimination based on age"), stating that it "does not require proof that an employment decision would have turned out differently if age had not been taken into account," rather the bias must play some part during the moment when the employer takes the adverse action in question. The Court further reiterated the distinction between the private- and public-sector provisions of the ADEA, and that it was not convinced it would be wrong to "hold the federal government to a stricter standard than private employers or state and local governments."