Wednesday, April 8, 2020

Babb v. Wilkie: A Hollow Victory for Federal Employees

In Babb v. Wilkie, No. 18-882 (U.S. Apr. 6, 2020), the Supreme Court held that a federal employee alleging age discrimination can prevail even if age was not a but-for cause of the final personnel action being challenged. 

Although nominally ruling for the petitioner, a longtime employee of the Department of Veterans Affairs, the Court has in reality handed a significant win to federal agencies. The Court's ruling is akin to a loss for employees because the Court rejected the less stringent motivating-factor standard applicable to most private-sector claims under Title VII of the Civil Rights Act of 1964 and instead doubled down on the principle that but-for causation is the default standard.

Pursuant to § 633a(a) of the Age Discrimination in Employment Act, "[a]ll personnel actions affecting [federal] employees or applicants . . . shall be made free from any discrimination based on age." The Court agreed with the petitioner that, because this provision does not merely require that personnel actions be free from age discrimination but also that the making of those actions be free from age discrimination, the statute "demands that personnel actions be untainted by any consideration of age." Thus, the Court concluded that a federal agency violates the ADEA if it engages in age discrimination in the process of making a personnel decision even if it would have made the same ultimate personnel decision in the absence of discrimination.

To illustrate this principle, Justice Alito explained that it would violate § 633a(a) if a federal agency gave numerical scores based on non-discriminatory factors to candidates for promotion and then docked candidates who are forty or older five points. Under such circumstances, an applicant forty or older could establish a violation if his or her score was docked five points because of age even if the person selected for promotion received a score more than five points higher and thus the age-based scoring system did not affect the outcome for the applicant.

If the Court had stopped there, then the decision would be a significant victory for federal employees and applicants. However, the Court went on to explain that, under § 633a(a), "age must be the but-for cause of differential treatment" even if age was not the "but-for cause of the ultimate decision." In adopting this framework, the Court rejected the alternative advanced by the petitioner. In her brief, the petitioner contended that the phrase "based on age" in § 633a(a) does not constitute a standard of causation and "simply identifies the type of discrimination—'age' as opposed to some other characteristic—that is prohibited by the statute." Citing recent federal-sector decisions by the Equal Employment Opportunity Commission, the petitioner contended that if a federal-sector plaintiff establishes that age was a motivating factor for a personnel action, then the burden of proof shifts to the agency to show that it would have made the same decision in the absence of age discrimination.

The Court unquestionably rejected this interpretation, instead applying the default rule of but-for causation:

Under § 633a(a), the type of discrimination forbidden is "discrimination based on age," and "[i]n common talk, the phrase 'based on' indicates a but-for causal relationship." Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 63, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007); cf. Comcast Corp. v. National Assn. of African American-Owned Media, ante, at ––––. Therefore, § 633a(a) requires that age be a but-for cause of the discrimination alleged.
The upshot of the Court's interpretation of § 633a(a) is that a plaintiff is not limited to challenging final personnel actions, yet the plaintiff still bears the burden of proving that the discrimination alleged would not have occurred but for the plaintiff's age.

To be sure, the Court ruled for the petitioner and agreed that § 633a(a) provides broad protection against age discrimination in the making of personnel actions. Still, given the rejection of the motivating-factor standard, the ruling will likely do little to help plaintiffs prevail when, as in the vast majority of cases, they challenge actual personnel actions.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.