Justices Side with Federal Employee in Age-Bias Case but Limit Remedies

clinical pharmacist working on laptop

A federal employee claiming age discrimination has to show only that age was a motivating factor—rather than the key reason—that the employer made an adverse employment decision, the U.S. Supreme Court ruled on April 6. But the available remedies may be limited if the employer would have taken the same action anyway for nondiscriminatory reasons.

The AARP Foundation, which filed a friend-of-the court brief on behalf of the employee, said the case posed "an issue of enormous importance" to "millions of members of the U.S. workforce, who are either employed by an entity of the federal government or may apply for such employment in the future, and who now qualify as 'older' workers."

David Monks, an attorney with Fisher Phillips in San Diego, noted that federal employers may now see an increase in complaints alleging age discrimination in the workplace. Despite the higher standard for proving damages and obtaining remedies, he said, the less-exacting standard for proving a violation of the Age Discrimination in Employment Act (ADEA) will embolden plaintiffs and their attorneys to pursue more claims in the hope of obtaining a settlement.

Different Language

In Babb v. Wilkie, a clinical pharmacist for the Department of Veterans Affairs claimed that she was denied career opportunities because of her age and other protected characteristics.

Under the ADEA, employers may not discriminate against workers ages 40 and older based on their age. The law applies to private employers with at least 20 employees, as well as to state and local governments. It also applies to federal government employees, though the provisions are a little different.

A strict "but for" standard of proof is used in private-sector age-discrimination cases—meaning that the employee must show the adverse employment action would not have been taken "but for" the employer's bias.

In this case, the justices were asked to decide what standard of proof applies to a federal government worker's ADEA claim.

The government argued that the same standard applies. "There's no reason why Congress would have created a lower causation standard for the federal government than for state and local governments," argued U.S. Solicitor General Noel Francisco.

The employee in the case, however, claimed that the language in the ADEA's federal-sector provisions calls for a more lenient standard that considers whether age bias was a motivating factor (in addition to other nondiscriminatory factors) for the negative employment decision.

For federal workers, the relevant part of the act states, "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."

Roman Martinez, an attorney with Latham & Watkins in Washington, D.C., who represented the employee, argued that the phrase "free from any discrimination" governs how the decision shall be made. "If that process uses age or race as a negative factor, it's not made free from any discrimination," he said.


The 11th U.S. Circuit Court of Appeal had sided with the government in this case, explaining that the court is required to follow its prior published opinions that applied the "but for" standard. "Although Babb's argument is not insubstantial, it is foreclosed by our existing precedent," the appeals court said.

The Supreme Court reversed the 11th Circuit, holding that a federal employee can establish an ADEA claim without proving that age was a "but-for" cause.

"The plain meaning of the critical statutory language … demands that personnel actions be untainted by any consideration of age," wrote Justice Samuel Alito Jr in an 8-1 decision.

The court took a textual approach to adopt a motivating-factor analysis for ADEA liability, said Damian Cavaleri, an attorney with Hoguet Newman Regal & Kenney in New York City. The justices broadly interpreted the 'made free from any discrimination based on age' language in the statute to apply to the decision-making process, rather than age discrimination being the but-for cause of an employment decision, he explained.

The court rejected the federal government's argument that it shouldn't be held to a stricter standard than private employers or state and local governments. "[I]f Congress had wanted to impose the same standard on all employers, it could have easily done so," Alito wrote.

But the ruling isn't necessarily a boon for plaintiffs. The high court said that but-for causation is important in determining the appropriate remedy. Not all forms of relief—such as reinstatement, backpay and compensatory damages—may be available if the employer would have taken the same action for legitimate, nondiscriminatory reasons.  

"[I]f age discrimination played a lesser part in the decision, other remedies may be appropriate," Alito noted.

Justice Clarence Thomas, the only dissenter in the case, warned that the ruling may cause federal agencies to face "a flood of investigations" by the Equal Employment Opportunity Commission (EEOC) and lawsuits from disgruntled workers. He also said the court's ruling "unnecessarily risks imposing hardship on those tasked with managing thousands of employees" who work for federal agencies.

"Only time will tell whether the 'flood of investigations by the EEOC or litigation from dissatisfied federal employees,' as Justice Thomas cautions in his dissent, will come true," Cavaleri observed. 



Hire the best HR talent or advance your own career.


SHRM LegalNetwork members can quickly connect with attorneys on an unlimited number of topics for a low monthly fee.

SHRM LegalNetwork members can quickly connect with attorneys on an unlimited number of topics for a low monthly fee.



HR Daily Newsletter

News, trends and analysis, as well as breaking news alerts, to help HR professionals do their jobs better each business day.