What Does It Take to Prove Age Discrimination?

Does a federal employee claiming age discrimination have to show that age was the key reason the employer made an adverse employment decision, or that age was just one of several factors that prompted the employer's action?

The high court heard oral arguments Jan. 15 in Babb v. Wilkie, a case that asks what standard of proof applies to a federal government worker's Age Discrimination in Employment Act (ADEA) claim.

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, but the statutory language for such workers is a little different.

The Dispute 

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

The government and the employee disagreed about the level of proof a federal employee must show in an ADEA case. The government argued that a strict "but for" standard, which is used in private-sector age-discrimination cases, should apply to federal workers' claims. This standard means that the employee must show the adverse employment action would not have been taken "but for" the employer's bias.

The employee in the case argued that the language in the ADEA's federal-sector provisions call 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.

"If the court rules that the more lenient standard applies, it may be significantly easier for federal-sector employees to prevail on their ADEA claims," said Damian Cavaleri, an attorney with Hoguet Newman Regal & Kenney in New York City. The "but for" causation standard will still apply to cases brought by employees who work in the private sector and for state and local governments.

"The decision may have larger implications still with respect to how similar language in other federal statutes may be interpreted," Cavaleri noted.

This term, the Supreme Court is also considering the standard of proof for race discrimination claims brought under Section 1981 of the Civil Rights Act of 1866 (Comcast v. National Association of African American-Owned Media).

Words Matter

The employee in Babb focused her argument on the difference between the language that governs private-sector ADEA claims and federal-sector ADEA claims.

For private-sector claims, the ADEA states 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 … employment because of such individual's age." The words "because of" have been interpreted by courts to mean that an employee must show that "that age was the 'reason' that the employer decided to act," or "the 'but for' cause of the employer's adverse decision," according to the 11th U.S. Circuit Court of Appeals, the appellate court in this case.

But the language governing federal employees' claims is different. Those provisions state, "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 employee argued that the language for federal employees' claims sets a more lenient standard. However, the 11th Circuit 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.

Oral Argument

At oral argument, counsel for the employee noted that courts apply the motivating-factor standard for discrimination claims brought under Title VII of the Civil Rights Act of 1964.

The ADEA's federal-sector provisions use the same language as used in Title VII, so the employee argued that the same standard should be applied.

Title VII states, "All personnel actions affecting employees or applicants for employment … shall be made free from any discrimination based on race, color, religion, sex or national origin."

Roman Martinez, an attorney with Latham & Watkins in Washington, D.C., who argued on behalf of the employee, said, "Both parties agree that that [ADEA's] language tracks the text and meaning of Title VII's identical federal-sector provision."

The phrase "free from any discrimination" governs how the decision shall be made, he said. "If that process uses age or race as a negative factor, it's not made free from any discrimination."

Chief Justice John Roberts wanted to know what type of discrimination would be actionable under the motivating-factor standard. If a younger hiring manager says, "OK, Boomer" to an older applicant, "is that actionable?" he asked. "How do you tell what's a significant factor in the decision?"

Martinez said that would likely be "a classic question" for the jury.

Counsel for the government argued that the federal-sector ADEA provisions set the same causation standard as applies to state and local governments and private companies.

"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 on behalf of the government.

"You don't make a personnel action based on age if you make the same decision that you would have made for a similarly situated younger person, since any consideration of age has not affected the decision that you have made," he said.

The Supreme Court is expected to issue a decision in the case by June.