The U.S. Supreme Court will decide an issue this term that is critical to millions of older workers at our nation’s largest employer, the U.S. government.
The section of the Age Discrimination in Employment Act of 1967 (ADEA) that applies to federal sector employees is seemingly straightforward and unambiguous. The U.S. Congress wrote that personnel actions affecting federal employees age 40 years or older “shall be made free from any discrimination based on age.” (29 U.S.C. § 633a). A middle schooler would likely deduce that age discrimination can play no role in federal employment decisions.
Yet, two federal courts of appeal require federal sector workers suing for age discrimination to show that age discrimination was the determinative or “but for” cause of an employment action (i.e., dismissal, failure to hire). In other words, these courts tolerate age bias up to the point where it is shown to be the reason for the adverse action. This is the position of the U.S. Court of Appeals for the 11 th Circuit, which includes Florida, Alabama and Georgia, and the 9 th Circuit, which includes California, Alaska Hawaii, Idaho, Montana, Nevada, Oregon and parts of Washington.
Meanwhile, the U.S. District Court of Appeals for the District of Columbia analyzed the actual text of the federal sector provision in a 2010 case, Ford v. Mobus , and said Congress clearly intended to permit a finding of ADEA liability if a federal employer fails to make decisions “free from” age-based bias. The DC Circuit held federal sector ADEA plaintiffs need only show that age bias was a factor.
The U.S. Supreme Court will definitively interpret the degree of protection afforded to federal sector workers in Babb v. Sec’y Dep’t of Veterans Affairs, a case brought by Noris Babb, a clinical pharmacist at the U.S. Department of Veterans Affairs in Bay Pines, Fl. She claims she was the victim of age discrimination in promotion and suffered retaliation for supporting colleagues’ who complained of sex discrimination.
Babb was one of five female pharmacists over the age of 50 who were allegedly denied the opportunity to work in a higher-paying position in an innovative patient care program instituted by the VA in 2010. She alleges that less qualified and younger female pharmacists and older male pharmacists were promoted to the program. Babb also argues she suffered retaliation because she testified in support of two older female pharmacists who complained of sex discrimination.
There is no dispute that Babb presented enough evidence to create an “inference” that age bias was a motivating factor in her case. Among other things, superiors made ageist comments. However, the 11 th Circuit dismissed her case, ruling she failed to show that age bias was the determinative or “but for” cause of the VA’s actions.
The 11th Circuit itself seemed to question its conclusion in Babb to depart from Section 633a’s plain text, noting that Section 633a “reads differently,” but said it was bound by prior precedent in the circuit to apply the more stringent standard.
Federal workers were not initially protected under the ADEA.
In a “friend of the court” brief, the AARP argues that Congress amended the ADEA in 1974 to protect older federal workers because it was “worried about older employees in higher pay grades unfairly bearing the brunt of efforts to cut federal agency payrolls.” Congress also was concerned that “serious age discrimination problems across the federal government …pose[d] a serious threat to the entire civil service system.” The AARP also writes that age discrimination is particularly harmful to female, African-American and Hispanic federal workers, who also face sex and race bias.
“Regrettably,” the AARP adds, “the United States seemingly elevates its narrow interests as an employer above its duty to see that the laws are faithfully executed… .”
A Muddled Mess
The 52-year-old ADEA is a muddled mess that leaves older workers in the United States with far less protection from harmful and irrational discrimination than is provided under Title VII of the Civil Rights Act of 1964 to victims of discrimination based race, sex, religion, color and national origin.
In 2009, the U.S. Supreme Court created a major split between the ADEA and Title VII in the case of Gross v. FBL Financial Services. Up to that point, the ADEA’s standard of causation was uniformly interpreted to be the same as that of Title VII.
In Gross, the Court said Congress amended Title VII to permit plaintiffs to prevail if they could show that discrimination was a “motivating factor” in an employment decision. The Court observed the ADEA was never similarly amended. The Court said the language of the ADEA requires plaintiffs to show that discrimination is the determinative or “but for” cause of the complained of employment action.
In the past, Congress has quickly acted to “fix” U.S. Supreme Court rulings that yield unfair results such as the one in Gross. However, Congress repeatedly has failed to pass the Protecting Older Workers Against Discrimination Act, (POWADA) which would reestablish the standard of causation that existed under the ADEA prior to Gross.
Babb is also contesting the higher standard of causation (“but for”) applied by the U.S. Supreme to Title VII retaliation claims in 2013 in the case of University of Texas Southwestern Medical Center v. Nassar. The Court in that case followed the reasoning in Gross.