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Justices contemplate whether ‘but-for’ causation applies to federal-sector ADEA claims

By Pamela Wolf, J.D.

That there should be parity between federal and private-sector, state, and local government burdens of proof was a challenging argument to make, given language differences in the applicable provisions. Also, the Chief Justice referenced “OK Boomer.”

On January 15, the Justices heard oral argument in a case that will determine whether federal agency employees seeking to prevail on allegations of discrimination in violation of the ADEA’s federal-sector provision will be required to prove that “age was a but-for cause of the challenged personnel action.” Although the federal government argued for parity between federal-sector and the private-sector, state, and local government provisions, equal protection and other concerns may undercut that argument.

In Babb v. Wilkie (18-882), a VA medical center pharmacist contends that the differing language in the ADEA’s federal-sector provision permits a more lenient “motivating factor” analysis, rather than the “but-for” causation applied in the private sector.

Below, she alleged that she was subjected to gender-plus-age discrimination in violation of Title VII and the ADEA, among other claims. The district court granted the VA’s motion for summary judgment on all of her claims.

Summary judgment affirmed. The employee appealed, contending, among other things, that the district court erred by applying the McDonnell Douglas standard instead of the more lenient “motivating factor” test to her gender and age discrimination and retaliation claims.

In July 2018, in an unpublished opinion, the Eleventh Circuit affirmed summary judgment of the employee’s ADEA, Title VII retaliation (and hostile worker environment) claims, but it reversed on her gender discrimination claim and remanded for consideration under the motivating-factor standard.

ADEA’s federal-sector provision. As to the employee’s age discrimination claim, the appeals court noted that the ADEA’s federal-sector provision states in relevant part that “[a]ll 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 asserted that this particular framing, which, unlike the private-sector provision, requires that employment decisions be made “free from any discrimination” based on age, demands a different result than in the Supreme Court’s decision in Gross v. FBL Financial Services, Inc. (2006), and should be read to encompass a motivating-factor standard, rather than the “but-for” causation standard established in Gross.

While the Eleventh Circuit characterized the employee’s argument as “not insubstantial,” it was nonetheless foreclosed by existing precedent in Trask v. Secretary, Department of Veterans Affairs, in which the appeals court applied the McDonnell Douglas standard to an ADEA claim brought by two other federal government employees who had worked at the same facility where the plaintiff worked; they also made many of the same allegations. The court was bound by prior precedent.

Although the panel in Trask did not analyze the linguistic differences between the ADEA’s private- and federal-sector provisions, as the employee asserted, the Eleventh Circuit had also consistently and forcefully rejected the “overlooked reason” exception to its prior precedent rule. Thus, the district court did not err in applying the McDonnell Douglas test to the employee’s ADEA age discrimination claim.

Do Nassar and Gross apply in the federal sector? In her petition for certiorari, the employee framed the issue as whether the Supreme Court’s decisions in University of Texas Southwestern Medical Center. v. Nassar (2013) and Gross, interpreting statutory language applicable to the private sector, bar the use of the “a factor,” “motivating factor,” or “substantial factor” standard in Title VII and ADEA retaliation cases brought by federal-sector employees under different statutory language. According to the employee, the High Court’s reasoning in earlier cases suggests that the differing statutory language applicable to federal-sector and private-sector claims mandates differing approaches.

In granting certiorari, the Supreme Court narrowed the question it will address to reach only the burden of proof in federal-sector age discrimination claims.

“But-for” causation required. In its brief on the merits, the VA pointed out that the ADEA’s and Title VII’s private-sector provisions apply to state- and local-government employers as well as private employers. And the High Court has held that the ADEA’s private-sector discrimination provision, like Title VII’s private-sector retaliation provision, requires proof of but-for causation. “Thus, if petitioner’s age-discrimination claims had been brought against a state or local government, she would have been required to demonstrate but-for causation,” the VA noted.

The VA also underscored that the ADEA’s federal-sector provision “states that ‘[a]ll personnel actions affecting employees or applicants for employment” in executive agencies “who are at least 40 years of age * * * shall be made free from any discrimination based on age.’” Notably, the federal-sector provision of the ADEA—like that of Title VII—uses the same phrase, “based on,” that the Supreme Court said in Nassar “indicates a but-for causal relationship.”

It’s about the decision-making process. At oral argument, Roman Martinez (Latham & Watkins), arguing for the employee, cited the language of the ADEA’s federal-sector provision (29 U.S.C. 633a), that “all federal personnel actions shall be made free from any discrimination based on age,” telling the Justices that here, both parties agree this language “tracks the text and meaning of Title VII’s identical federal-sector provision covering race, sex, and religion.” Together these ADEA and Title VII provisions “bar discrimination not only in the ultimate outcome of a personnel decision but also in the process of making that decision.” (Emphasis added.).

According to Martinez, this is true “regardless of whether the prohibited characteristic at issue is a but-for cause of the final decision.” The Merit Systems Protection Board and the EEOC have applied this rule “in countless cases for many years, but more importantly it flows directly from the statutory text.”

Age or race as negative factor. “The phrase ‘free from any discrimination’ governs how the decision shall be made,” Martinez continued. “In other words, the process for making that decision. If that process uses age or race as a negative factor, it’s not made free from any discrimination.”

Addressing equal protection injuries. Those words were chosen carefully by Congress, rejecting the private sector language later addressed in Gross and Nassar, Martinez argued, explaining that lawmakers did so “in the unique federal sector context to create a remedy for violating constitutional equal protection rights.” He explained that the Supreme Court has said, “when a plaintiff is subjected to discrimination in the process of being considered for a government benefit, he necessarily suffers a redressable equal protection injury even if he can’t prove he otherwise would have received a benefit.”

This same injury rule governs Section 633a and Title VII, Martinez asserted, saying the “rule is fully consistent with common law principles and this Court’s but-for causation analysis in other cases.”

“Made free from any discrimination.” The employee’s attorney characterized the federal government’s theory in this case as “it’s perfectly lawful for federal agencies to apply ‘younger is better’ or ‘whiter is better’ hiring policies to individuals who can’t prove that they would have been hired but for those policies.” Martinez called that position “anti-textual” and “wrong.”

“Decisions applying such blatantly discriminatory policies are obviously not made free from any discrimination,” Martinez said, adding that the government’s theory “contradicts the plain statutory language.”

Corrupted process example. Pressed by Justice Sotomayor for an example of one of the employee’s allegations to show that that process was corrupted because of her age, Martinez offered a scenario under which the Court concluded the reason she was denied certain training opportunities was “partly because they thought there were other candidates who were good, but partly because they had a conversation around a table and said, you know, Ms. Babb, she’s really kind of old, we don’t really like her, she keeps filing these EEO claims, she keeps asserting her rights in this way. Let’s not give her the training opportunities in part for that reason.”

The government hypothetically could come back and prove that there were other more qualified candidates, “but that process has been infected by the consideration of those very significant factors of pure age discrimination,” Martinez argued.

Not the right remedy? Chief Justice Roberts queried whether, when there’s a tainted process, the Court usually makes the decisionmaker go back and do it over without the taint.

Martinez said that “in a circumstance which that was possible, that might well be [an] available remedy as well.” He added: “I don’t know if those roles even currently exist in the same way they did several years ago. But I think that’s yet another example of the kind of equitable remedy that could be awarded if the process was determined to be tainted.”

Same standard for private and state and local governments. For his part, Solicitor General Francisco underscored that the federal-sector ADEA adopts the same causation standard that applies to state and local governments and private companies—but-for causation. He argued that, “as in Gross and Nassar, nothing in 633a clearly overrides the common law default rule of but-for causation.”

Parity with private-sector intended. Francisco also argued that there is “no reason why Congress would have created a lower causation standard for the federal government than for state and local governments,” and cited the federal provision’s principal sponsor’s comment, that “under 633a, ‘government employees will be subject to the same protections against arbitrary employment based on age as are employees in the private sector.’”

In response to an inquiry from Justice Kavanaugh, Francisco said that under Martinez’s earlier explicit younger-is-better policy hypothetical, the employee “would be treated exactly the same as if he or she worked for a state or local government or a private employer. No different than anyone else covered by Title VII.”

However, it would be a violation of a Civil Service Reform Act provision under which “all employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to age.”

No equal protection motivation? As to the equal protection aspect of Section 633a, the Solicitor General, responding to a question from Justice Sotomayor, said: “If Congress had in fact intended to apply equal protection principles, it presumably would have applied the same standard to state governments since they’re subject to the same equal protection principles that the federal government is. There’s no evidence that Congress was more concerned about the federal government than the state government. Quite to the contrary.”

Said Justice Sotomayor in reply: “General, unfortunately you’re wrong because the EEOC and the civil service agency have been reading that equal protection principle even before this provision into federal decisionmaking.”

No parity in interpretation. If they had wanted to follow the state and local provision, they would have, Sotomayor continued. “But they created a different and totally separate provision, and on top of it they said that language of the private and state government should not be used to interpret this language that affects the federal government.”

Defending his position, Francisco said the suggestion by Martinez “is that somehow when Congress extended Title VII and the ADEA to governmental entities—and remember, they did it at the same time. They went from private to private and federal and state governments at the same time. And when Congress made that step, the argument is that somehow it was meant to embody equal protection principles.”

But if that were the case, the Solicitor General continued, “one would have fully expected that they would apply the same equal protection principles to both the federal government and the state governments, but everyone here agrees that with respect to state governments, it’s the but-for causation standard that applies.”

Federalism concerns. Not buying this theory, Justice Ginsburg explained: “There is a federalism concern, when you’re dealing with state and local governments, which you don’t have when you’re dealing with the federal government alone, and why wouldn’t—the language as Mr. Martinez pointed out is different. You’re treating all those extra words as just a meaningless surplus.”

“If they wanted to be the same standard as for private sector employment, state and local government employment, they would have used the same language, but they didn’t,” Ginsburg added.