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Supreme Court to determine whether ‘but-for’ causation required in federal-sector ADEA claims

By Pamela Wolf, J.D.

The petitioner 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.

On June 28, the High Court granted certiorari 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.”

Summary judgment. Below, in Babb v. Wilkie, a pharmacist at a VA medical center in Florida alleged that she was subjected to gender-plus-age discrimination in violation of Title VII and the ADEA. She also alleged retaliation due to her protected EEO activity and a discriminatory and retaliatory hostile work environment in violation of the same laws. The district court granted the VA’s motion for summary judgment on all of her claims.

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.

On July 16, 2018, in an unpublished opinion, the Eleventh Circuit affirmed summary judgment of the employee’s ADEA, Title VII retaliation, and hostile worker environment claims, but it reversed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, requires 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, 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 bars 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.

Question narrowed. 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:

“Whether the federal-sector provision of the Age Discrimination in Employment Act of 1967, which provides that personnel actions affecting agency employees aged 40 years or older shall be made free from any ‘discrimination based on age,’ 29 U. S. C. §633a(a), requires a plaintiff to prove that age was a but-for cause of the challenged personnel action.”