This week, in Babb v. Wilkie, the U.S. Supreme Court held in an 8-1 decision (Justice Thomas dissenting) that federal employees can sue for age discrimination if any part of a personnel action was tainted by age bias, even if age was not the “but-for” cause of the personnel decision. This is a lower burden for federal employees compared to the standard applied to private-sector employees bringing age discrimination claims. 

The Age Discrimination in Employment Act (“ADEA”) is a federal law that protects workers 40 years of age or older from age-based discrimination from as early as the application process all the way through termination. Thus, an employer cannot fire, refuse to hire, or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of their age. 

The ADEA is applicable to employers with 20 or more employees, including state and local governments. The ADEA contains a separate provision applicable to federal employees, section 633a(a), and the different treatment of that provision was highlighted in the Supreme Court’s decision in Babb. 

In Babb v. Wilkie, Noris Babb was an employee with the U.S. Department of Veteran Affairs.  She claimed that she had been subjected to personnel actions that involved age discrimination. The ADEA provision at issue states in relevant part: “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.” 

Generally, cases under the ADEA require the employee to show that age is the “but-for” cause of an employment decision; that is, the employer is liable only if the employment decision would not have occurred but for the employee’s age. 

In Babb, the federal employer argued that even if age played a part in the employment decision, the federal employer cannot be liable unless the employee or applicant can show that the decision would have been favorable to them if age had not been taken into account. The Supreme Court decided that while age must be the but-for cause of the discrimination, age did not necessarily have to be the but-for cause of the personnel action itself.

To illustrate, the Court gave this example. There are two employees up for promotion – 35-year-old Employee A and 55-year-old Employee B. The employer’s promotion policy gives numerical scores based on non-discriminatory factors. Then, candidates over 40 years of age are docked 5 points—a discriminatory factor. Employee A’s score, based on non-discriminatory factors, is 90, and Employee B’s score is 85. Then, Employee B is docked 5 points because of his age and ends up with a final score of 80. Employee A is promoted based on the final scores.  

Even if Employee B had not been docked the 5 points, Employee A would have been promoted anyway. Thus, the discriminatory practice of docking 5 points was not the but-for reason that Employee B was not promoted.  

However, as the Court points out, the promotion decision was not made “free from any discrimination based on age” because the discriminatory practice was there. For federal employees, this would still be a violation of the ADEA. Thus, even if Employee B would not have been promoted anyway, the federal employer would still be liable for age discrimination. In these kinds of situations, employees may not be entitled to damages, such as back pay or compensatory damages, but employees may be entitled to forward-looking relief, such as an order precluding the employer from using the discriminatory process in future personnel actions. 

Justice Alito explained that holding the federal government to a higher standard than private employers, state and local governments was not unusual. When the ADEA was first enacted in 1967, the prohibition against age discrimination applied only to private employers. Congress, in 1974, then expanded the scope of the ADEA to include federal, state, and local governments. For state and local governments, Congress simply added them to the definition of “employer” in the ADEA’s private-sector provision. For the federal government, Congress deliberately chose to enact a separate provision, with the specific directive that personnel actions taken by the federal government “shall be made free from any discrimination based on age.”

In summary, federal employers may be liable for discrimination if age was considered in any part of a personnel action, even if age discrimination was not the but-for cause of the final personnel action. 

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