Supreme Court Bans Any Age Considerations in Federal Personnel Decisions

In an 8-1 decision last week, the Supreme Court ruled that age cannot lawfully play any part in federal-sector personnel actions against employees over 40.  The Court’s decision overturned a ruling by the 11th Circuit that had applied a higher standard for age discrimination claims brought against the federal government under the Age Discrimination in Employment Act of 1967 (ADEA).

The case – Babb v. Wilkie, Secretary of Veterans Affairs, No. 18-882 (Apr. 6, 2020) – was brought by Dr. Noris Babb, a clinical pharmacist at the Department of Veteran Affairs (VA), for alleged age discrimination in various adverse personnel actions against her.  Prior to reaching the Supreme Court, Babb’s claims had twice been dismissed.  On first review in the Middle District of Florida, though Babb had established a prima facie case of age discrimination, the court granted summary judgement against her because the VA proffered other legitimate reasons for the allegedly discriminatory actions that “no jury could reasonably conclude [to be] pretextual.”

On appeal in the 11th Circuit, Babb argued that the District Court was wrong to apply a “but-for” standard – requiring proof that the personnel actions against her would not have happened if she were under 40 – for her ADEA age discrimination claim, as the federal-sector provision of the ADEA requires “personnel actions” affecting individuals over 40 to be “free from any discrimination based on age.”  29 U. S. C. § 633a(a).  Thus, Babb contended, federal-sector personnel actions against employees above age 40 are unlawful if age plays any part, even if an employer proffers other legitimate reasons for the actions.  The 11th Circuit rejected this argument due to precedent.

The Supreme Court overruled the 11th Circuit’s in a near-unanimous decision that left no doubt as to the role of age in federal personnel actions.  Writing for the majority, Justice Samuel Alito noted that “the plain meaning of [the ADEA] demands that [such] actions be untainted by any consideration of age.” Simply put, “if age is a factor in an employment decision, the statute has been violated.”

The Babb decision could be a boon to older federal workers, who will now be able to contest personnel actions in which their age plays even a small part.  However, the Court’s ruling still does not allow for “reinstatement, damages, or other relief related to the end result of an employment decision” unless a federal employee’s age was a “but-for” cause of the decision.  If age was a lesser factor, only “other remedies may be appropriate,” including “injunctive or other forward-looking relief.”  As the Court declined to specify what these “other remedies” might be, it remains to be seen whether older federal workers will actually benefit from the decision.