Wed, 04/08/2020
The Age Discrimination in Employment Act of 1967 (ADEA) protects certain applicants and employees who are 40 years of age and older from discrimination based on age in hiring, promotion, discharge, compensation, or terms, conditions, or privileges of employment. 29 U.S.C. § 623, and § 633a (federal employees). Specifically, the statute provides that federal agencies’ “personnel actions affecting employees … who are at least 40 years of age … shall be made free from any discrimination based on age.” 29 U.S.C. § 633a.
The question raised in Babb v. Wilkie, decided by the U.S. Supreme Court on April 6, 2020, was whether a plaintiff must prove that the federal government’s decision concerning their employment would have been different “but for” age-based discrimination, or whether the federal government is liable for age discrimination any time it considers an older worker’s age (that is, whether the employee’s age was a “motivating factor” in the employment decision). This dispute arose after the Supreme Court’s decision in Gross v. FBL Financial Services, where the Court held that the ADEA’s private-sector provisions require a plaintiff to demonstrate that their employer’s decision concerning employment would have been different “but for” age-based discrimination. The applicable language, which provides that it is unlawful for an employer to make an employment decision “because of such individual’s age,” is different than the language that applies to federal sector employees.
The Court’s decision concluded that federal workers must prove only that an employer improperly considered an employee’s age when it decided to take an employment action, making it easier for federal workers to prevail on age discrimination claims. 2020 BL 127048 (U.S. Apr. 6, 2020). Pursuant to the Court’s decision, a federal worker need only show that age was a motivating factor for an employer’s decision to take an action. Specifically, the Court said that the ADEA “demands that [federal] personnel actions be untainted by any consideration of age.” (emphasis added).
The Court noted, however, that “but for” motivation is an important factor in determining available relief to the wronged plaintiff. Even if federal workers meet the loosened standard, they may not be entitled to the same remedies as if they could show the higher “but for” standard. Where federal workers can show that they were subjected to unequal consideration in an employment action because of their age, they are entitled to injunctive or other “forward-looking” relief, but not reinstatement, backpay, compensatory damages, or other forms of relief related to meeting the higher standard. It will be up to the courts going forward to define what forms injunctive and other forward-looking relief will take for workers.
If you believe your employer has relied on your age in making an employment decision, please contact MSE at info@mselaborlaw.com
