Babb v. Wilkie: Causation in Federal Sector Age Discrimination

In Babb v. Wilkie, Secretary of Veteran Affairs, No. 18-882, ___ U.S. ___ (Apr. 6, 2020), the Supreme Court held that the federal-sector provision of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 633a(a), demands that personnel actions be untainted by any consideration of age. This means that a federal sector employee can prevail on an age discrimination claim without proving but-for causation. However, the presence or absence of but-for causation is important in determining the available remedies.

Facts

Babb was a federal employee, a pharmacist, at a U.S. Department of Veterans Affairs Medical Center (the “VA”). Babb sued the VA for, inter alia, age discrimination in various adverse personnel actions. The VA offered various alleged nondiscriminatory reasons for the actions. The District Court granted the VA’s summary judgment motion after finding Babb had established a prima facie case, that the VA had proffered legitimate reasons for the challenged actions, and that no jury could reasonably conclude that those reasons were pretextual.

Babb appealed. She argued the District Court’s requirement that age be a but-for cause of a personnel action was inappropriate under the ADEA’s federal-sector provision. Because that section requires most federal-sector “personnel actions” affecting individuals aged 40 and older be made “free from any discrimination based on age,” Babb argued such a personnel action is unlawful if age is a factor in the challenged decision — even if many other factors having nothing to do with age were also factors. Under Babb’s reading of the ADEA, therefore, even if the VA’s proffered reasons in her case were not pretextual, the VA still violated the ADEA if age discrimination played any part at all in the decision. The Eleventh Circuit rejected that argument, citing binding circuit precedent, and Babb appealed again.

The Court’s Decision

The Supreme Court reversed. It held that the plain meaning of § 633a(a) demands that personnel actions be “untainted by any consideration of age.” However, the Court further explained that for an employee to obtain reinstatement, damages, or other relief related to the end result of an employment decision, the employee needed to show but-for causation — that is, that a personnel action would have been different if age had not been taken into account. If age discrimination played a lesser role in the decision, other remedies, like injunctions or other forward-looking relief, may be appropriate.

In short, the VA argued that the ADEA’s federal-sector provision imposes liability only when age is a but-for cause of an employment decision, while Babb argued that it prohibits any adverse consideration of age in the decision-making process. The Court sided with Babb, holding that the plain meaning of the statutory text shows that age need not be a but-for cause of an employment decision in order for there to be a violation. No. 18-882 at 4–7.

First, the Court did a close reading of the statutory language:

All personnel actions affecting employees or applicants … who are at least 40 … shall be made free from any discrimination based on age.

29 U.S.C. § 633a(a)

The Court noted the phrase “free from” means “untainted,” and the word “any” underscores the broad scope of that phrase. The Court had previously held that the normal definition of “discrimination” is “differential treatment.” Jackson v. Birmingham Bd. of Ed., 544 U.S. 167, 174 (2005). And “[i]n common talk, the phrase ‘based on’ indicates a but-for causal relationship[.]’” Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 63 (2007). The “shall be made” phrase denotes a duty, “emphasizing the importance of avoiding the taint.” No. 18-882 at 4–5.

The Court then determined that the statutory language indicated age must be a but-for cause of the discrimination alleged, but not of the challenged personnel action.

The Court grounded its reasoning in two aspects of the statute’s syntax. First, it observed that the adjectival phrase “based on age” modifies the noun “discrimination,” not the phrase “personnel actions.” Thus, age must be a but-for cause of discrimination but not the personnel action itself. Second, the adverbial phrase “free from any discrimination” modifies the verb “made” and describes how a personnel action must be “made”: in a way that is not tainted by any differential treatment based on age. Id.

The Court therefore determined the plain meaning of § 633a(a) is that the statute does not require proof of but-for causation — that an employment decision would have turned out differently if age had not been taken into account. Instead, a federal employer violates the statute if it makes age a factor in an employment decision. The Court rejected the VA’s argument, based on the various meanings of particular words, that the statutory text requires more than a federal employer’s “mere consideration” of age in personnel decisions. Id. at 5–7.

Second, the Court rejected the VA’s primary argument, that this “mere consideration” interpretation was undermined by the Court’s decisions interpreting other employment and consumer protection laws as requiring but-for causation. See Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) (ADEA’s private-sector provision, 29 U.S.C. §623(a)(1)); University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338 (2013) (Title VII’s anti-retaliation provision, 42 U.S.C. §2000e–3(a)); Safeco Ins. Co. of America, 551 U.S. 47 (2007) (Fair Credit Reporting Act, 15 U.S.C. §1681m(a)).

The Court observed that because the language of § 633a(a) (“free from any discrimination based on age”) is markedly different than the language of those other statutes, those cases are perfectly consistent with the Court’s interpretation of the federal-sector ADEA provision. Nor did the traditional rule favoring but-for causation change the result. While § 633a(a) does requires proof of but-for causation, it requires that proof only for the “discrimination,” not for the personnel action. No. 18-882 at 8-11.

Third, the Court observed that it was not “anomalous” to hold the Federal Government to a higher standard than private employers or state and local governments when it comes to age discrimination. This difference is supported by the ADEA’s legislative history. Specifically, when Congress expanded the ADEA’s scope beyond private employers, it added state and local governments to the private-sector provision’s definition of “employers.” But Congress “deliberately prescribed a distinct statutory scheme applicable only to the federal sector,” Lehman v. Nakshian, 453 U.S. 156, 166 (1981), and that federal scheme did away with the private sector provision language. Because the statute’s words are unambiguous, the Court’s job was complete. It would be beyond the Court’s power to second-guess the legislature’s chosen language. No. 18-882 at 11–13.

Finally, after all that, the Court determined that in federal sector ADEA cases but-for causation is nevertheless important in determining the appropriate remedy. The Court concluded for an employee to obtain compensatory damages or other forms of relief related to the end result of an employment decision, the employee must without show that age discrimination was a but-for cause of the employment outcome. The Court observed that this conclusion is supported by basic principles of redress long employed by the Court, as in, for example, Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 103 (1998), and by traditional principles of tort and remedies law. Remedies must be tailored to the injury. Therefore, the Court reasoned, it would not be appropriate to award lost wages or reinstatement to an employee who cannot show age discrimination was a but-for cause of her termination (or other challenged employment decision), since that would mean she would have been terminated even in the absence of any age discrimination. Still, some remedies may be available. Consistent with traditional remedies principles, the Court observed that federal employees who show that age was a but-for cause of differential treatment in an employment decision, but not a but-for cause of the decision itself, can still seek injunctive or other forward-looking relief. No. 18-882 at 13–14.

Analysis

In sum, the Babb Court held that the ADEA’s federal-sector provision demands that personnel actions be untainted by any consideration of age. This means that a federal sector employee can prevail on an age discrimination claim without proving but-for causation. However, the presence or absence of but-for causation is important in determining the available remedies. In the absence of but-for causation, the only available remedies may be injunctive or other forward-looking relief.

This article was also published to TimCoffieldAttorney.com.

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