Wednesday, April 15, 2020

SCOTUS: Federal employee ADEA claims and a newfangled "but for"-ish standard

Nice try SCOTUS! Thought you could slip one by me in the midst of a pandemic, did ya? Last week, the Supreme Court issued an opinion in Babb v. Wilkie.

Of course, we all know that after Gross v. FBL, ADEA claims require a showing that age was the "but for" cause of the adverse employment action . . . in the private sector. But, what about the separate federal sector ADEA provisions?
The plain meaning of the critical statutory language (“made free from any discrimination based on age”) demands that personnel actions be untainted by any consideration of age. This does not mean that a plaintiff may obtain all forms of relief that are generally available for a violation of §633a(a), including hiring, reinstatement, backpay, and compensatory damages, without showing that a personnel action would have been different if age had not been taken into account. To obtain such relief, a plaintiff must show that age was a but-for cause of the challenged employment decision. But if age discrimination played a lesser part in the decision, other remedies may be appropriate.
Well, that seems uhhh, unnecessarily convoluted? What are the "other remedies" that require something less than "but for" causation? The Court vaguely alludes to "injunctive or other forward-looking relief" - in the context of age being the but for cause of disparate treatment in an employment decision, even if it was not the but for cause of the decision itself.

This will probably help some claims crawl over the dismissal and summary judgment hurdles - but will have limited impact because it is limited to federal employee ADEA claims, and primarily just opens the door to some equitable remedies without a "but for" showing.

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