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“Ok, Boomer?” Not Okay – Supreme Court Says Federal Workers Can Sue Over ANY Age Related Adverse Employment Action

In January 2020, in a case pending before the United States Supreme Court, Babb v. Wilkie, Chief Justice John Roberts posed the question to plaintiff’s counsel, if asking “OK, Boomer?” just once during the hiring process amounts to age discrimination.  Justice Roberts wanted to know whether age needs to be the only reason for the adverse employment action or if it is enough to just be a factor (To read Brody and Associates previous article on this case click here).

We now have the answer.

Earlier this month, the Supreme Court held the federal (public) sector provision of the Age Discrimination in Employment Act (the “ADEA”) allows federal employees to sue over ANY age bias that presents itself in an adverse employment action.  This ruling goes far beyond the prior rule requiring age bias be the determining factor in an adverse action.  In its ruling, the Supreme Court made clear to distinguish between federal and private sector employees.

The Babb’s decision marks a significant shift from current law.  Previously, the standard for a federal employee to prevail on a federal age discrimination claim required proof the adverse action was a direct result of the employee’s age.  Proving the direct causation amounted to a herculean task for most plaintiff’s.

In the majority opinion, Justice Samuel Alito, Jr. wrote that the “plain meaning” of Section 633a(a) of the ADEA states employment actions affecting federal employees “shall be made free from any discrimination based on age” and “that personnel actions be untainted by any consideration of age.”  Justice Alito went on to write, “the statute does not require proof that an employment decision would have turned out differently if age had not been taken into account.”

As to the differentiation between federal (public) and private sector employees, the Supreme Court’s position is the ADEA’s provisions for private and public sector employees have different terms and it is reasonable to “hold the federal government to a stricter standard than private employers or state and local governments.”  Further, the Supreme Court went on to acknowledge the ADEA requires private sector plaintiffs to show age was the “but-for” cause of an employment action.

The Court remanded Babb’s case back to the district court for further proceedings without ruling on the merits of the case under the new standard.  Justice Clarence Thomas was the sole dissent.

As we wrote previously, the Supreme Court’s decision in Babb may be moot if the still pending Protecting Older Workers Against Discrimination Act (“POWADA”) is signed into law as the effect of this new ruling would statutorily apply to all employers.  After receiving bi-partisan approval earlier this year from the House of Representatives, POWADA is currently in the Senate at Committee.  If the bill becomes law, it would permit all plaintiffs (in both the public and private sectors) to sue employers for age discrimination even if age was not the sole factor for the adverse employment action.  The bill has an uphill battle in the Senate, but would be a tectonic shift for employers and employees alike if it is becomes law.

Brody and Associates will continue to monitor the practical impact of the Supreme Court’s decision in Babb and the progress of POWADA.

Brody and Associates regularly provides training and counseling on maintaining a harassment free environment and on employment law issues in general. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560. 

Additionally, if this article generated any additional questions for you, please contact us at info@brodyandassociates.com.  We may address your question in a future blog post.