On April 6, 2020, the United States Supreme Court held in Babb v. Wilkie that the Age Discrimination in Employment Act (“the ADEA”), provides heightened protections for federal employees.
The Court has made clear in recent decisions that the ADEA prohibits employment decisions against employees of private companies that are “because of” discrimination. The phrase “because of” means that age was the “but for” reason for the decision.
The language of the ADEA is different for federal workers, however. The ADEA states that, for federal works only, “All personnel actions affecting employees or applicants for employment who are at least 40 years of age. . .shall be made free from any discrimination based on age.”
In Babb, the Court noted that the language stating that personnel actions “shall be made free” is broader than it is for employees of private companies. However, since the statute still requires that the discrimination be “based on age,” the Court held that a federal employee must still show that age was the “but for” cause of the discrimination, even if age was not necessarily the “but for” cause of the employment action.
The net result is that Babb requires courts to examine how a personnel action was made, to ensure that it was “not tainted by differential treatment based on age.” The question is not so much what the ultimate action was, but whether or not age impacted how the decision to arrive at that action was made.
The real impact of Babb is on how it affects the remedies available to federal employees. If federal employee can show that age played a role in how a decision was made, but may not have been the “but for” reason for the action, a federal employee can still recover such as injunctive or “forward-looking” relief. To obtain traditional remedies such as back-pay and compensatory damages,, a federal employee must still show that age was the “but for” reason for the adverse action.
While it remains to be seen how Babb will affect the analysis of ADEA claims for federal employees, what seems clear is that the “but for” standard remains the standard to obtain traditional money damages.