Issues
To prove a violation of the federal-sector provision of the Age Discrimination in Employment Act, must a plaintiff prove that age discrimination was a but-for cause of an adverse employment action or merely a motivating factor?
This case asks the Supreme Court to determine whether, under Section 633a(a) of the Age Discrimination in Employment Act of 1967 (“ADEA”), federal-sector plaintiffs must show that age discrimination was the but-for cause of an adverse employment action, or whether federal-sector plaintiffs must merely show that their age was a motivating factor for the adverse action. Section 633a(a) states that employment decisions affecting employees or applicants at least 40 years of age “shall be made free from any discrimination based on age.” Noris Babb, a clinical pharmacist, sued Secretary of the Department of Veterans Affairs (“VA”) Robert Wilkie alleging, among other claims, age and gender discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and the ADEA after she was denied a promotion, training, and two clinic positions. Babb argues that Section 633a(a) requires her only to prove that age was a motivating factor in the VA’s adverse personnel decisions. Wilkie, on the other hand, contends that Section 633a(a) requires Babb to prove that age was the but-for cause of—that is, the actual reason for—the employment decisions. This case has implications on the ability of federal-sector workers to prove age discrimination claims under the ADEA.
Questions as Framed for the Court by the Parties
Whether the federal-sector provision of the Age Discrimination in Employment Act of 1967, which provides that personnel actions affecting agency employees aged 40 years or older shall be made free from any “discrimination based on age,” 29 U.S.C. § 633a(a), requires a plaintiff to prove that age was a but-for cause of the challenged personnel action.
Facts
In 2004, Noris Babb joined the C.W. “Bill” Young Veterans Affairs (“VA”) Medical Center’s Pharmacy Services division in Bay Pines, Florida as a clinical pharmacist. Babb v. Wilkie at 2–3. Two years later, Babb began working as a geriatrics pharmacist in the Medical Center’s Geriatric Clinic, a position governed by a service agreement between the Pharmacy Services division and the Geriatric Clinic. Id. at 3. As a member of an interdisciplinary team within the Geriatric Clinic, Babb acquired in 2009 an “advanced scope of practice” that allowed her to practice “disease state management” (“DSM”). Id. at 4. In 2010, Babb pursued a promotion under a new nationwide VA initiative called the “Patient Aligned Care Team” (“PACT”) initiative, which enabled pharmacists spending a minimum of 25 percent of their time practicing DSM to seek a promotion to GS-13 on the federal pay scale. Id.
In 2011, two of Babb’s colleagues, both female and over the age of 40, filed Equal Employment Opportunity complaints with the Equal Employment Opportunity Commission (EEOC) against the VA, alleging that the Medical Center’s Pharmacy Services division implemented the new PACT initiative promotion standards in a way that discriminated on the basis of gender and age. Id. Then, in 2012, the Pharmacy Services division and the Geriatric Clinic issued a new service agreement governing Babb’s responsibilities. Id. at 5. Under the new agreement, Babb could only spend at most 18.75 percent of her time practicing DSM. Id. at 6. Because Babb could no longer meet the DSM practice requirement necessary for promotion under the PACT initiative, the Pharmacy Services division and the Geriatric Clinic agreed that Babb would not practice DSM at all. Id. Pharmacy Services management then also removed Babb’s “advanced scope of practice” designation. Id.
Babb complained to a Pharmacy Services administrator in February 2013 about the decision to no longer have her practice DSM. Id. at 5. Around the same time, the Pharmacy Services division rejected two requests by Babb for anticoagulation training. Id. at 6–7. Later, in April 2013, Babb applied for two open anticoagulation-clinic positions; however, two younger female pharmacists received the positions instead. Id. at 7. Upon finding out that she had not been selected for either anticoagulation-clinic position, Babb filed her own EEOC complaint in May 2013 alleging age and gender discrimination. Id. at 8.
In July 2014, Babb sued Secretary of the Department of Veteran Affairs Robert Wilkie in federal district court, claiming that the Pharmacy Services managers violated Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Age Discrimination in Employment Act of 1967 (“ADEA”) by subjecting her to age and gender discrimination, among other claims. Id. at 9. The United States District Court for the Middle District of Florida (the “District Court”) analyzed Babb’s age and gender-discrimination under the McDonnell Douglas burden-shifting framework. Id. at 10. Under this framework, a plaintiff must first establish a prima facie case of discrimination, after which the burden shifts to the defendant-employer to articulate a “legitimate, nondiscriminatory” reason for its action. See id. The plaintiff must then prove that the employer’s articulated nondiscriminatory reason is pretextual by showing that discrimination was the actual reason for, or “but-for” cause of, the adverse employment action. See id. Applying this framework, the District Court granted summary judgment in Wilkie’s favor. Id.
Babb appealed the District Court’s ruling to the United States Court of Appeals for the Eleventh Circuit (the “Eleventh Circuit”), contending that the District Court should have applied a less-stringent motivating-factor test to her claims. Id. at 10–12. Under this test, a plaintiff must simply demonstrate that that age or gender was a “motivating factor” of an adverse employment action he or she suffered. Id. at 11. While the Eleventh Circuit agreed with Babb that the motivating-factor test should have been used for her Title VII claim, the court affirmed the use of the McDonnell Douglas framework for her federal-sector ADEA claim. Id. at 10, 14.
On June 28, 2019, the United States Supreme Court granted Babb’s petition for a writ of certiorari to determine the proper causation standard under the federal-sector provision of the ADEA. See Brief for Respondent, Robert Wilkie, Secretary of Veterans Affairs at 1.
Analysis
THE PROPER READING OF THE STATUTE’S PLAIN LANGUAGE
Babb argues that the Supreme Court should reverse the Eleventh Circuit’s decision because, according to her, the plain language of the federal-sector provision of the ADEA, Section 633a(a), fully prohibits the government from unequally considering age in employment decisions. Brief for Petitioner, Noris Babb at 22. As such, Babb asserts that the statute only requires a federal-sector plaintiff to show that the government’s decision-making process involved age discrimination—not that age discrimination was the but-for cause of an adverse employment decision. Id. Babb notes that the statute requires the government to make employment decisions “‘free from any’ age discrimination.” Id. Babb contends that the words “free from” and “any” in Section 633a(a) make unlawful even the most minimal amount of age discrimination in the federal decision-making process. Id. at 23–24. Babb also maintains that the word “discrimination” broadly refers to the failure to provide equal treatment, regardless of whether the unequal treatment is the cause of a negative outcome. Id. at 24. Furthermore, Babb posits that the phrase “discrimination based on age” merely expresses the type of discrimination barred under the statute, and that the phrase is synonymous with “age discrimination.” Id. at 27.
Moreover, Babb contends that former Supreme Court cases support her argument regarding the plain meaning of Section 633a(a). Brief for Petitioner at 25. Babb emphasizes that the Court has held that “discrimination” encompasses a broad range of deliberate unequal treatment that includes not only losing a benefit, but also being denied fair and equal consideration for that benefit because of a protected status. Id. at 25–26. Thus, Babb asserts that the Court has recognized that unlawful discrimination can occur even where it does not cause the rejection of a particular benefit. Id. at 26. Finally, Babb maintains that the Court has applied this definition of discrimination in numerous cases spanning decades of precedent. Id.
Wilkie counters that the Court should uphold the Eleventh Circuit’s decision because, according to him, Section 633a(a)’s plain language forbidding discrimination “based on age” clearly requires but-for causation. Brief for Respondent, Robert Wilkie, Secretary of Veteran Affairs at 16. Wilkie argues that the Court has repeatedly held that the phrase “based on” means “because of,” which in turn implies but-for causation. Id. Thus, Wilkie asserts that Section 633a(a)’s ban on “discrimination based on age” is only applicable in federal-sector cases where age is the reason for the adverse employment decision. Id. Wilkie further emphasizes that the standard definition of discrimination is different treatment of employees who are similar except for a particular status. Id. at 17. Wilkie concludes, therefore, that an employer must do more than simply consider age in an employment decision to unlawfully discriminate based on age; rather, age must cause the employer to treat an employee less favorably than a younger, similarly-situated employee. Id.
Wilkie further asserts that the Supreme Court’s prior cases clarify that the ADEA’s ban on discrimination based on age requires that age be the but-for cause of an adverse employment outcome. Id. at 18. In Safeco Insurance Co. v. Barr, Wilkie notes, the Court held that the phrase “based on” implies but-for causation because that is the most common understanding of the phrase. Id. at 19. Thus, Wilkie posits that if Congress wanted to bar federal employers from considering age at all in employment decisions, it would have said so explicitly. Id. Wilkie also emphasizes that the Court held in Gross v. FBL Financial Services that the private-sector provision of the ADEA, which uses the phrase “because of,” requires but-for causation. Id. at 20. Wilkie argues that both the private-sector and federal-sector provisions require but-for causation because both contain language—either “because of” or “based on”—that indicates a but-for causation standard. Id. at 20–21.
COMPARING THE ADEA’S FEDERAL-SECTOR PROVISION TO TITLE VII’S
Babb argues that Section 633a(a) of the ADEA uses language practically identical to that of the federal-sector provision of Title VII. Brief for Petitioner at 29. Accordingly, Babb contends that the Supreme Court should conclude that Congress intended the text of the federal-sector provisions of the two statutes to mean the same thing. Id. at 30. Babb asserts that Title VII’s federal-sector provision was partially intended to enforce the Constitution’s equal-protection guarantee for federal employees. Id. Babb emphasizes that a plaintiff does not need to prove but-for causation to demonstrate a violation of the Constitution’s Equal Protection Clause. Id. at 32–33. Instead, according to Babb, a plaintiff just needs to prove that they were denied “equal footing” in the government’s decision-making process based on a protected status. Id. Because Title VII’s federal-sector provision is linked to the Constitution’s guarantee of equal protection, Babb maintains that it incorporates the “equal footing” standard. Id. at 33. Accordingly, Babb concludes that Section 633a(a) also incorporates that standard. Id.
Additionally, Babb asserts that Congress intended to strengthen the federal government’s earlier endeavors to prohibit discrimination in federal employment with Title VII’s federal-sector provision. Id. at 33. Babb alleges that Title VII’s federal-sector provision was both a codification of prior Executive Orders that addressed discrimination in the federal government and a method to enforce the Civil Rights Act’s guarantee of equal employment opportunities for federal workers. Id. According to Babb, the Executive Orders that Congress sought to codify “emphasized that discrimination could play no role whatsoever in federal employment decisions.” Id. at 35. As such, Babb contends that those Executive Orders cannot be interpreted as allowing discrimination that is not the but-for cause of an adverse employment decision. Id. Babb thus maintains that because Title VII’s federal-sector provision codified those Executive Orders, it should be read to ban all discrimination in the federal employment decision-making process. Id. at 36. And, Babb concludes, because Section 633a(a) of the ADEA was meant to mirror Title VII’s federal-sector provision, it too bans all age discrimination in the federal employment decision-making process. Id.
Wilkie counters that the causation standard of Section 633a(a) is governed by the text of the ADEA, not the Constitution’s Equal Protection Clause. Brief for Respondent at 35. Nonetheless, Wilkie asserts that even if equal protection principles provide the causation standard, the Equal Protection Clause still mandates a but-for causation standard in the relevant circumstances. Id. As Wilkie notes, the private-sector provision of the ADEA governs state and local governments, which undoubtedly requires but-for causation, as the Court established in Gross. Id. at 35–36. Wilkie contends that even if Babb is correct about Congress’ equal protection concerns, Babb has failed to provide a reason to assume that Congress sought to apply a different causation standard to the federal government. Id. at 36.
Furthermore, Wilkie argues that the prior Executive Orders Babb invokes do not require a lower causation standard because each Executive Order used the phrase “because of”—indicating but-for causation—when barring types of discrimination. Id. at 38. Likewise, Wilkie notes that many of the Executive Orders explicitly stated that they were addressing the problem of workers being barred from federal employment “‘solely because of’ considerations like race or age.” Id. at 39. Moreover, Wilkie emphasizes that the Executive Orders invoked by Babb have never been interpreted to apply a causation standard lower than but-for causation. Id. Finally, Wilkie disputes that Congress codified anti-discrimination principles from the Executive Orders in Title VII or the ADEA because, according to Wilkie, the Executive Orders instead reflect the merit system of federal employment contained in the civil service laws. Id. at 40. Nonetheless, Wilkie asserts that the causation standard under the Executive Orders is irrelevant to the Court’s decision because the Executive Orders are Executive Branch policy, not federal anti-discrimination law. Id. Therefore, Wilkie concludes, an Executive Order requiring a lower causation standard does not imply that Congress intended to impose that same standard under Title VII or the ADEA. Id. at 41.
WHETHER CHEVRON DEFERENCE APPLIES TO EEOC INTERPRETATIONS
Babb argues that, if the Supreme Court finds the ADEA’s federal-sector provision ambiguous as to its causation standard, the Court should defer to the EEOC’s interpretation that but-for causation is not required to prove a violation of Section 633a(a). Brief for Petitioner at 40. Babb notes that the ADEA gives the EEOC the authority to enforce Section 633a(a) and to issue rules and regulations to carry out that enforcement. Id. Therefore, Babb contends, the EEOC’s interpretation is entitled to Chevron deference, a legal principle under which courts defer to an agency’s interpretation of an ambiguous statutory provision if the agency’s interpretation is reasonable. See id. at 40–41. Babb asserts that the EEOC has reasonably interpreted Section 633a(a) not to require but-for causation to demonstrate unlawful age discrimination under the provision. Id. at 41. Moreover, Babb maintains, the EEOC has issued regulations that expressly provide a remedy in the absence of but-for causation and adjudicatory decisions declaring that but-for causation is not required under Section 633a(a). Id. Thus, Babb concludes that, at minimum, the Court must apply Chevron deference to the EEOC’s reasonable interpretation that but-for causation is not required to prove a violation of ADEA’s Section 633a(a). Id. at 42.
Wilkie disputes that the Court should defer to the EEOC’s interpretation because Section 633a(a)’s text clearly invokes a but-for causation standard, thus making the EEOC’s regulations irrelevant, even if they purport to define the federal-sector causation standard. Brief for Respondent at 45. Even if Section 633a(a) was ambiguous as to the causation standard, Wilkie argues that the EEOC regulations Babb relies on address relief, not the determination of liability. See id. at 45–47. Wilkie further emphasizes that the EEOC removed any direct relief for individual plaintiffs in cases where age discrimination was not the but-for cause of an adverse federal employment decision, thus suggesting that a plaintiff could not prevail under the ADEA without proof of but-for causation. Id. at 47–48. Finally, Wilkie asserts that even if the regulations are relevant to the determination of liability under Section 633a(a), they are inconsistent with the standard Babb proposes. Id. at 48. According to Wilkie, the regulations impose a burden-shifting scheme that requires the government to rebut but-for causation under a clear-and-convincing evidence standard. Id. Therefore, Wilkie concludes, deference to the EEOC regulations would actually make it harder for federal-sector plaintiffs to obtain relief than under Babb’s suggested standard. Id. at 48–49.
Discussion
THE ABILITY OF FEDERAL-SECTOR EMPLOYEES TO PROVE AGE DISCRIMINATION
The National Treasury Employees Union (“NTEU”), in support of Babb, alleges that applying a but-for causation standard to federal-sector ADEA claims would lead to age-discrimination by the federal government going unremedied. Brief of Amicus Curiae National Treasury Employees Union, in Support of Petitioner at 5. The NTEU asserts that this is because a but-for causation standard will create a harsh evidentiary hurdle for federal employees, requiring plaintiffs to produce a “smoking gun” or admission by their federal employer to show that age discrimination was a but-for cause of an adverse employment action. Id. at 6. Further, the NTEU predicts that applying a but-for causation standard to federal-sector ADEA claims will embolden agencies to resist age discrimination allegations, knowing full well that federal employees will have a hard time meeting the standard. Id. Babb likewise asserts that applying a but-for causation standard will also dissuade federal employees from challenging unlawful discriminatory employment practices. Reply Brief for Petitioner, Noris Babb at 22–23. Babb further argues that a standard prohibiting the federal government from considering age in employment decisions would result in appropriate findings of liability under Section 633a(a) consistent with the merit-based principles the federal government traditionally relies on. Id. at 22. Lastly, Babb contends that a successful federal-sector ADEA plaintiff will not be entitled to a windfall under an age-consideration standard. Id. at 23. Instead, Babb maintains, successful federal-sector ADEA plaintiffs will only be entitled to relief appropriate in relation to the evidence adduced at trial. Id. Thus, according to Babb, reinstatement and back pay might only be available where but-for causation is demonstrated, yet other forms of ADEA relief—such as injunctive relief—will be available. Id.
Wilkie counters that failing to apply a but-for causation standard under Section 633a(a) would create inconsistencies between the ADEA and other federal anti-discrimination laws. Brief for Respondent at 50. First, Wilkie notes that Babb proposes a causation standard possibly lower than a traditional motivating-factor standard based on Babb’s insistence that Section 633a(a) of the ADEA prohibits the federal government from even considering a worker’s age when making employment decisions. Id. at 50–51. Wilkie further asserts that if Babb is correct that Section 633a(a) does not require but-for causation to determine liability, then there is no reason that it would require but-for causation for remedies. Id. at 51. As such, Wilkie contends that if Babb’s standard is implemented, federal-sector ADEA plaintiffs could obtain relief, including reinstatement and back pay, based on a showing that the plaintiff’s federal employer merely considered the plaintiff’s age at all. Id. at 52. Wilkie argues that such a result is anomalous considering that, to the extent the private and federal-sector provisions of the ADEA differ, the federal-sector provision is generally more restrictive on federal employees’ rights. Id. Lastly, Wilkie asserts that applying a but-for causation standard to federal-sector ADEA claims would equalize the protection of federal employees with state, local, and private employees in the absence of express statutory language to the contrary. Id. at 53.
Written by
Edited by
Acknowledgments
The authors would like to thank Professor Angela B. Cornell for her guidance and insights into this case.
Additional Resources
- Rachel Alpert, Babb v. Wilkie and the Future Viability of Statutory Discrimination Claims, Harvard Civil Rights-Civil Liberties Law Review (Oct. 5, 2019).
- Erich Wagner, Trump Administration Urges Supreme Court to Maintain Strict Burden of Proof for Age Discrimination Cases, Government Executive (Nov. 25, 2019).
- Pamela Wolf, Supreme Court to Determine Whether ‘But-For’ Causation Required in Federal-Sector ADEA Claims, Employment Law Daily (2019).