Federal Employee’s Burden of Proof to Prove Age Discrimination Is Less Strict Now

An April 6, 2020-dated Supreme Court of the United States (SCOTUS) decision lessens the burden on a federal employee to prove age discrimination in his or her employment. In Babb v. Wilkie, Secretary of Veterans Affairs, the Justices held that the plain meaning of the statute that prohibits discrimination against federal employee demands that personnel actions be untainted by any consideration of age. The importance of this decision is that to obtain some remedy the federal employee may prove age was a factor, not the only factor, in the personnel decision. The private sector employee is subject to a different statute. To get any remedy, the private sector employee has a stricter standard of proof to show that age was the reason for the personnel action.
On what remedy the federal employee may obtain, however, SCOTUS held that the “but for” age discrimination burden of proof applied. SCOTUS held that to “obtain reinstatement [to the job], damages, or other relief related to the end result of an employment decision, a showing that a personnel action would have been different if age had not been taken into account is necessary, but if age discrimination played a lesser part in the decision, other remedies may be appropriate.

Justice Thomas dissented and other justices wrote concurring opinions, including a footnote in which a second Justice concurred. I expect lower Court decisions in different cases interpreting what SCOTUS means here in law and in practice. For now, and while you shelter in place, please read some of the reasoning in the majority opinion and the importance of words and their meanings in interpreting the statute (I quote from the syllabus):

Two matters of syntax are critical here. First, “based on age”is an adjectival phrase modifying 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, “free from any discrimination” is an adverbial phrase that modifies the verb “made” and describes how a personnel action must be “made,” namely, in a way that is not tainted by differential treatment based on age. Thus, the straightforward meaning of §633a (a)’s terms is that the statute does not require proof that an employment decision would have turned out differently if age had not been taken into account. Instead, if age is a factor in an employment decision, the statute has been violated.

The Government has no answer to this parsing of the statutory text. It makes correct points about the meaning of particular words, but draws the unwarranted conclusion that the statutory text requires something more than a federal employer’s mere consideration of age in personnel decisions. The Government’s only other textual argument is that the term “made” refers to a particular moment in time, i.e., the moment when the final employment decision is made. That interpretation, however, does not mean that age must be a but-for cause of the ultimate outcome. Pp. 5–7 [of the Decision]”

Huh? This case turned on statutory interpretation, and isn’t it interesting how SCOTUS reasoned? In practice, it now will be less daunting for the federal employee to prove age played a factor in a personnel action, but to be awarded reinstatement and other relief, the employee still must prove age was the reason for the personnel action.

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