The Age Discrimination in Employment Act (ADEA) prohibits age discrimination against employees who are 40 and over. It applies to both the private and public sectors, including the federal government. However, the language in the Act is slightly different when talking about federal employees than when discussing private sector employees.
Now, the U.S. Supreme Court is deciding whether Congress meant to make the standards different for federal employees. What do federal employees have to prove to show they were affected by age discrimination?
The case is Babb v. Wilkie, and the Supreme Court heard oral arguments on Jan. 15.
The case involves a clinical pharmacist who worked for the Department of Veterans Affairs. She claims she was denied opportunities for advancement based on her age and other protected characteristics. What does she have to show to prove that?
If she had been a private-sector employee, the standard would be clear
For claims in the private sector, the ADEA reads, “it shall be unlawful for an employer … to … discriminate against any individual with respect to his … employment because of such individual’s age.”
According to the 11th Circuit Court of Appeals, the appellate court in this case, the phrase “because of” means that an employee has to show that their age was the “but for” reason behind the employer’s action. In other words, the employer would not have taken the action but for the employee’s age.
The language of the ADEA is slightly different when it applies to federal employees. In that case, the law states, “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.”
The plaintiff argues that we must assume Congress meant the standards to be different. She says that the different language implies that federal employers are not allowed to use age as a substantial factor in job decisions.
Moreover, she notes that the federal employee language of the ADEA is identical to corresponding language in Title VII of the Civil Rights Act of 1964, so the courts should interpret this section of the ADEA using the same standards traditionally used for federal Title VII claims.
The difference here is important. Should federal employees have to prove that age was the only motivating factor in an apparently discriminatory job action? Or should they only have to prove that it was a substantial motivating factor?
Chief Justice Roberts questions the ‘free from any discrimination’ standard
During oral argument, Chief Justice John Roberts indicated that he thought the “substantial motivating factor” standard might be hard to apply.
If a younger hiring manager were to say “OK, Boomer” to an older job applicant, he asked, “How do you tell what’s a significant factor in the decision?”
That said, courts are already applying the standard in Title VII cases involving federal workers. Furthermore, it is a question of fact, which means it is a question for the jury.
The attorney arguing for the government thinks the standard should be the same as for private-sector employees, even though the language of the statute is different. He argued that there is no reason Congress would have intended to use different standards.
But shouldn’t we assume that Congress meant something by its decision to use different words in different parts of the statute? Courts have generally assumed in the past that Congress means what it says.