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Age Discrimination Must Not Taint Federal Agencies' Personnel Decisions

In January, the U.S. Supreme Court heard oral arguments about whether the age discrimination rules for the federal workforce are different from those for private sector employees.

The Age Discrimination in Employment Act (ADEA) is the main federal law prohibiting employment discrimination based on age. For private sector employees, the ADEA states that "it shall be unlawful for an employer ... to ... discriminate against any individual with respect to his ... employment because of such individual's age."

When it comes to the federal workforce, the language of the law is slightly different: "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 lower court ruled that this difference in language meant that federal employees had less protection than private sector workers. Instead of having to prove merely that age bias was a factor in an employment decision, federal workers would have to prove that, but for the employee's age, the outcome would have been different. This is referred to as the "but for" test.

"But for" test only dictates the remedy, not the outcome of the case

Now, the Supreme Court has issued its opinion. It chose something of a middle path between two extremes. It found that the plain language of the law requires federal agencies to make all their employment decisions without any taint of discrimination based on age. That said, if a person feels a personnel decision was tainted by age discrimination, they may still have to meet the "but for" test if they are to receive a remedy such as reinstatement to the job, back pay or damages.

"But if age discrimination played a lesser part in the decision, other remedies may be appropriate," wrote Justice Samuel Alito for the majority.

The idea is that no one should have a remedy that looks "backward" by reinstating someone or making up for damage that occurred from the adverse personnel decision unless the person can prove that, but for the age discrimination, the decision would have been different. However, if they can show age discrimination to a lesser extent, they could still seek a "forward-looking" remedy, such as an injunction.

Federal job applicants and employees can now bring a cause of action for discrimination if they can show that a decision against them was tainted by age bias. What remedies are available without meeting the "but for" test will have to be decided by the lower courts.

If you experienced age discrimination as a federal job applicant or as part of the federal workforce, you should discuss your concerns with an experienced employment law attorney.

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