What does an age discrimination plaintiff have to prove to succeed? Federal employees may have an easier path for proving an age discrimination claim, if we are reading the tea leaves correctly on the Supreme Court’s oral argument in the Babb v. Wilkie case.

Currently, because of the Supreme Court’s Gross v. FBL Financial Services decision, age discrimination plaintiffs have to prove that age was the “but-for” causation of the adverse employment action, which is a more stringent causation standard than other discrimination claims, such as those based on race or sex under Title VII. The Babb v. Wilkie case is on review from the Eleventh Circuit, and the highest court is considering whether the federal-sector provision of the Age Discrimination in Employment Act (prohibiting age-based discrimination for any agency employees age 40 or older) requires a plaintiff to prove that age was a but-for cause of the challenged employment decision.

The Facts and Oral Argument

Plaintiff Noris Babb worked as a pharmacist at a VA Medical Center in Bay Pines, Florida. Following the VA’s implementation of a nationwide program affecting its pharmacies, Babb and other pharmacists were not permitted to transition to the new program (with an accompanying promotion and raise), but two pharmacists who were under 40 years of age were transitioned. Babb disagreed with the decision and filed suit in the Middle District of Florida alleging miscellaneous claims, including age and gender discrimination. The district court granted summary judgment to the VA. On appeal, the Eleventh Circuit overturned summary judgment as to Babb’s gender discrimination claim but affirmed summary judgment on the age discrimination claim. Babb then petitioned the U.S. Supreme Court for review, arguing that the but-for causation standard applicable to ADEA claims disadvantaged federal employees.

The Supreme Court heard oral argument on Wednesday, January 15, 2020. During oral argument, Chief Justice Roberts and Justices Gorsuch and Kavanaugh indicated their skepticism that the standard needed to be relaxed. Chief Justice Roberts, for example, asked whether a one-off statement such as “Okay, Boomer” to a job applicant would amount to actionable age discrimination. He further expressed concern that a relaxed causation standard would amount to regulated speech in the workplace. The other justices, however, suggested that they were more inclined to relax the but-for causation standard.

Takeaways

Employers should remember that while a change in the age discrimination causation standard would be significant from an academic standpoint, the standard is a legal rather than a practical concern. The standard does not really come into play unless an age discrimination claim gets to a jury. The applicable summary judgment standard remains the McDonnell-Douglas burden shifting framework to determine whether a claim should be dismissed as a matter of law or reach a jury.  Most importantly, when you are making a decision about how to treat an employee in the protected age group, you want to focus on business needs and what is (and appears) fair rather on whether the employee could prove “but-for” causation rather than merely a preponderance of the evidence.

Stay tuned for the results on the ADEA causation standard as we await a ruling in Babb v. Wilkie.