Argument analysis: May a federal employer say “OK, boomer” to a job applicant?

On Wednesday, the Supreme Court heard argument in Babb v. Wilkie, about whether the provision of the Age Discrimination in Employment Act that applies to the federal government requires plaintiffs to show that they would have received better treatment “but for” the government’s consideration of their age.

The key statutory language requires that federal agencies’ “personnel actions affecting employees … who are at least 40 years of age … shall be made free from any discrimination based on age.” The ADEA’s federal-sector provision differs from the language that applies to private and state or local employers; these employers may not discriminate against an older worker “because of such individual’s age.” The court has already interpreted the private-sector provision to require “but for” causation, so Roman Martinez, representing the petitioner, Dr. Noris Babb, emphasized textual differences between the two provisions in his effort to persuade the justices that “but for” causation is not required for his client’s federal-sector age-discrimination claim. He argued that the court should read the language of the federal-sector provision as a whole, and that the entire phrase “actions … made free from any discrimination” indicates that Congress was concerned about discrimination occurring at any time during the hiring process, whether or not discrimination drives the outcome of that process.

However, Justices Brett Kavanaugh and Neil Gorsuch homed in on individual words in the federal-sector provision. Kavanaugh focused on “actions,” reasoning that “the action is usually referred to as an adverse employment action” that comes at the end of a decision-making process. Later, Gorsuch asked whether Martinez’s argument would require the court to accept that the word “discrimination” in the federal-sector provision means something different than it does in the private-sector context.

Justice Samuel Alito questioned whether Babb’s theory would lead to liability “if age plays no role whatsoever in the actual decision but at some prior point in the process, age was considered.” Martinez responded that the federal government would be in the clear if “age was not a factor at all” in the “decisionmaking process,” but that a process in which “age played a significant role” would run afoul of the statute. This led Chief Justice John Roberts to ask about a hiring process in which a “younger” decisionmaker says “okay, boomer” “to the applicant.” Martinez said this scenario might be chalked up to a “stray comment,” but Roberts pressed Martinez on whether his reading of the statutory language would become “really just a regulation of speech in the workplace.” Justice Stephen Breyer then queried whether it would make sense to read the ADEA’s federal-sector provision to require that plaintiffs prove that age was a “motivating factor,” similar to the employment-discrimination provision of the Civil Rights Act.

Solicitor General Noel Francisco, representing the federal government, allowed that Babb’s reading of the statute was “a decent textual argument.” However, he argued that Congress would have spoken more clearly if it meant to indicate that “but for” causation – the normal requirement in tort cases – did not apply to federal-sector age discrimination. Further, he emphasized that his reading would mean that the same causation rules would apply to private, state and federal employers. Justice Ruth Bader Ginsburg responded that the government’s reading would make the “extra words” of the federal-sector provision “meaningless surplus.” Amplifying this point, Justice Elena Kagan observed that in the federal-sector provision, Congress “enacted a very different kind of statute [from the private-sector provision,] which puts the … language that your brief primarily relies on, which is ‘based on’ or ‘because of,’ in a completely different place in the statute modifying a completely different noun.”

In response, the solicitor general offered an analogy:

[S]uppose you had a statute that said all cakes shall be made free from the use of eggs. In the course of the cake baking process, I whisk up a bowl of eggs, I think about dumping it into the batter, but then I say [I am] supposed to be making a … cake without eggs, so I throw it in the trash. I have made a cake free from the use of any eggs, notwithstanding my use of eggs in the cake baking process because the final cake … is free from the use of eggs.

The purpose of this analogy was to focus the court on the statutory word “made,” by suggesting that one should evaluate whether the cake was “made free from” eggs based on whether eggs are in the final result, not whether they played a role in the preparation process. But Alito raised a potential flaw in the analogy, asking about a different scenario in which “a little bit of egg [is] put in the final batter.” In that scenario, the solicitor general allowed, the eggs – a stand-in for age discrimination – “would be a but-for cause but maybe not the sole but-for cause.”

Several justices asked about the practical significance of deciding the case in Babb’s favor. For example, Kavanaugh asked what a plaintiff would gain from a judgment that the government had illegally considered their age, but not in a way that made a difference to its final decision. Martinez agreed that such a plaintiff could not win reinstatement or back pay, but emphasized that courts might order that the government end discriminatory practices going forward or issue other forms of forward-looking relief. The solicitor general countered that other statutes – notably provisions of the Civil Service Reform Act – would allow Babb to win the relief that she argues should be available under the ADEA, and this point drew several follow-up questions from Kavanaugh. However, in rebuttal, Martinez cast doubt on the premise by asserting that one of these CSRA provisions “is unenforceable.”

Troublingly for the government, Alito told the solicitor general that he had “a terrible time fitting your argument into the statutory language.” Further, Roberts seemed skeptical of the argument that allowing liability when plaintiffs could not show but-for causation would have little practical effect, observing that “usually when we … conclude that there’s a tainted process, we make the decisionmaker go back and do it over without the taint, don’t we?” Only two justices – Kavanaugh and Gorsuch – seem very likely to vote for the government’s position, while the four more liberal justices seem likely to vote for Babb’s. Justice Clarence Thomas, as usual, said nothing during argument. All this makes for a shaky basis on which to make predictions – but one should not rule out the possibility of a win for Babb.

Editor’s note: Analysis based on transcript of oral argument.