Opinion analysis: Federal employees need not show “but-for causation” to establish age discrimination liability

Yesterday the Supreme Court delivered a win for the plaintiff in Babb v. Wilkie: Noris Babb can establish that her employer, the U.S. Department of Veterans Affairs, violated the Age Discrimination in Employment Act without having to prove that her age was the “but-for cause” of the agency’s employment decisions. However, a plaintiff who cannot establish that their age was the but-for cause of their federal employer’s adverse employment decision will not be eligible for many forms of relief, including reinstatement, back pay and compensatory damages.

The provision of the ADEA that covers federal employers admonishes that “personnel actions affecting employees … who are at least 40 years of age … shall be made free from any discrimination based on age.” This language is somewhat unusual in discrimination statutes, which more commonly prohibit employers from making employment decisions “because of” protected characteristics. The Supreme Court has consistently interpreted statues that use the “because of” formulation – a group that includes the ADEA provision that applies to both private and state and local government employers – to require but-for causation to establish liability.

Writing for an eight-justice majority, Justice Samuel Alito concluded that the text of the federal-sector provision clearly supports Babb’s position, obviating the need to consider legislative history, default rules or other methods of resolving doubts about statutory meaning. He began by using an assortment of dictionaries to define “free from” as “‘untainted’ or ‘clear of (something which is regarded as objectionable).’” Next, the type of discrimination from which federal agency personnel actions must be free is “discrimination based on age” – significantly, “based on age” modifies “discrimination” rather than “personnel actions.” Thus, Alito concluded, “age must be a but-for cause of discrimination … but not necessarily a but-for cause of a personnel action itself.” Or, put more simply, “‘free from any discrimination’ describes how a personnel action must be ‘made,’ namely, in a way that is not tainted by differential treatment based on age.”

Alito next explained why the majority had rejected the federal government’s arguments in favor of a stricter causation rule. First, the government had argued that the ADEA’s language is analogous to other statutes that the court has concluded required but-for causation. However, the majority rejected these cases as inapt based on key differences in the ADEA’s text. Likewise, the court rejected the government’s policy argument that it would be “anomalous to hold the Federal Government to a stricter standard” than other employers. The court observed that Congress’ evident preference for this result was consistent both with various executive orders that have required federal agencies to hew to stricter nondiscrimination standards than required by law, and with Congress’ approach in other civil-service laws.

Finally, the majority turned to the remedies that would be available to a plaintiff who could not establish unlawful discrimination as a but-for cause of the government’s adverse employment action. Reciting the principle that “‘requested relief’ must ‘redress the alleged injury,’” the majority wrote that such plaintiffs would not be eligible for forms of relief intended to compensate plaintiffs for their losses, such as reinstatement or back pay. However, these plaintiffs could be eligible for forward-looking relief, such as an order requiring an employer to stop using a discriminatory process in the future.

Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, concurred to make two brief points regarding the limits of Alito’s opinion. First, “the Court does not foreclose [federal employer] claims arising from discriminatory processes,” such as a hiring process that demands older employees to pass a test that is not required of younger employees. Second, in such a case, the statute “may … permit[] damages remedies,” such as when an older job applicant incurred out-of-pocket costs to prepare for a discriminatory job-application process.

Justice Clarence Thomas dissented, writing that the majority’s opinion “does serious damage to our interpretation of antidiscrimination statutes.” Thomas began by observing that the majority’s opinion puts the federal-sector ADEA provision out of step with other federal employment discrimination statutes. Given the prevalence of the “but-for” standard in other statutes, Thomas would have applied a clear-statement rule, and required but-for causation to establish liability based on ambiguity in the federal-sector ADEA provision. In addition, Thomas suggested that a rule predicating liability on any consideration of age might give rise to new challenges to federal affirmative-action policies.

Babb is reminiscent of last year’s employment-law cases, each of which resolved a relatively technical statutory issue on a unanimous basis. However, Babb likely represents the calm before the storm. By the end of the term, the Supreme Court is expected to resolve whether Title VII of the Civil Rights Act covers employment discrimination against LBGT employees. Additionally, the court was scheduled to hear two consolidated cases about the scope of the “ministerial exception” from employment discrimination law, although oral argument has been postponed due to the COVID-19 pandemic. But readers hoping that Babb may yield clues regarding the court’s eventual decision in the Title VII cases will likely be disappointed – this is a narrow opinion that hinges on the unusual language of the federal-sector ADEA provision.