In Babb v Wilkie, Secretary of Veterans Affairs, USSC No. 18-882, 4/6/20, the U.S. Supreme Court has reversed and remanded a decision upholding a summary judgement ruling for the federal agency (U.S. Department of Veterans Affairs) accused of age discrimination under the ADEA in several adverse personnel actions.
In the trail court, the VA moved for summary judgment because it was able to articulate nondiscriminatory reasons for the various actions it took against Noris Babb, a clinical pharmacist at a VA Medical Center. The trial court agreed that VA had “proffered legitimate reasons for the challenged actions, and that no jury could reasonably conclude that those reasons were pretextual.”
Babb argued on appeal that the trial court erred because the ADEA as it applied to federal personnel actions requires that any personnel action against a protected individual (age 40 or older) must be “free from any discrimination based on age.” If age is in any way a factor in the personnel action against a protected class member then such a personnel action is prohibited—period.
The Supreme Court agrees with Babb, holding that “The plain meaning of …[the law] demands that personnel actions be untainted by any consideration of age.” The Court acknowledges that this is a stricter standard than that applied to private employers as well as state and local government employers under the ADEA. However, Congress “deliberately” set out a different approach to federal sector age discrimination complaints. In this regard the law is “unambiguous.”
However, the court goes on to hold that in deciding an appropriate remedy where age 40 or above was a factor in taking a personnel action, there must be an analysis of “but-for cause.” In other words, would the action have been taken anyway “but for” the illegal age discrimination. If so, then the remedy would likely be different. As the court stated, “Remedies must be tailored to the injury. Plaintiffs who show that age was a but-for cause of differential treatment in an employment decision, but not a but-for cause of the decision itself, can still seek injunctive or other forward-looking relief.”