In cases against private employers under the Age Discrimination of Employment Act (ADEA), employees must establish traditional “but for” causation. See Gross v. FBL Fin. Servs., 557 U.S. 167 (2009). This basically means that the termination or other adverse action at issue would not have happened without the unlawful discriminatory motive. This standard is grounded in the language of the statute, 29 U.S.C. § 623(a), prohibiting discrimination “because of” an employee’s age. See id. at 176-77.
In contrast, under Title VII’s “mixed motive” provisions, “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. § 2000e-2(m). If the employer proves that it would have taken the same action regardless of the impermissible factor, liability attaches but remedies are limited to declaratory and injunctive relief and attorney’s fees and costs directly attributable to the claim; the employee may not obtain damages, reinstatement, or other specific job-related relief. 42 U.S.C. § 2000e-5(g)(2)(B).
Babb v. Wilkie, Secretary of Veterans Affairs navigates this backdrop to address a specific provision of the ADEA applicable to federal sector workers. As opposed to private sector employees covered by § 623, federal employees “shall be made free from any discrimination based on age.” 29 U.S.C. § 633a(a) (emphasis added). The essential question at issue in Babb was whether this language requires “but for” causation or imposes another standard for liability.
In particular, plaintiff Noris Babb—a sixty-year old pharmacist at a VA hospital—was passed over for promotions and subject to other adverse actions, all accompanied by a variety of age-related comments. Applying the typical McDonnell-Douglas burden-shifting analysis, the district court granted summary judgment in favor of defendant, the VA—concluding that it had advanced non-discriminatory reasons for its challenged actions and that a jury could not reasonably conclude that such reasons were pretextual. On appeal, Ms. Babb asserted that this analysis was incompatible with a “mixed motive” framework, as indicated by the language of § 633a(a), under which unlawful age discrimination need not be the “but for” cause of an action but need only be a factor in the challenged decision. The case made it up to the Supreme Court.
Interpreting this provision, a nearly-unanimous Court determined that the “plain meaning of the critical statutory language (‘made free from any discrimination based on age’) demands that personnel actions be untainted by any consideration of age.” This is a common-sense reading that applies to the benefit of federal workers. In reaching this conclusion, the Court rejected the Government’s position that a “but-for” causation standard should apply.
However, the Court read in a limitation on remedies similar to that encoded in Title VII at 42 U.S.C. § 2000e-5(g)(2)(B): “plaintiffs who demonstrate only that they were subjected to unequal consideration cannot obtain reinstatement, backpay, compensatory damages, or other forms of relief related to the end result of an employment decision. To obtain such remedies, these plaintiffs must show that age discrimination was a but-for cause of the employment outcome.” The Court reasoned that remedies must be tailored to the cognizable injury that a victim has suffered and restore him or her to the rightful position he or she would have occupied absent discrimination. In the Court’s estimation, a plaintiff who would have faced the same employment action regardless of age has suffered no such harm and should not be placed in a better position than what he or she would have been in even without being subject to age discrimination. Thus, such an employee is limited to “injunctive or other forward-looking relief.”
As a result, the Court remanded the case for further proceedings on liability under the applicable causation standard as well as the appropriate remedy for any violation found.
The takeaway from Babb is that federal sector employees age 40 or older are to be free from consideration of their age in any employment action or decision. Age should not intrude in any manner. This is a significant protection for federal workers. However, unless “but-for” causation is proven, remedies are limited—inhibiting many employees’ incentive to bring suit to challenge unlawful practices.