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April 2020

U.S. Supreme Court Rules Federal Workers Can Sue Over ‘Any’ Age Bias

On April 6, 2020, the United States Supreme Court issued its opinion in Babb v. Wilkie, holding that federal employees have a claim of age discrimination if "any" age bias plays a part in a personnel decision. This departs from the "but for" standard that usually applies in discrimination claims, where employees generally have a claim only if the personnel decision, such as a termination, would not have occurred but for the discrimination.

In Babb, a former employee of the U.S. Department of Veterans Affairs Medical Center alleged she was subjected to numerous adverse personnel decisions, such as being passed over for a promotion, and claimed that those decisions were based in part on age discrimination. The employer moved for summary judgment, arguing that it had non-pretextual reasons for the actions. Utilizing the usual burden-shifting standards for discrimination claims, the trial court granted the motion, and the Eleventh Circuit affirmed.

However, the United States Supreme Court reversed. It based its decision almost entirely on the language of the Age Discrimination in Employment Act ("ADEA"). The section of the ADEA that applies to federal employees provides that "[a]ll personnel actions affecting employees or applicants for employment who are at least 40 years of age … shall be made free from any discrimination based on age." (Babb v. Wilkie 589 U.S. ___ (2020) (emphasis added).) The Court concluded that the "plain language" of the statute shows that age need not be a "but-for cause of an employment decision in order for there to be a violation of" the act. That is, if age discrimination played a part in the personnel decision, the federal employee has a claim, even if the employer would have made the same decision absent the discrimination.

The Court provided an example of how age discrimination could play a role in a decision but not affect the outcome. Suppose an employer was trying to decide whom to promote, and graded employees based on non-discriminatory factors. Candidates over the age of 40 are then docked five points. Employee A (under 40) scored 90 points on the non-discriminatory factors, and employee B (over 40) scored 85 on those factors, and is then docked five points for a total score of 80. Based on the scores, the employer promotes employee A. While age discrimination played a role in the promotion process, employee B would not have earned the promotion even if bias had played no role. Employee B would have an age discrimination claim under Babb. Justice Thomas dissented, arguing that the broad standard risks imposing hardships on employers tasked with managing thousands of federal employees.      

While this is a striking departure from the way courts usually evaluate discrimination claims, the holding is limited in at least two important respects. First, while a federal employee may have a claim under the ADEA if "any" age bias played a role in a decision, the employee is not entitled to remedies such as reinstatement, back-pay or compensatory damages unless the employee can show that age discrimination was the traditional "but-for" cause of the employment decision. If the employee cannot do so, remedies are limited to "injunctive and other forward-looking relief." The exact scope of relief available will be determined by the district courts.  

Second, Babb is limited to federal employees. The Court did not disturb the "but-for" causation standard for discrimination claims brought by private employees (or by employees of state or local governments). The Court noted that the language of the ADEA governing those types of claims was markedly different.

For more information regarding how this ruling may impact your business, please contact the authors or visit the Gordon Rees Scully Mansukhani, LLP website at

Employment Law

Linda M. Moroney

Employment Law