A recent EEOC decision helps to clarify what a federal employee must show to prove unlawful age discrimination in a personnel action. Arroyo v. VA, EEOC Appeal No. 0120121771 (January 25, 2013), involved a complaint by a federal employee that he was not selected for a certain federal position due to his age. The Commission determined that the agency had indeed improperly considered the employee’s age in deciding not to hire him, but also found that the agency would have hired someone else even if age had not been a consideration.

The Commission ordered the agency to conduct discrimination training and consider discipline for the offending managers. The agency requested that the Commission reconsider its decision, alleging that the Commission incorrectly analyzed the age discrimination claim.

In denying the agency’s request to reconsider its prior decision, the EEOC clearly stated that a federal employee need not show that absent age discrimination, the government would not have taken adverse action against him. In other words, the employee does not have to prove that age was the "but for" cause of the action she suffered. Rather, the employee may prevail on an age discrimination claim by showing that age was at least a factor in the government’s decision to take the adverse action.

Federal employees should note, however, that, as in this case, recovery may be limited where the government succeeds in showing that although its motives were tainted by discrimination, it would have taken the same personnel action in the absence of any discriminatory motive. Here, the government convinced the Commission that it would have made the same hiring decision even absent any improper consideration of age. As a result, the complaining federal employee was not entitled to retroactive placement in the contested position. Attorney fees and compensatory damages are also not available to federal employees on claims that allege only age discrimination in the administrative process, but attorney fees are available in court.

* This information is provided by the attorneys at Passman& Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman& Kaplan, P.C., go to http://www.passmanandkaplan.com.

The attorneys at Passman& Kaplan, P.C, are the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’ legal rights. To order your copy, go to http://www.passmanandkaplan.com/CM/Custom/Federal-Employees-Survival-Guide.asp. This book originally sold for $49.95 plus s&h, but is now available for $29.95 plus s&h.