Fedweek

split decision age discrimination federal workforce Decision sets lower standard for establishing a claim, higher bar for getting relief.

The Supreme Court has issued what amounts to a split ruling on the legal standards for federal employees alleging age discrimination, setting a lower standard for establishing such a claim but keeping in place a higher bar for getting relief such as back pay.

The case, Babb v. Wilkie, focused on a difference between civil service law and general civil rights law on what constitutes age discrimination.

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The former states that federal sector personnel actions — such an appointment, promotion, work assignment, compensation or performance review — affecting someone aged 40 or older must be “free from any discrimination based on age”; the latter requires a showing that the employer would not have made the same decision “but for” age discrimination.

Despite the difference in the laws, the government argued that a federal agency is liable for age discrimination only under the civil rights law standard.

Yet, the high court ruled that civil service law “does not require proof that an employment decision would have turned out differently if age had not been taken into account. Instead, if age is a factor in an employment decision, the statute has been violated.”

The court also rejected the government’s argument that it is unusual “to hold the federal government to a stricter standard than private employers or state and local governments. That is what the statutory language dictates, and if Congress had wanted to impose the same standard on all employers, it could have easily done so . . . That Congress would want to hold the federal government to a higher standard than state and private employers is not unusual.”

It said, however, that “this does not mean that a plaintiff may obtain all forms of relief that are generally available for a violation including hiring, reinstatement, backpay, and compensatory damages, without showing that a personnel action would have been different if age had not been taken into account. To obtain such relief, a plaintiff must show that age was a but-for cause of the challenged employment decision.”

It added that “if age discrimination played a lesser part in the decision, other remedies may be appropriate,” saying that what would be appropriate would have to be decided in each case.

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2020 Federal Employees Handbook