Issue Briefs

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Following is an excerpt from a Trump administration motion asking the Supreme Court to set a high bar for federal employees to be able to prove age discrimination in personnel actions.

The ADEA’s federal-sector provision states that “[a]ll personnel actions” affecting employees or applicants for employment in executive agencies who are at least 40 years of age “shall be made free from any discrimination based on age.” 29 U.S.C. 633a(a). The court of appeals correctly held that Section 633a(a) imposes a but-for, not a motivating-factor, test for establishing that the agency’s consideration of age resulted in the challenged personnel action. This Court’s review is nonetheless warranted to resolve a division of authority on that issue.


1. Section 633a(a)’s prohibition against “discrimination based on age” in federal personnel actions, 29 U.S.C. 633a(a), requires that a plaintiff ’s age be a but-for cause of her asserted adverse treatment. The “ ‘normal definition of discrimination’ is ‘differential treatment’ ” or, more specifically, “ ‘less favorable’ treatment.” Jackson v. Birmingham Bd. of Educ., 544 U.S.

167, 174 (2005) (citations omitted); accord Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59 (2006) (explaining that “the term ‘discriminate against’ refers to distinctions or differences in treatment that injure protected individuals.”). “[T]he phrase ‘based on,’ ” in turn, “indicates a but-for causal relationship.” Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 63 (2007). Indeed, this Court has repeatedly concluded in the privatesector ADEA discrimination and Title VII retaliation contexts that the phrase “based on” carries the same but-for causation meaning as the phrase “because of.” University of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 350 (2013); see also Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009) (same). It follows that Section 633a(a)’s prohibition against “discrimination based on age” covers personnel actions for which age was a butfor cause of the alleged discrimination.

Section 633a(a)’s textual adoption of that but-forcausation requirement reflects “the default rule[]” at common law, where a tort plaintiff must normally prove that her asserted “ ‘harm would not have occurred’ in the absence of—that is, but for—the defendant’s conduct.” Nassar, 570 U.S. at 346-347 (citation omitted).

Because the ADEA was enacted against that settled background principle, Congress “is presumed to have incorporated” that “default rule[]” in the ADEA, “absent an indication to the contrary in the statute itself.” Id. at 347. Section 633a(a) contains no contrary textual indication. Quite the opposite, Section 633a(a)’s prohibition against “discrimination based on age” in federal personnel actions makes clear that age must be a butfor cause of the agency’s allegedly harmful treatment of the plaintiff.

2. This Court’s decisions in related contexts also demonstrate that Section 633a(a) is properly read to impose a but-for causation requirement.

First, in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), a majority of the Court interpreted Title VII’s private-sector discrimination provision to require a but-for causation standard for liability. If a plaintiff showed that a protected trait was a “motivating” factor in a private-sector employment decision, the burden shifted to the employer to prove that “it would have made the same decision even if it had not taken [that factor] into account.” Id. at 258 (plurality opinion); see id. at 259-260 (White, J., concurring in the judgment), id. at 276 (O’Connor, J., concurring in the judgment); see also Gross, 557 U.S. at 173-174 (discussing Price Waterhouse). The Court has accordingly recognized that Price Waterhouse applied a “but-for caus[ation]” standard: the employer had the burden of disproving causation by “show[ing] that a discriminatory motive was not the but-for cause of the adverse employment action.” Nassar, 570 U.S. at 348.

This Court has, of course, stated that Price Waterhouse’s “burden-shifting framework [wa]s difficult to apply” in practice, that those problems “eliminated any perceivable benefit to extending its framework” to other contexts, and that it “is far from clear that the Court would have the same approach” in the privatesector Title VII context “were it to consider the question today in the first instance.” Gross, 557 U.S. at 178- 179. The Court has also determined that, “[g]iven the careful balance of lessened causation and reduced remedies Congress struck in the 1991 [Civil Rights] Act,” “no reason [exists] to think that the different balance articulated by Price Waterhouse somehow survived that legislation’s passage” so as to apply in other contexts.


Nassar, 570 U.S. at 362. But even looking only to the Price Waterhouse framework as it applied to Title VII claims before 1991, Price Waterhouse ultimately applied a “but-for” causation standard for liability, id. at 348, not the motivating-factor test that petitioner advocates. See Pet. 18, 20.

Second, this Court’s interpretation of the Civil Rights Act of 1991 demonstrates that the ADEA’s federalsector provisions apply a but-for, not motivating-factor, test for causation. The 1991 Act, which Congress enacted just two years after Price Waterhouse, “substituted a new burden-shifting framework” for the one developed by Price Waterhouse. Nassar, 570 U.S. at 349.

Specifically, Congress amended Title VII’s private-sector discrimination provision to prohibit employment practices for which a protected trait is a “motivating factor.” 42 U.S.C. 2000e-2(m). But if that trait is not a but-for cause of the adverse action, Congress limited the scope of available relief. 42 U.S.C. 2000e-5(g)(2)(B). Congress thus adopted a motivating-factor standard for causation in Title VII’s private-sector discrimination provision, but it did not do so in other provisions of Title VII or any provisions of the ADEA.

In Gross, the Court determined that “Congress’ careful tailoring of the ‘motivating factor’ claim in Title VII” and Congress’s decision “not [to] make similar changes to the ADEA”—even though the 1991 Act “amended the ADEA in several [other] ways”—demonstrated that the Court could not properly “transfer the Price Waterhouse burden-shifting framework into the ADEA.” Gross, 557 U.S. at 174, 178 n.5. And unlike Title VII’s amended private-sector provisions, Gross concluded, “the ADEA’s text does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor.” Id. at 174. Although Gross interpreted the ADEA’s private-sector provision, 29 U.S.C. 623(a), the Court’s rationale applies equally to the ADEA’s federalsector provision, 29 U.S.C. 633a(a). Congress likewise did not amend Section 633a to parallel Title VII’s private- sector prohibition, and nothing in the text of the ADEA supports application of a motivating-factor test for causation.

Finally, Nassar extended Gross’s reasoning to Title VII’s private-sector retaliation provision. Nassar emphasized that the 1991 Act showed that “the motivatingfactor standard was not an organic part of Title VII.” 570 U.S. at 351. And just as that standard “could not be read into the ADEA,” ibid., the Court concluded that it also could not be read into Title VII’s private-sector retaliation provision (Section 2000e-3), because Congress had limited the application of the motivating-factor standard to Title VII’s private-sector discrimination provision (Section 2000e-2). See id. at 352-354; see also id. at 357 (“Congress has in explicit terms altered the standard of causation for one class of claims but not another, despite the obvious opportunity to do so in the 1991 Act.”). Having declined in Nassar to import Section 2000e-2(m)’s motivating-factor test into an adjacent provision of Title VII, and having declined in Gross to import it into the ADEA’s private-sector provision, there is no sound reason to import it into the ADEA’s federal-sector provision.

3. Petitioner relies (Pet. 20) on language in Section 633a(a) requiring that federal personnel actions be free from “any discrimination based on age,” 29 U.S.C.

633a(a), which she contends holds the government to a standard higher than that required of private-sector employers. Petitioner also relies (Pet. 20) on the D.C.


Circuit’s decision in Ford v. Mabus, 629 F.3d 198 (2010), which similarly focused on Section 633a(a)’s “broad, general ban on ‘discrimination based on age,’ ” Gomez- Perez v. Potter, 553 U.S. 474, 488 (2008) (quoting 29 U.S.C. 633a(a)), and Congress’s use of the term “any” to modify that phrase. See Ford, 629 F.3d at 205-206.

That reasoning is flawed.

First, petitioner is correct that the ADEA’s privatesector provision contains “a list of specific prohibited practices,” whereas the Act’s “federal-sector provision contains a broad prohibition on ‘discrimination.’ ” Gomez- Perez, 553 U.S. at 487. The difference in wording reflects that the federal-sector provision, unlike its privatesector counterpart in Section 623(a), prohibits age-based discrimination in “[a]ll personnel actions,” 29 U.S.C.

633a(a), not only in connection with specifically listed practices. But that goes to the breadth of Section 633a(a)’s prohibition on discrimination. It does not speak to causation—i.e., when discrimination is “based on age.” That phrase naturally means age must be a but-for cause of the alleged discrimination in a personnel action.

Second, the word “any” does not affect Section 633a’s standard of causation. Ford reasoned that Congress’s use of the word “any” demonstrates that if “any amount of discrimination taint[s] a personnel action, * * * the action [i]s not ‘free from any discrimination based on age.’ ” 629 F.3d at 206. Again, that rationale fails entirely to address the underlying meaning of “discrimination based on age.” Although the word “any” can sometimes confer an “ ‘expansive meaning,’ ” it never has a “transformative” effect and thus “never change[s] in the least” the phrase that follows it. Freeman v.

Quicken Loans, Inc., 566 U.S. 624, 635 (2012) (citation omitted). Section 633a(a) simply states that any “discrimination based on age” in federal personnel actions is prohibited. But as explained above, the phrase “discrimination based on age” requires that age be a but-for cause of plaintiff ’s adverse treatment (discrimination) in a challenged personnel action.

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