Supreme Court issues pro-plaintiff age discrimination ruling

A hidden trend over the last decade or so is that the federal courts have redefined the causation standard for employment discrimination cases. In 2009, the Supreme Court interpreted the Age Discrimination in Employment Act to mean that plaintiffs must prove the discrimination was the determining factor in the discrimination, not merely a motivating factor. In another case, the Court then interpreted Title VII's anti-retaliation provision the same way, distinguishing those cases from the language in Title VII's other provisions against disparate treatment, which only require proof that discrimination was a "motivating factor." The new standard is known as "but-for causation. The Supreme Court earlier this year also interpreted Section 1981, which prohibits racial discrimination in the making and enforcement of contracts, to require but-for causation. But it follows that up with this case holding that the more plaintiff-friendly motivating factor test guides the age discrimination law involving federal employees. Even more surprising for those of us who follow this issue, this was an 8-1 ruling.

The case is Babb v. Wilkie, issued on April 6. The reason why the Supreme Court interprets some federal discrimination statutes to require "but-for" causation and others only apply the "motivating factor" test is that the statutes all use different language. Some say that certain forms of discrimination or retaliation "because of" a protected characteristic or activity is illegal. Other statutes say discrimination cannot be a motivating factor. Whether Congress actually intended that these statutes apply different causation standards is a matter for legal scholars. What matters for us is that the Supreme Court is applying the language in the statutes as if Congress did intend that each of these phrases was put there for a reason.

The provision of the Age Discrimination in Employment governing federal employees uses different language than the provisions affecting everyone else. It says that "All 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." Under the plain language of the statute, Justice Alito writes for the majority, "age need not be a but-for cause of an employment decision for there to be a violation of" this provision.

The Supreme Court likes to consult old dictionaries to see what the operative language in federal statutes really means. That means the Court has the best set of dictionaries in America. Using dictionaries from 1966, 1969 and 1976 (the ADEA was enacted in 1967), the Court says that "the phrase 'free from' means 'untainted' or 'clear of (something that is regarded as objectionable)." In "common talk," to be "free from" has the same definition. As for the phrase "shall be made," dictionary definitions "emphasize the important of avoiding the taint." The Court then considers how these phrases interact with each other. In the end, "age must be a but-for cause of discrimination -- that is, of differential treatment -- but not necessarily a but-for cause of a personnel action itself. . . If age discrimination plays any part in the way a decision is made, then the decision is not made in a ay that is untainted by such discrimination." This is complex, but the Court provides an example of how this works:

To see what this entails in practice, consider a simple example. Suppose that a decision-maker is trying to decide whether to promote employee A, who is 35 years old, or employee B, who is 55. Under the employer's policy, candidates for promotion are first given numerical scores based on non-discriminatory factors. Candidates over the age of 40 are then docked five points, and the employee with the highest score is promoted. Based on the non-discriminatory factors, employee A (the 35-year-old) is given a score of 90, and employee B (the 55-year-old) gets a score of 85. But employee B is then docked 5 points because of age and thus ends up with a final score of 80. The decision-maker looks at the candidates' final scores and, seeing that employee A has the higher score, promotes employee A. 

This decision is not “made” “free from any discrimination” because employee B was treated differently (and less favorably) than employee A (because she was docked five points and A was not). And this discrimination was “based on age” because the five points would not have been taken away were it not for employee B's age. 

It is true that this difference in treatment did not affect the outcome, and therefore age was not a but-for cause of the decision to promote employee A. Employee A would have won out even if age had not been considered and employee B had not lost five points, since A's score of 90 was higher than B's initial, legitimate score of 85. But under the language of § 633a(a), this does not preclude liability.