https://www.supremecourt.gov/opinions/19pdf/18-882_3ebh.pdf

On April 6, 2020, the United States Supreme Court issued its 8–1 decision in Babb v. Wilkie, which resolves a circuit split over the causation standard for federal workers under the Age Discrimination in Employment Act (ADEA). The Court held that federal workers may state a claim for liability under the ADEA by proving that age played a factor in the plaintiff’s personnel decision. As to remedies, however, plaintiffs would be limited to prospective injunctive relief only, unless they meet the higher standard of proof that the discriminatory action would not have occurred “but for” age discrimination.

The Court focused almost exclusively on statutory construction, and the plain language of the provision of the ADEA pertaining to federal workers – 29 U.S.C. § 633a(a):

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.

Justice Alito, writing for the majority, deconstructed the statutory provision and determined that the phrase “shall be made free from discrimination” “demands that personnel actions be untainted by any consideration of age” (emphasis added). Accordingly, based on the plain language of the statute, age playing any part in a personnel decision violates the statute with regard to federal workers. Justice Alito reasoned that Congress was deliberate in choosing the statutory language when it amended the ADEA to cover federal workers.

Justices Sotomayor and Ginsburg concurred, with nuanced analyses.

Justice Thomas dissented, highlighting that the Court’s decision “is so broad that a plaintiff could bring a cause of action even if he is ultimately promoted or hired over a younger applicant.”

The Supreme Court’s decision affects only federal workers, and does not change the “but for” standard of causation for ADEA claims against private businesses, state and/or municipal employers.