SCOTUS: Is ‘OK, boomer’ quip enough to show age discrimination?

The U.S. Supreme Court this week heard oral arguments in a case that will determine whether the federal government should have a lower standard of proof in Age Discrimination in Employment Act cases than the private sector and state and local governments.

Specifically, the issue in Babb v. Department of Veterans Affairs is whether a federal employee has to prove that age was a “but-for” cause in the agency’s personnel action–meaning the ultimate decision would not have been made without considering age–or whether age was simply one of the factors in the decision.

Employee representative Roman Martinez argued that the statutory language in the ADEA, 29 USC 633a(a), requires personnel actions to be made free from “any discrimination based on age,” which means agencies are liable when age is taken into consideration in a personnel action.

Although the Supreme Court previously held (in Gross v. FBL Financial Services Inc.) that the provisions of the ADEA applicable to the private sector and local and state governments require proving that age was a but-for cause of the action, Martinez said Congress specifically wrote separate language for the federal sector, which shows that the same standard does not apply. The Equal Employment Opportunity Commission also previously held that Gross does not apply to the federal sector.

Along with the personnel action, Section 633a(a) of the ADEA, Martinez argued, also covers the process leading to that ultimate decision, both of which must be free from discrimination based on age. This standard only requires showing that age was a factor in the process leading to the action or in the ultimate personnel action, he added.

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Chief Justice John Roberts asked what would happen if an agency employee made a comment like “OK, boomer” to an applicant, wondering if the “age was a factor” standard “would become just a regulation of speech in the workplace.” Martinez responded that an age-based comment could be actionable, if, for example, a selection committee noticed applicant A was a “boomer” and considered age in selecting a younger applicant. However, if the comment was just “made out of the air” by a co-worker, the situation would be different.

Justice Department Solicitor General Noel Francisco argued that “there is no indication that Congress would have wanted to create a lower standard of proof for the federal sector than for local and state governments.” Plus, looking at 5 USC 2302(b)(1)(B), the Civil Service Reform Act specifically cross-references and uses language paralleling the private sector ADEA provisions, he said, which shows that Congress meant the same thing in both provisions.

But Justice Sonia Sotomayor said that “the most important place to go to is section 633a of ADEA, not a portion of another statute,” like 5 USC 2302(b)(1)(B), which was enacted after.

Francisco argued that Congress wrote a separate section because the federal sector is regulated differently under EEOC regulations.

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Sotomayor agreed, saying the ADEA was intended to apply equal-protection principles to age-discrimination cases, but the DOJ’s position says Congress “wanted less protection than what was possible before” the statute was enacted.

Related The disturbing new findings about discrimination at work

Francisco contended that the court should not defer to the EEOC’s decision under the Chevron doctrine, which requires deferring to the agency charged with overseeing the statute in certain circumstances–because Chevron does not apply to political disagreements and the court is the ultimate decision-maker in cases interpreting its precedent such as this one.

In Babb, the 11th U.S. Circuit Court of Appeals found that an employee failed to show that the agency’s reasons for not selecting her, changing her duties and denying training were pretext for age discrimination. The 11th Circuit upheld the District Court’s conclusion that the employee must prove that age was the but-for cause of the personnel action but remanded the gender-discrimination claim.

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Anjali Patel
Anjali Patel, Esq., is legal editor for cyberFEDS® Washington bureau.