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Employees Need Not Establish But-For Causation To Prevail Under The ADEA
Noris Babb, who was born in 1960, is a clinical pharmacist at the U.S. Department of Veterans Affairs Medical Center in Bay Pines, Florida. In 2014, Babb sued the Secretary of Veterans Affairs (VA) alleging, among other claims, a violation of the federal Age Discrimination in Employment Act (ADEA).
Babb’s age discrimination claim was based on the following personnel actions: (1) in 2013, the VA took away Babb’s “advanced scope” designation, which made her ineligible for a promotion; (2) also in 2013, she was denied training opportunities and passed over for positions in the hospital’s anticoagulation clinic; and (3) in 2014, Babb was placed in a new position, which reduced her holiday pay. Babb also alleged that her supervisors made a variety of age-related comments.
The district court dismissed Babb’s claims finding, that while Babb established a prima facie case of discrimination, the VA had legitimate reasons for its actions and no jury could reasonably conclude those reasons were pretextual. The case made its way to the U.S. Supreme Court.
The ADEA provides 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.” On appeal, the VA argued that this provision imposes liability only when age is a but-for cause of an employment decision. In other words, the alleged unlawful conduct would not have occurred but for the employee’s age. Babb, on the other hand, argued that this ADEA language prohibits any adverse consideration of age in the decision-making process. Accordingly, Babb argued that but-for causation of a challenged employment decision was not needed.
Ultimately, the Supreme Court relied on the plain meaning of the statutory language to determine that age did not need to be a but-for cause of an employment decision in order for there to be a violation of the ADEA. The Supreme Court reasoned that while age needed to be a but-for cause of discrimination, it did not need to be a but-for cause of the personnel action itself. It noted that if age discrimination plays any part in the way a decision is made, then the action is not “free from” any discrimination as required by the ADEA. Thus, the Supreme Court found that the ADEA does not require proof that an employment decision would have turned out differently if age had not been taken into account.
However, the Supreme Court found that but-for causation is important in determining the appropriate remedy for an ADEA claim. It reasoned that employees who demonstrate only that they were subjected to unequal consideration cannot obtain reinstatement, back pay, compensatory damages, or other forms of relief related to the end result of an employment decision. To obtain such remedies, these employees must show that age discrimination was a but-for cause of the employment outcome.
Babb v. Wilkie (2020) 140 S.Ct. 1168.
In our April 2020 Private Education Matters newsletter, we reported on Comcast Corp. v. National Association of African American-Owned Media, another Supreme Court case discussing the causation necessary to prevail on a discrimination claim. In Comcast, the Supreme Court confirmed a but-for causation standard for Section 1981 discrimination claims. Accordingly, schools should take note that different types of discrimination claims use different causation standards.