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July 23, 2021 MEMBER OP-ED

Babb v. Wilkie, Continues to Muddy the Waters

by Michael Foreman

On  April 6, 2020 the Court entered its opinion in Babb v. Wilkie, 18-882 another case involving the appropriate causation standards in employment discrimination cases. This opinion follows on the Court's opinion a week earlier in Comcast v. National Association of African-American Owned Media where the Court held that a plaintiff is required to establish "but for" cause to prevail on a claim under 42 U.S.C. § 1981.

In Babb, the Court held that under the Age Discrimination in Employment Act of 1967, 29 U.S.C § 633a(a), which applies to federal employees, "[t]he plain meaning of the critical language ('made free from any discrimination based on age') demands that personnel actions be untainted by any consideration of age."

The Court further explained that "under §633a(a), age must be the but-for cause of differential-treatment, not that age must be a but-for cause of the ultimate decision." (emphasis in the original). However, if the employee cannot show that age was the but-for cause of the ultimate employment decision the employee's relief is limited.

The Court reversed and remanded the case to the Eleventh Circuit. 8-1. The majority opinion was written by Justice Alito in which Justice Ginsburg joined, except for footnote 3.  Justice Sotomayor wrote a concurring opinion, joined by Justice Ginsburg. Justice Thomas wrote a dissenting opinion.



Noris Babb, born in 1960, worked as a clinical pharmacist at the U.S. Department of Veterans Affairs Medical Center. Babb brought suit in 2014 against the Secretary of Veterans Affairs, Robert Wilkie, (the "VA") claiming she was subjected to age and sex discrimination, as well as retaliation for engaging in activities protected by federal anti-discrimination laws. Only her age-discrimination claims made it to SCOTUS. Her claims under the Age Discrimination in Employment Act of 1967 ("ADEA") centered on the following personnel actions:

  1. In 2013, the VA took away Babb's "advanced scope" designation, which had made her eligible for promotion on the federal government's General Scale from a GS-12 to a GS-13;
  2. During this same time period, she was denied training opportunities and was passed over for positions in the hospital's anticoagulation clinic; and
  3. In 2014, she was placed in a new position, and while her grade was raised to GS-13, her holiday pay was reduced.
  4. <\/ol>

    Babb argued that her age was a consideration in these employment decisions and that the fact that supervisors made age-based comments further supported her claims.

    Procedural History

    Babb filed suit against the VA (Secretary Wilkie) under Title VII of the Civil Rights Act of 1964 and the ADEA alleging that she was the victim of sex and age discrimination and that the VA retaliated against her for participating in protected EEO activity, in violation of those laws. The district court granted summary judgment for the VA. The district court analyzed Babb's age discrimination claims under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The district court found that although Babb had established a prima facie case of discrimination, the VA had proffered legitimate reasons for the challenged actions which no reasonable jury could find to be pretextual.

    On appeal to the U.S. Court of Appeals for the Eleventh Circuit, Babb argued the district court erred in part by not allowing her to prove that her age was a "motivating factor" in the VA's employment actions. The Eleventh Circuit affirmed the lower court, finding itself bound by precedent that federal sector employees' claims under the ADEA and Title VII require the plaintiff to show "but for" cause of the adverse personnel actions.


    Whether § 633a(a) of the ADEA imposes liability only when age is the "but-for cause" of the personnel action.


    Wilkie (the VA)

    The government argued the plain language of § 633a(a) of the ADEA imposes liability only when age is the but-for cause of an employment decision. Additionally, the government argued a plaintiff cannot obtain relief unless she/he shows the employment decision would have been favorable if age had not been considered. The government's interpretation of the statute follows more closely with the statute's plain language and the "default rule" of but-for cause for employment discrimination cases recognized by the Court in Nassar, Gross, etc.


    Babb argued the plain language of the statute prohibits any adverse consideration of age in the decision-making process. Thus, she argued, proof that age was the but-for cause of the challenged employment decision is not needed to establish a claim of age discrimination.


    The Court begin by explaining that the analysis must "begin with the text of the statute" and the Court then quickly noted that in this case "as it turns out, it is not necessary to go any further."

    The Court then analyzed the plain language of § 633a(a). The federal-sector provision of the ADEA provides that "personnel actions" affecting individuals aged 40 and older "shall be made free from any discrimination based on age." The Court then embarked on an analysis of the language in such detail that any textualist would be proud. 

    The Court first observed that although the ADEA does not define the term "personnel actions," the Civil Service Reform Act of 1978 does. In that act, which also governs federal employment, "personnel actions" includes "most employment-related decisions such as appointment, promotion, work assignment, compensation, and performance reviews." Thus, the Court held "personnel actions" under the ADEA means the same as it does in the Civil Service Reform Act.

    The Court then examined the terms  "free from" and  "any" concluding based on several dictionary definitions that the term "free from"  means that "a personnel action must be 'untainted' by discrimination based upon age" and that the use of the term "any" drives that point home.

    The Court noted that the term "discrimination" in the ADEA's statutory language carries "the normal definition" which is deferential treatment (citing Jackson v. Birmingham (2005)). The Court continued explaining that when a statute refers to "discrimination based upon age" it indicates but-for causation. Accordingly, the Court concludes that age must be a but-for cause of the discrimination alleged." Just so there is no confusion the Court later clarifies what this means for federal employees. The Court explains that "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."

    How does the Court get to this distinction?  Primary school English teachers hold your heads up.  The Court concludes that the words "based on age" is an adjectival phrase that modifies the noun "discrimination" and does not modify "personnel actions." Therefore, age does not necessarily have to be the but-for cause of a personnel action, only of the differential treatment/discrimination. The Court then continues to explain that the words "free from any discrimination" is an adverbial phrase that modifies the verb "made." Therefore, a personnel action must be "made" in a way that is not tainted by differential treatment based on age or in the words of the statute, "free from any discrimination." Thus, the plain language of the federal-sector provision in the ADEA provides that age does not need to be the but-for cause of an employment decision in order for there to be a violation of § 633a(a). There is a violation to § 633a(a) of the ADEA when age "plays any part in the way a [personnel] decision is made."

    The Court then provides an example of when the ADEA would be violated even if the consideration of age would not have changed the final decision. Later on the Court provides another example of when some consideration of age did not taint the personnel decision involved.

    The Government argued that the Court's past precedent controlled the outcome here and required an adoption of a but-for causation standard. The Court rejected this argument holding that the Court's decision in Babb is entirely consistent with prior precedent. The Court explained that in Safeco Ins. Co. of America v. Burr , 551 U.S. 47 (2007), the statutory language in the ADEA and the Fair Credit Reporting Act  are significantly different. Section 633a(a) of the ADEA expressly imposes liability if age discrimination plays any part of the employment decision, while the FCRA does not. Turning to Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009)  (involving the private-sector provision of the ADEA), the Court explains the statutory language involved in the private versus public sector provisions are expressly different. The Court holds that the syntax in the private-sector provision focuses on the end result of the personnel decision. This is a direct contrast from the syntax in the public-sector provision which focuses on age being a cause of differential treatment, not necessarily of the personnel action.[16] Finally, in University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338 (2013)(dealing with Title VII's anti-retaliation provision), the Court again explains the language in both statutes are significantly different. Additionally, the Court states the "traditional rule favoring but-for causation" remains intact because § 633a(a) still requires but-for cause, but the object of that causation is the discrimination, not the personnel action itself.

    The Government also argued that it makes no sense that there would be two causation standards under the ADEA: a but-for standard for private and state and local government employers and an any consideration standard for federal employers.  The Court explains that Congress is free to hold the federal government to a higher standard than it does to private employers and clearly did so here by not adopting the causation language applicable to private employers. The Court points to various cases upholding statutes in which Congress chose to hold the federal government to a higher standard.

    Finally, the Court clarifies from a practical view what is the difference between showing that a personnel decision was "tainted" by age bias and showing that that age must be a but-for cause of the discrimination alleged.  In short, it affects the relief that would be available to the employee.  The Court explained:

    Thus, §633a(a) plaintiffs 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 plaintiffs must show that age discrimina­tion was a but-for cause of the employment outcome.<\/blockquote>

    The Court explained "traditional principles of tort and remedies law" "'generally seek to place the victim of a legal wrong \u2026 in the position that person would have occupied if the wrong would not have occurred.'" (citations omitted).  The Court observed it has "long employed these principles" citing to several constitutional cases and other authority.[20]

    Concurring Opinion (Justice Sotomayor)

              Justice Sotomayor writes to clarify two points. First, the Court has not foreclosed § 633a(a) claims arising from a discriminatory process. Second, some compensatory damages may be available to a plaintiff even when the federal government engages "in non-dispositive 'age discrimination'" in making personnel decisions.

    Dissenting Opinion (Justice Thomas)

              Justice Thomas would apply the "default rule" for employment discrimination claims requiring a plaintiff to show discrimination was the but-for cause of the adverse action. Justice Thomas states the government's interpretation of the statute's language is more reasonable than the Court's because the entire phrase, "discrimination based on age," modifies "personnel actions." Therefore, what is being made is the personnel action. Justice Thomas also criticizes the majority for judicially fashioning a remedial scheme that is not found in the plain language of the statute. Finally, Justice Thomas states the Court's holding is overly broad. He says that "any consideration" is an even lower bar than the motivating-factor standard suggested by the EEOC. He states that under the majority's rule, any consideration of age--whether for positive or negative reasons--will allow an employee to bring an ADEA claim against her/his federal employer. Not only will this result in a flood of litigation, but the holding ignores the nature of federal hiring that entails exceptions and affirmative action programs.

    Where Do We Go From Here?

    Well let's start with what we know.  If it is a status-based claim under Title VII, motivating factor analysis is available.  If the employee shows that a Title VII covered trait is "a motivating factor for any employment practice" an "unlawful employment practice is established."  If the employee makes this showing the employer can limit the relief available if the employer successfully carries the burden of proving that it would have make the same decision in spite of the fact that the protected trait was a motivating factor - the same decision defense. If the employer carries this burden of proof, the court is not permitted to "award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment\u2026." The court can order "declaratory relief, injunctive relief \u2026 and attorney's fees and costs\u2026."

    If the claim is an ADEA private sector claim, under Gross we know the causation standard is but-for causation. Similarly, under Nassar if the claim is retaliation under Title VII, the standard is but-for cause. Based upon the Court's recent decision in Comcast we also know that for claims brought under 42 U.S.C. §1981 require but-for causation.  Finally, as discussed above, the ADEA as applied to federal employees demands that personnel actions be untainted by any consideration of age.  What follows from this is that "age must be the but-for cause of differential-treatment, not that age must be a but-for cause of the ultimate decision." (emphasis in the original).

    In Gross, the Court made it clear that courts "must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination."  Following the Court's decision in Nassar and Comcast, the real rule seemed to be if you want motivating factor causation,  Congress must provide it in the statute.  Babb proves that the Court is true to its word in Gross. The Court  will carefully  examine each statute to determine the appropriate causation standard.  Critical to this analysis will be the text of the statute,  and any legislative intent that signals that Congress intended to deviate from what the Court has accepted as the default rule of but-for causation. We can expect that the Court will continue to adhere to its statute by statute examination.  Currently pending before the Court are two petitions for certiorari asking the Court to determine the causation standard under the ADA. We will see.

    As to Babb it is worth nothing that the Court appeared to go out its way to not use the term "motivating factor" and avoided citing to Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The Court, in applying the terms of the statute, made it clear on several occasions that there is a violation to § 633a(a) of the ADEA when age "plays any part in the way a [personnel] decision is made. The "any" role is clearly a lower standard that even motivating factor,  which is a point that Justice Thomas explicitly notes in his dissent.

    It is more curious that while the Court appeared to adopt a Price Waterhouse type of framework,  it was not mentioned it in the opinion. This may be understandable given that a majority of this Court do not like that opinion. However a fair analysis is that Babb is a replay of Price Waterhouse with one meaningful exception - there is no burden shifting.  The Babb Court makes it clear that the employee needs to prove that consideration of age "tainted", or in the terminology of our current COVID-19 world, "infected" the personnel practice to prove a violation of §633.  But if the employee wants full relief the employee must show that age discrimina­tion was a but-for cause of the employment outcome.

    Under Babb it also appears that the employee may be entitled to more relief that an employee in a motivating factor analysis under Title VII.  I have discussed above the limitations on damages when an employer carries a same decision defense. In those situations, Title VII prohibits an award of damages.  Under Babb, while the Court noted that if an employee shows that age was the but-for cause of the different treatment,  but not but-for cause of the employment decision the employee may still be able to obtain injunctive, or other forward-looking relief.  The Court's analysis did not restrict the award of all monetary relief.  Consistent with the Court's analysis , Justice Sotomayor pointed out that §633a may permit some limited monetary award.

    I will conclude with more of a question than an answer. Under Babb employees should be more successful in getting their claims before a jury.  But how, or what do you charge a jury.  One option is to first charge on whether age was the but-for cause of the different treatment.  If the answer is yes, then ask the jury whether the consideration of the employee's age was the but-for cause of the adverse employment decision.  This would be like a jury charge under a Title VII motivating factor analysis - with one major difference: under Title VII it would be the employer's burden to prove the same decision defense.  Under Babb the employee carries both burdens. As an employee advocate, I would be wary about giving the jury two chances to say the employee's burden was not met. I would probably argue for the ultimate but-for charge.  However, I will leave that to trial attorneys who must live with this on a daily basis.

    Michael Foreman is the Director of the Civil Rights Appellate Clinic and a Professor of Clinical Education at Penn State Law.