February 25, 2020

Babb v. Wilkie


Does the ADEA’s Federal-Sector Provision Require a Plaintiff to Prove that Age Was a But-For Cause of the Challenged Personnel Action?


The Department of Veterans Affairs (VA) allegedly discriminated against Dr. Noris Babb, a clinical pharmacist over age 40, based on age, in violation of Section 633a(a), the federal-sector provision of the Age Discrimination in Employment Act of 1967 (ADEA). Citing binding in-circuit precedent, the Eleventh Circuit upheld the district court’s grant of summary judgment to the VA on grounds that Babb failed to show that age was a but-for cause of the challenged personnel actions, thereby rejecting Babb’s contention that a motivating-factor standard should be applied. In this context, the Court will consider the question of which causation standard the ADEA’s federal-sector provision requires, thereby resolving an important federal question and a split in authority.

Docket No. 18-882
Argument Date: January 15, 2020
From: The Eleventh Circuit
by Anne Marie Lofaso
West Virginia University College of Law, Morgantown, WV


The federal-sector provision of the Age Discrimination in Employment Act (ADEA), states that “[a]ll personnel actions affecting employees or applicants for employment” in executive agencies “who are at least 40 years of age * * * shall be made free from any discrimination based on age.” 29 U.S.C. § 633a(a) (emphasis added). The D.C. Circuit and certain federal agencies have held that a plaintiff bringing a claim under this provision need only prove that “age was a factor in the employer’s decision.” See Ford v. Mabus, 629 F.3d 198 (D.C. Cir. 2010). By contrast, two circuits have applied a but-for causation analysis. See Babb v. Secretary, Dep’t of Veterans Affairs, 743 Fed.Appx. 280 (2018); Shelley v. Geren, 666 F.3d 599, 607 (9th Cir. 2012).


Does the ADEA’s federal-sector provision, which provides that personnel actions affecting agency employees aged 40 years or older shall be made free from any “discrimination based on age,” 29 U.S.C. § 633a(a), require a plaintiff to prove that age was a but-for cause of the challenged personnel action?


This case concerns the causation standard federal employees must meet to show that the government employer engaged in unlawful age discrimination. Petitioner-plaintiff Dr. Noris Babb, a long-term clinical pharmacist for the Department of Veterans Affairs (VA), filed an equal employment opportunity (EEO) complaint and then a suit in district court alleging that the VA had engaged in age-plus-gender discrimination in violation of the federal-sector provisions of the ADEA and Title VII when it (1) removed her qualification (advanced-scope designation) necessary for certain promotion opportunities; (2) rejected her applications for certain promotions and instead promoted two younger males; (3) denied her training opportunities; and (4) gave her inferior holiday pay benefits. She further alleged that the VA had retaliated against her for supporting her colleagues’ complaints of gender discrimination. The district court granted the VA’s motion for summary judgment. Applying the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), burden-shifting framework, the court held that, although Babb had established a prima facie case of gender and age discrimination and retaliation, she could not show that these were the but-for causes of the challenged personnel actions, because she had not shown that the VA’s proffered alternative nondiscriminatory reasons were pretextual.

The Eleventh Circuit affirmed in part, reversed in part, and remanded. First, the court of appeals affirmed the district court’s application of a but-for causation standard to Babb’s ADEA age-discrimination and Title VII retaliation claims. The court of appeals acknowledged that if it were “writing on a clean slate,” it “might well agree” with Babb that such claims should be governed by a “motivating-factor (rather than but-for) causation standard.” But the court concluded that, under its binding precedent, the ADEA’s and Title VII’s federal-sector provisions required Babb to establish but-for causation to support her claims. Second, the court of appeals reversed the district court’s grant of summary judgment on Babb’s Title VII gender discrimination claims and remanded for further proceedings.

Babb petitioned the Court for certiorari on the ADEA age-discrimination and Title VII gender-retaliation claims. The Court granted Babb’s petition on the ADEA claim only.


The ADEA’s federal-sector provision provides that “[a]ll personnel actions affecting employees or applicants for employment” in executive agencies “who are at least 40 years of age * * * shall be made free from any discrimination based on age.” 29 U.S.C. § 633a(a) (emphasis added). In determining whether a government personnel action is unlawful, the Court must determine whether “based on” means that age is the but-for cause of the discriminatory action, simply a factor in the government’s action, or something in between, such as a “substantial” motivating factor.

Babb argues that Section 633a(a), the ADEA’s federal-sector provision, prohibits the federal government from making any personnel action where age is a factor, giving three reasons in support of that contention. First, Babb maintains that Section 633a(a)’s plain language—“free from any discrimination based on age”—makes it unlawful to disfavor a federal employee based on that employee’s age. Relatedly, the ADEA’s plain language is reinforced by the ADEA’s purpose, to eliminate all discrimination against older federal employees. Second, Section 633a(a)’s legal and historical connection to Title VII’s federal-sector provision confirms that but-for causation is not required. Third, if Section 633a(a)’s language is ambiguous, the Equal Employment Opportunity Commission's (EEOC's) interpretation of that language is entitled to Chevron deference.

Babb’s first argument—the plain language argument—is itself divided into a grammatical structure and a breadth-of-language argument. As an initial matter, Babb contends that Section 633a(a)’s grammatical structure “creates an affirmative obligation on the part of the government to undertake one of its functions (“ma[king]” “personnel actions”) in a certain manner (“free from any” age discrimination).” Pet. Brief at 22. Babb then points out that Congress used “sweeping language” to define that obligation. For example, “free from” specifies that “personnel actions must be entirely ‘relieved from’ or ‘clear’ of…even the smallest amount of discrimination.” Moreover, the “word ‘any’ (‘free from any discrimination’) further emphasizes that the process must be entirely without discrimination.” Similarly, the word “discrimination” is a “broad term” with “broad reach.” And the statutory phrase “based on” modifies “discrimination” and is thus synonymous with the phrase “age discrimination.” Relatedly, Babb appends a purpose argument here, maintaining that Section 633a(a)’s “broad command that any government personnel action must be made without taking age into account” is consistent with the ADEA’s “overriding goal of eliminating unfair bias against older federal employees.”

Second, Babb argues that the legal and historical context in which Congress enacted Section 633a(a) shows that but-for causation is not required. Pet. Brief. at 27–42. As a threshold matter, Congress patterned Section 633a(a) directly after Title VII’s federal-sector provision, which has never required but-for causation and was intended “to implement the Constitution’s guarantee of equal protection for federal employees.” This argument is supported by “Title VII’s federal-sector provision,” which was “intended to strengthen the federal government’s prior efforts to ban discrimination in federal employment.” Relatedly, pre-Title VII anti-discrimination policies applicable to federal employees as reflected in Executive Orders and as interpreted by the Civil Service Commission have never required but-for causation. Thus, when Congress enacted Section 633a(a), it ratified the then-current understanding of those anti-discrimination policies and laws, which had never required but-for causation. Those regulations continue to reflect that understanding of the law as applied to federal employees.

Babb closes with the multifaceted argument that the Court should apply Chevron deference to the EEOC’s interpretation of Section 633a(a). Congress granted the EEOC the authority to “enforce the provisions of [Section 633a(a)] through appropriate remedies” and to “issue such rules, regulations, orders, and instructions as it deems necessary and appropriate to carry out its responsibilities under this section.” Pet. Brief at 40–41 (citing 29 U.S.C. § 633a(b)). Under well-established principles of administrative law, Chevron applies to EEOC adjudicative or rule-based interpretations of Section 633a. Babb notes the EEOC has consistently issued adjudicated decisions and notice-and-comment rules interpreting Section 633a(a) as not requiring but-for causation. Those interpretations are reasonable and therefore entitled to deference, concludes Babb.

In stark contrast to Babb, the government argues that Section 633a(a) requires a plaintiff to prove that age was a but-for cause of the challenged personnel action, giving four reasons for its contention. First, Section 633a(a)’s text requires but-for causation. Second, the history of the ADEA’s federal-sector provision does not support a lower causation standard. Third, the EEOC’s interpretation of the ADEA does not support a lower causation standard, and in any event that interpretation is not entitled to Chevron deference. Fourth, a lower causation standard would create significant anomalies in federal anti-discrimination law.

The government’s primary argument is a textualist one, claiming that Section 633a(a)’s plain text requires but-for causation. The textualist argument is divided into three parts—(1) a Supreme Court trilogy has explained that “based on” means “because of;” (2) without express statutory language to the contrary, the Court must apply the default, common law, causation-in-fact rule; and (3) Price Waterhouse and the 1991 congressional amendments to Title VII support the reading of Section 633a(a) as requiring a but-for causation standard.

Three Supreme Court cases—Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47 (2007), University of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013), and Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009)—support the government’s textualist argument. Accordingly, these cases explain that “based on” means “because of,” which in turn means “by reason of: on account of.” Resp. Br. at 16 (quoting Gross, (citation omitted)). Given Safeco, Nassar, and Gross, the “ADEA’s prohibition against ‘discrimination based on age,’…applies only where ‘age was the “reason” that the employer decided to act,’ i.e., where ‘age was [a] “but-for” cause of the employer’s adverse decision.’” Within that textualist  cloak, the government then quarrels with Babb’s definition of discrimination—without considering age—arguing instead that discrimination means “less favorable treatment of similarly situated individuals” (citing Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2005) (citations omitted) and Webster’s New International Dictionary of the English Language 745 (2d ed. 1958)) (internal quotation marks omitted). It adds that “[i]t is thus not enough for a federal employer merely to consider age…when making a personnel action, if that consideration does not actually cause the employer to make a less favorable personnel action than it would have made for a similarly situated person who is younger.”

To complement its textualist argument, the government next argues that the default, common law, causation-in-fact rule—“proof that the defendant’s conduct did in fact cause the plaintiff’s injury”—supports its plain language argument. Relying, once again, on Nassar and Gross, the government explains that the default rule applies to federal statutory claims of employment discrimination, including claims under the ADEA. The government emphasizes that these arguments were considered and rejected in Safeco, Nassar, and Gross, in the context of the Fair Credit Reporting Act (FCRA), Title VII’s private-sector retaliation provision, and ADEA’s private-sector provision, respectively. Resp. Br. at 18–22.

The government gives special attention to Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), and Congress’s 1991 amendment of Title VII’s private-sector discrimination provision, to show that “Section 633a(a) should be read to require but-for causation.” Resp. Br. at 22–24. There, the government argues that Price Waterhouse “adopted a ‘but-for’ causation standard for liability” and that Congress changed that standard by expressly adopting a motivating factor standard—“a textual command that departs from the default but-for rule.”

Second, the government claims that each of Babb’s historical arguments lacks merit, conceding only that the federal-sector ADEA was in fact modelled after Title VII’s federal-sector provision. As an initial matter, the government asserts that whether Congress intended to implement the Equal Protection Clause through Title VII has no bearing on the ADEA, and to the extent it does, the relevant constitutional provisions would require but-for causation for liability. In any event, the government insists that these arguments cannot be squared with Gross or Nassar. Resp. Brief at 34–36. The government next explains that Babb’s cited executive orders do not support her plea for a diminished causation standard in the federal sector, and more fundamentally, even if they did, they could not supersede the statutory text. The government then explains that there is no authority to show that Congress intended to codify the then-current Civil Service Commission regulations on which Babb relies.

Third, the government asserts that the EEOC regulations do not support Babb’s construction of Section 633a(a). The government then pivots to its more fundamental objection—that the EEOC regulations are not entitled to Chevron deference primarily because they cannot be squared with Section 633a(a)’s plain language, common-law principles, or the Court’s precedent. Resp. Brief at 45. The government adds that the regulations are also not relevant because they do not deal with the causation standard for liability and have been amended, and even if relevant, Babb’s construction of the regulation is not reasonable. Similarly, the EEOC’s adjudicated decisions on which Babb relies are inapposite. The government closes with a showing that Babb’s construction would create asymmetrical interpretations of federal discrimination law.

Both amici—the American Association of Retired Persons (AARP) and the National Treasury Employees Union (NTEU)—support petitioner Babb. AARP argues that Section 633a(a)’s plain language unambiguously calls for a “motivating factor” causation standard and that this construction of Section 633a(a) is supported by both the legislative history and every decisional authority that has grappled with that provision’s text. Similarly, the NTEU argues that Section 633a(a)’s plain language compels reversal. Indeed, if a “but-for causation” standard is adopted, “a plaintiff who fails to demonstrate that age was a determining factor but nonetheless shows that it was one of several factors would lose even though the challenged personnel action in that scenario was not ‘free from any discrimination.’” NTEU Brief at 5 (quoting Mabus). AARP further argues that this case is not controlled by Gross and Nassar, which construed the private-sector provisions of Title VII and the ADEA; Safeco, which construed the FCRA; or common-law default rules that favor a but-for causation standard.


This case potentially presents several high-stakes questions regarding older federal worker job security, intersectionality, textualism, and Chevron deference.

Resolving the causation standard under Section 633a(a) is important, especially to the 1.345 million federal employees over age 40. AARP Brief at 3 n. 4. Age discrimination is the most difficult type of discrimination to prove, and the federal workforce is an aging one. The Court here has occasion to make those cases more or perhaps less difficult to prove. And with the ever-increasing federal debt, the government may be looking for ways to shave its budget by eliminating the jobs of older workers, who often command higher wages because of longevity pay.

This case also gives the Court an opportunity to discuss the intersectionality of gender and age. As AARP points out, it is likely not coincidental that the plaintiff-petitioner here is an older female who was overlooked in favor of two younger men at the VA. Were this case to go to trial, evidence might be placed in the record showing that these two factors, gender and age, reinforced or even enhanced the discriminatory effect of the other.

This case could also serve as a vehicle for promoting the Court’s agenda on textualism, assuming such an agenda exists. Both parties claim that the text reigns supreme here. The very fact that both sides take a textualist approach with very few words wasted on the purpose of workplace discrimination laws, shows that counsel at least perceive the Court as highly receptive to the textualist approach. This case could give us a clue as to the textualist legacy that is likely to be a hallmark of the early twenty-first century Roberts Court.

Finally, this case presents an opening for the Court to discuss, and perhaps limit, Chevron deference. Although both parties claim that Chevron deference does not apply because their interpretation of the ADEA is plain—and therefore the Court can simply adopt that interpretation without regard to the agency’s view—the Court could decide that the phrase “based on” is in fact ambiguous. If so, we will learn less about the Court’s approach to textualism and more about its position on Chevron. Indeed, it might take the view that “based on” is not only ambiguous but that it is the Court’s job, not the agency’s, to disambiguate that statutory phrase.

Anne Marie Lofaso is the Arthur B. Hodges Professor of Law at the West Virginia University College of Law in Morgantown, WV. She can be reached at 304.293.7356 or anne.lofaso@mail.wvu.edu.

PREVIEW of United States Supreme Court Cases 47, no. 4 (January 13, 2020): 18–21. © 2020 American Bar Association


  • For Petitioner Noris Babb (Roman Martinez, Samir Deger-Sen, 202.637.2200)
  • For Respondent Robert Wilkie, Secretary of Veterans Affairs (Noel J. Francisco, Solicitor General, 202.514.2217)


In Support of Petitioner Noris Babb

  • National Treasury Employees Union (Gregory O’Duden, 202.572.5500)
  • AARP, AARP Foundation, Leadership Conference on Civil and Human Rights, National Women’s Law Center, NELA, and Employee Rights Advocacy Institute for Law and Policy (Daniel B. Kohrman, 202.434.2064)