A pair of recent appellate decisions makes clear that the burden of proof for establishing a claim for age discrimination against a federal government entity is somewhat lower than the more stringent standard which applies to state and local governments, as well as private employers. Decisions by the U.S. Supreme Court and the 1st Circuit Court of Appeals establish that a plaintiff seeking recovery under the Age Discrimination in Employment Act (ADEA) need only prove that age was merely one of the factors considered in connection with an adverse employment action by an employer in the “federal sector,” while a plaintiff asserting a claim against any other government entity or private employer must go further, and prove that age was the “but-for cause” of the employer’s decision.
In Babb v. Wilkie, 140 S.Ct. 1168 (2020), the 53-year-old plaintiff worked as a clinical pharmacist at a U.S. Department of Veteran Affairs Medical Center. Babb claimed that over a two-year period, the VA took away a designation which made her eligible for a promotion, denied her training opportunities, passed her over for other positions, and reduced her holiday pay. Babb filed suit under the federal provision of the ADEA against the VA claiming, among other things, she was subject to age discrimination.
The Supreme Court granted certiorari to resolve a split among the appellate courts in the various federal circuits regarding the proper interpretation of the ADEA’s federal sector provision, which provides that personnel decisions made by federal government entities must be made “free from any discrimination based on age.” Following a thorough analysis of the syntax of the statutory language, the Court determined that Babb need only show that age was merely a factor in the employment decisions in order to establish liability. The Court recognized, however, that the statutory language applicable to other entities was different, and that a plaintiff filing suit against a private employer or state and local governments would need to show that age was the but-for cause of the employer’s decision.
Less than six weeks after the Supreme Court’s ruling, the First Circuit Court of Appeals affirmed the but-for causation standard for private entities. In Zabala-De Jesus v. Sanofi-Aventis Puerto Rico, Inc., 959 F.3d 423 (1st Cir. 2020), the plaintiff filed suit against his former employer alleging that when two positions in his company were consolidated into one, he was terminated in favor of the younger employee. However, the employer was able to show that before Zabala-De Jesus was terminated, it had conducted an extensive examination of the two employees in consideration for the new role. Unfortunately for the plaintiff, his performance reviews and experience with the company did not stack up to the other, younger candidate. The 1st Circuit held that in light of the thoughtful consideration of the candidates’ qualifications, the employer had shown a “legitimate, non-discriminatory reason” for the decision, and the plaintiff could not meet his burden to show that the employer’s rationale was merely a pretext for discrimination, and that his age was the true reason for the adverse action.
While the First Circuit decision in Zabala-De Jesus does not mention the Supreme Court’s decision in Babb, it supports the conclusion that the “but-for” standard of causation continues to apply outside the context of the federal sector provision in the ADEA. Nevertheless, any employer hoping to steer clear of a discrimination claim would be wise to avoid any consideration of an employee’s age in making employment decisions.