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Tuesday, August 18, 2020

Age Discrimination Claims Clarified as to ADEA Standards Between Federal and Private Sectors Part I

The Age Discrimination in Employment Act of 1967 (ADEA) protects applicants and employees who are 40 years of age or older from employment discrimination based on age. The ADEA applies to private employers with 20 or more employees, state and local governments, employment agencies, labor organizations and the federal government.

In a recent case brought by a federal worker under the ADEA, in the ruling by the US Supreme Court in Babb v. Wilkie, 140 S. Ct. 1168 (2020), the Court overturned the federal appeals court, the Eleventh Circuit, and allowed a pharmacist’s case to continue. Noris Babb worked at a U. S. Department of Veterans Affairs Medical Center as a clinical pharmacist. She brought her case under the Age discrimination in Employment Act of 1967 (ADEA) and sued the Secretary of Veterans Affairs (“VA”) for age discrimination.

Background of Babb v. Wilkie, 140 S. Ct. 1168.

Noris Babb was born in 1960 and worked as a clinical pharmacist at the U. S. Department of Veterans Affairs Medical Center in Bay Pines, Florida. She brought suit in 2014 against the Secretary of Veterans Affairs (hereinafter VA). Noris Babb claimed she had been subjected to age and sex discrimination, as well as retaliation for engaging in activities protected by federal anti-discrimination law.

At the lower District Court level, her employer, the  VA, offered nondiscriminatory reasons for the challenged actions and moved for moved for summary judgment. When a defendant moves for summary judgment in a civil case, they are attempting to persuade the court that the material facts are not in dispute, and  that the undisputed material facts require the court to enter judgment in their favor, precluding a trial, since there are no facts to be later decided by a jury.

The  District Court found that although Babb had established sufficient a facts to assert an ADEA claim, it nevertheless  granted the VA's motion for summary judgment because it found that the VA had proffered legitimate reasons for the challenged actions, The  District Court found that no jury could reasonably conclude that the employer's reasons were a bogus excuse or were pretextual.

On appeal in the Eleventh Circuit, Babb argued according to 29 U. S. C. §633a(a) , that most federal-sector "personnel actions" affecting individuals aged 40 and older must be made free from any discrimination based on age, and a “personnel” action is unlawful if age is a factor in the challenged decision. 

She contended the District Court's requirement that age be a but-for cause of a personnel action was inappropriate under the federal-sector provision of the ADEA, §633a(a) . Therefore, even if the VA's proffered reasons  in her case were not bogus or pretextual, it would not necessarily follow that age discrimination played no part. The Eleventh Circuit found her argument was foreclosed by Circuit precedent and upheld the lower court decision

Only her age-discrimination claims went before the US Supreme Court.

In an 8 to 1 decision, the Supreme court reversed the Circuit decision and remanded the case to the lower court so that her claim could go forward.

Her claims centered on three personnel actions:

  • First, her employer, the VA, took away her  "advanced scope" designation in 2013, , which had made her eligible for promotion on the Federal Government's General Scale from  a GS-12 to a GS-13.
  • Second, she was denied training opportunities and was passed over for positions in the hospital's anticoagulation clinic during this same time period,
  • Third, a year later, she was placed in a new position, and while her grade was raised to GS-13, her holiday pay was reduced.

Noris Babb claimed all these actions involved age discrimination and in support of her claims, she alleged, among other things, that supervisors made a variety of age-related comments.

The  US Supreme Court was asked to decide whether when personnel actions are in question if this language imposes liability on the federal employer only when age is a "but-for cause" of the complained of personnel action. The Court referenced that the federal-sector provision of the Age Discrimination in Employment Act provides with certain exceptions that "personnel actions" affecting individuals aged 40 and older shall be made free from any discrimination based on age.

The Court held that in an ADEA suit, under the plain meaning of 29 U.S.C.S. § 633a(a), which concerned personnel actions,  if age discrimination played any part in the manner in which the employer's decision was made, then the decision was not made in a way that was untainted by such discrimination.

Earlier in 2009, in Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009, the US Supreme Court held that, to succeed in an ADEA claim against a private employer, a plaintiff must prove by a preponderance of the evidence that the employer would not have taken the alleged adverse employment action but-for the individual’s age. The Gross decision was based on 29 U.S.C. § 623(a)(1), which prohibits private sector employers from taking an adverse employment action against an individual “because of such individual’s age.”

In Babbs, Supreme Court stated there were differences if a person files an ADEA claim against a private employer under 623(a)(1) or against the Federal government under 633a(a).

Justice Alito delivered the opinion of the Court:

 “The federal-sector provision of the Age Discrimination in Employment Act of 1967 (ADEA), 88 Stat. 74, 29 U. S. C. §633a(a), provides (with just a few exceptions) that "personnel actions" affecting individuals aged 40 and older "shall be made free from any discrimination based on age." We are asked to decide whether this provision imposes liability only when age is a "but-for cause" of the personnel action in question.

We hold that §633a(a) goes further than that. The plain meaning of the critical statutory language ("made free from any discrimination based on age") demands that personnel actions  be untainted by any consideration of age. This does not mean that a plaintiff may obtain all forms of  relief that are generally available for a violation of §633a(a), including hiring, reinstatement, backpay, and compensatory damages, without showing that a personnel action would have been different if age had not been taken into account. To obtain such relief, a plaintiff must show that age was a but-for cause of the challenged employment decision. But if age discrimination played a lesser part in the decision, other remedies may be appropriate.”

The Supreme Court distinguished the ADEA provisions applicable to private sector employers and those ADEA provisions applicable to the federal government that require the government to make personnel decisions, “free from any discrimination based on age.” 29 U.S.C. 633a(a). Therefore, the Court held, a plaintiff may successfully pursue an ADEA claim against the federal government by proving that age was a motivating factor behind the government’s adverse employment action.

This is true even if the claimant cannot prove that the outcome would have been different had age not been taken into account. The Court held that the language of the ADEA statute demonstrated that Congress intended to apply a different standard to the federal government in an ADEA claim than for the standard applied to a private employer in an ADEA claim.

The Court clarified that a federal employee may receive only back pay and compensatory damages from the federal government if he or she proves that age was the but-for cause of an adverse personnel action. An individual who proves only that age was a motivating factor behind an adverse action may still receive “forward-looking relief,” such as an injunction against the adverse action. The Court held that federal workers may state a claim for liability under the ADEA by proving that age played a factor in the plaintiff’s personnel decision. In its decision, the Court held, plaintiffs would be limited to prospective injunctive relief only, unless they meet the higher standard of proof that the discriminatory action would not have occurred “but for” age discrimination.

Note: New Jersey victims of age discrimination in private employment or employed by a municipal, county or state entity may file an age discrimination lawsuit directly and more quickly in New Jersey Superior Court under the New Jersey Law Against Discrimination without having to first exhaust the time-consuming filing and process of an administrative ADEA (Age discrimination in Employment Act of 1967)  claim with an agency before getting to court.

Don’t Sit on Your Rights

If you think you are being discriminated against because of age or that your boss may be getting ready to terminate you because of your age, it is important to consult with an experienced age discrimination attorney to determine what your options are.

What You Can Do

If you believe that your employer used, or may use,  age as the determining factor as to who to keep and who to let go, it is important that you consult with an attorney who is experienced in age discrimination. I am an aggressive and compassionate employment law attorney who is experienced in representing older workers.

If you are being subjected to such unlawful workplace discrimination, contact Hope A. Lang, Attorney at Law today for a free consultation.

Hope A. Lang, Attorney at Law serves clients throughout New Jersey, including Bergen, Middlesex, Essex, Hudson, Monmouth, Ocean, Union, Camden, Passaic, and Morris Counties with locations in Central, Western and Northern NJ to meet with clients.



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