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Tuesday, August 25, 2020

Age Discrimination ADEA Claims Clarified, Part II

In New Jersey, a plaintiff may file an age discrimination claim under the the New Jersey Law Against Discrimination ( “NJLAD”) in state court without having to first exhaust the time consuming administrative process required by the Age Discrimination in Employment Act (ADEA). The NJLAD is a New Jersey state law that applies to private, municipal, county and state employers, all employers in New Jersey (except for certain federal employers).

In the recent ruling in Babb v. Wilkie, 140 S. Ct. 1168, the US Supreme Court demonstrated that whether a case under the Age Discrimination in Employment Act (ADEA) can proceed is dependent on fine nuances in syntax and phrasing within the statute to evince the intent of Congress in enacting the statute. The Court granted certiorari ( accepted the case)  to resolve a Circuit split over the interpretation of §633a(a) in the statute.

Justice Alito delivering  the opinion of the Court stated that provision of the ADEA states in relevant part: “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.” 29 U. S. C. §633a(a).

Justice Alito described that the employer, the US Government, interprets §633a(a) to impose liability only when age is a but-for cause of an employment decision. According to the VA’s argument,  even if age played a part in such a decision, an employee or applicant for employment cannot obtain any relief unless it is shown that the decision would have been favorable if age had not been taken into account. The Government contended this interpretation arises from the statutory text and from the “default rule” that the Supreme Court  recognized in other employment discrimination cases, i.e., that recovery for wrongful conduct is generally permitted only if the injury would not have occurred but for that conduct, citing a 2013 case, University of Tex. Southwestern Medical Center v. Nassar.

Here the Federal employee, Babbs, argued that the interpretation of  the provision differently, i.e., that its language prohibits any adverse consideration of age in the decision-making process.  Babbs argued proof that age was a but-for cause of a challenged employment decision is not needed.

Here the court had to decide if the government or the employee’s interpretation is correct. The Court relied on the text of the ADEA, and its former case, Gross v. FBL Financial Services, Inc., and decided it was not necessary to go any further. It held that  plain meaning of the ADEA text shows that age need not be a but-for cause of an employment decision in order for there to be a violation of §633a(a).

To explain its conclusion, the court  defined the important terms in the ADEA and how they relate to each other. Its opinion stated:

“ 1.)  Section 633a(a) concerns “personnel actions,” and while the ADEA does not define , this term, its meaning is easy to understand. The Civil Service Reform Act of 1978, which governs federal employment, broadly defines a “personnel action” to include most employment-related decisions, such as appointment, promotion, work assignment, compensation, and performance reviews. That interpretation is consistent with the term’s meaning in general usage, and the Court assume that it has the same meaning under the ADEA.

Under §633a(a), personnel actions must be made “free from” discrimination. The phrase “free from” means “untainted” or “[c]lear of (something which is regarded as objectionable).” Citing Webster’s Third New International Dictionary .... American Heritage Dictionary .... (defining “free” “used with from” as “[n]ot affected or restricted by a given condition or circumstance”); Random House Dictionary of the English Language ... (defining “free” as “exempt  or released from something specified that controls, restrains, burdens, etc.”). Thus, under §633a(a), a personnel action must be made “untainted” by discrimination based on age, and the addition of the term “any” (“free from any discrimination based on age”) drives the point home. ......... What remains is the phrase “shall be made.” “[S]hall be made” is a form of the verb “to make,” which means “to bring into existence,” “to produce,” “to render,” and “to cause to be or become.” Random House Dictionary of the English Language... Thus, “shall be made” means “shall be produced,” etc. And the imperative mood, denoting a duty, see Black’s Law Dictionary 1233 (5th ed. 1979), emphasizes the importance of avoiding the taint....

2)... What really matters for present purposes is the way these terms relate to each other. Two matters of syntax are critical. First, “based on age” is an adjectival phrase that modifies the noun “discrimination.” It does not modify “personnel actions.” The statute does not say that “it is unlawful to take personnel actions that are based on age”; it says that “personnel actions . . . shall be made free from any discrimination based on age.” §633a(a). As a result, 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.

Second, “free from any discrimination” is an adverbial phrase that modifies the verb “made.” Ibid. Thus, “free from any   discrimination” describes how a personnel action must be “made,” namely, in a way that is not tainted by differential treatment based on age. If age discrimination plays any part in the way a decision is made, then the decision is not made in a way that is untainted by such discrimination.

The Court relied on the plain meaning of the terms of §633a(a), that the statute does not require proof that an employment decision would have turned out differently if age had not been taken into account. However, it distinguished the ADEA against the government in claims brought against the private sector and it discussed  §623(a)(1). In Gross v. FBL Financial Services, Inc., the Court had interpreted the private-sector provision of the ADEA, 29 U. S. C. §623(a)(1),  and held that it requires a plaintiff to prove that “age was the ‘but-for’ cause  of the employer’s adverse action,” but as it had previously recognized, the ADEA’s private sector 623(a)(1) and public (government) sector  §633a(a)  provisions are couched in very different terms.

Section 623(a)(1) as to the private sector makes it “unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” Thus, the but-for causal language in §623(a)(1)—“because of such individual’s age”—is an adverbial phrase modifying the verbs (“to fail or refuse to hire,” etc.) that specify the conduct that the provision regulates. For this reason, the syntax of §623(a)(1) as to the private sector is critically different from that of §633a(a), where, as noted, the but-for language modifies the noun “discrimination.” This is important because all the verbs in §623(a)(1)—failing or refusing to hire, discharging, or otherwise discriminating with respect to “compensation, terms, conditions, or privileges of employment”—refer to end results... By contrast, the provision in our case, §633a(a), prohibits any age discrimination in the “mak[ing]” of a personnel decision, not just with respect to end results.

The Court also relied on  traditional principles of tort and remedies law. “Remedies generally seek to place the victim of a legal wrong . . . in the position that person would have occupied if the wrong had not occurred.”...Thus, “[a]n actor’s liability is limited to those harms that result from the risks that made the actor’s conduct tortious.” ......Remedies should not put a plaintiff in a more favorable position than he or she would have enjoyed absent discrimination. But this is precisely what would happen if individuals who cannot show that discrimination was a but-for cause of the end result of a personnel action could receive relief that alters or compensates for the end result.”

The court further stated that although unable to obtain such relief, plaintiffs are not without a remedy if they show that age was a but-for cause of differential treatment in an employment decision but not a but-for cause of the decision itself. In that situation, plaintiffs can seek injunctive or other forward-looking relief. Determining what relief, if any, is appropriate in the present case is a matter for the District Court to decide in the first instance if Babb succeeds in showing that §633a(a) was violated.”

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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