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Federal Workers Can Sue Over Any Age Bias In Employment Action

April 6, 2020 by Dan McCue
U.S. Dept. of Veterans Affairs. (Photo by Dan McCue)

WASHINGTON – The U.S. Supreme Court ruled Monday that the Age Discrimination and Employment Act allows federal employees to sue over any age bias inferred by an adverse employment action — even when that bias isn’t the driving factor behind a decision.

The petitioner, Noris Babb, worked as a clinical pharmacist at the U.S. Department of Veterans Affairs Medical Center in Bay Pines, Florida.

While there, she helped develop the Geriatric Pharmacotherapy Clinic, which serves older veterans with diseases or disabilities common to individuals of advanced age with military service.

In 2009, the agency gave Babb full practice authority to prescribe medications without a physician, which was necessary for her position.

A year later, the VA rolled out a nationwide treatment initiative similar to the program Babb had helped develop, but in implementing the program, and despite requests from doctors and others, the agency declined to grant full practice authority to several of the pharmacists in the new program.

As it happened, all of the pharmacists adversely impacted by this decision were women over 50. In the meantime, the agency granted the applications of two other pharmacists, both of whom were under 40.

Two of the women denied full practice authority filed Equal Employment Opportunity complaints against the VA, and Babb testified on their behalf.

From that time forward, Babb said, she was denied opportunities to participate in the new program and she was forced to make unworkable decisions for her department.

Unable to meet these new requirements, Babb’s full practice authority was rescinded and she was consequently disqualified from future promotions.

Babb sued the VA under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 alleging that she was the victim of gender-plus-age discrimination and that the VA retaliated against her for participating in protected EEO in violation of those laws.

The district court granted summary judgment for the VA.

On appeal to the 11th U.S. Circuit Court of Appeals Babb argued that the district court erred in part by not allowing her to prove that illegal discrimination or retaliation was a “motivating factor” behind the VA’s refusal to promote her.

The 11th Circuit affirmed the lower court, finding itself bound by precedent that federal sector employees’ claims under ADEA and Title VII require that the plaintiff show discrimination or retaliation is a “but for” factor in the adverse personnel action.

In other words, “but for” her age, she would not have been subjected to this employment action.

But the high court held Monday that the plain meaning of the law demands that actions be untainted by “any” consideration of age. To obtain reinstatement, damages, or other relief related to the end result of an employment decision, a showing that a personnel action would have been different if age had not been taken into account is necessary, but if age discrimination played a lesser part in the decision, other remedies may be appropriate.

The ruling was written by Justice Samuel Alito, and joined by Chief Justice John Roberts and Associate Justices Stephen Breyer, Sonya Sotomayor, Elena Kagan, Neil Gorsuch and Brett Kavanaugh. Justice Ruth Bader Ginsburg joined the decision, but disagreed with one of its footnotes.

Justice Sotomayor filed a concurring opinion, in which Justice Ginsburg joined.

The lone dissenter was Justice Clarence Thomas who said if the majority’s interpretation of the Age Discrimination in Employment Act of 1967 “is so broad that a plaintiff could bring a cause of action even if he is ultimately promoted or hired over a younger applicant.

“This novel ‘any consideration’ standard does serious damage to our interpretation of antidiscrimination statutes and disrupts the settled expectations of federal employers and employees. I therefore respectfully dissent,” Thomas said.

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