Labor & Employment Law Daily SCOTUS: Under the ADEA’s federal sector provision, personnel actions must be ‘untainted by any consideration of age’
Wednesday, April 8, 2020

SCOTUS: Under the ADEA’s federal sector provision, personnel actions must be ‘untainted by any consideration of age’

By Kathleen Kapusta, J.D.

This does not mean, however, that a plaintiff who doesn’t prove but-for causation may obtain all forms of relief that are generally available for violations of Section 633a(a).

Addressing whether the ADEA’s federal sector provision imposes liability only when age is a “but-for cause” of a personnel action, the U.S. Supreme Court held that the provision “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.” However, wrote Justice Alito, “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.” Rather, to obtain this relief, a plaintiff must show that age was a but-for cause of the challenged employment decision. However, if age discrimination played a lesser part in the decision, other remedies may be appropriate. Justice Sotomayor filed a short concurring opinion, in which Justice Ginsburg joined. Justice Thomas dissented (Babb v. Wilkie, April 6, 2020, Alito, S.).

Personnel actions. The employee, a clinical pharmacist at a VA medical center, sued the Secretary of Veterans Affairs, claiming the VA, in taking various personnel actions, had subjected her to age discrimination in violation of ADEA Section 633a(a). Specifically, she claimed, the VA took away her “advanced scope” designation, which affected her promotion eligibility, denied her training opportunities and passed her over for positions in the hospital’s anticoagulation clinic, and placed her in a new position, which had a higher grade but which reduced her holiday pay.

Evaluating her claims under the McDonnell Douglas burden-shifting framework, the district court granted summary judgment against her claims, finding she had established a prima facie case, the Secretary had proffered legitimate reasons for the challenged actions, and the employee failed to show pretext. Although the Eleventh Circuit affirmed, holding that her argument was “foreclosed” by circuit precedent, it added that it might have agreed with her if it were “writing on a clean slate.” The Supreme Court granted certiorari to resolve a circuit split over the interpretation of Section 633a(a).

Section 633a(a). Section 633a(a) provides that “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.” The VA argued that the statutory provision imposes liability only when age is a but-for cause of an employment decision. And even if age played a part in the decision, the VA contended, relief is not available absent a showing that the decision would have been favorable if age had not been considered. The employee countered that because the provision prohibits any adverse consideration of age in the decisionmaking process, proof that age was a but-for cause of a challenged action is not needed.

Personnel decisions. Finding that the “plain meaning of the statutory 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),” the Court turned to each of the terms in the provision, noting first that while Section 633a(a) concerns “personnel actions,” the ADEA does not define this term. The Civil Service Reform Act, however, broadly defines a personnel action to include most employment-related decisions which, observed the Court, was consistent with the general usage of the term. Accordingly, the Court assumed that it has the same meaning under the ADEA.

Free from discrimination. Noting next that under §633a(a), personnel actions must be made “free from” discrimination, the Court pointed out that “free from” means “untainted” and 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.” Assuming that “discrimination” means “differential treatment,” the Court explained that under Section 633a(a), “the type of discrimination forbidden is ‘discrimination based on age,’ and ‘[i]n common talk, the phrase ‘based on’ indicates a but-for causal relationship.” Therefore, said the Court, Section 633a(a) requires that age be a but-for cause of the discrimination alleged.

Shall be made. Finally, as for the phrase “shall be made,” it is a form of the verb “to make,” the Court observed, and thus it means “shall be produced.”

Turning to the way the terms relate to each other, the Court explained that “based on age” is an adjectival phrase that modifies “discrimination,” not “personnel actions.” “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,” the Court stated. And because “free from any discrimination” is an adverbial phrase that modifies the verb “made,” “free from any discrimination” describes how a personnel action must be “made,” which, the Court stated, is in a way that is not tainted by differential treatment based on age. “This is the straightforward meaning of the terms of §633a(a), and it indicates that the statute does not require proof that an employment decision would have turned out differently if age had not been taken into account.”

Differential treatment, not ultimate decision. While the VA argued that discrimination based on age requires but-for causation and that discrimination means differential treatment, it wrongly concluded that “[i]t is thus not enough for a federal employer merely to consider age . . . 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.” “What follows instead,” said the Court, “is that, under §633a(a), age must be the but-for cause of differential treatment, not that age must be a but-for cause of the ultimate decision.”

Supreme Court decisions. In support of its position, the VA next pointed to three Supreme Court decisions interpreting different statutes, including Safeco Ins. Co. of America v. Burr, which interpreted a Fair Credit Reporting Act provision; Gross v FBL Financial Services, Inc., interpreting the private-sector provision of the ADEA; and University of Tex. Southwestern Medical Center v. Nassar, interpreting Title VII’s anti-retaliation provision. But the language at issue in Safeco was quite different from the language of Section 633a(a). As for Gross, the ADEA’s private- and public-sector provisions “are couched in very different terms.” Finally, the Court found the reasoning of Nassar inapplicable here. “The wording of §633a(a)––which refers expressly to the ‘mak[ing]’ of personnel actions in a way that is ‘free from any discrimination based on age’––is markedly different from the language of the statutes at issue in Gross and Nassar, and the traditional rule favoring but-for causation does not dictate a contrary result.”

Stricter standard. Nor was the Court persuaded by the VA’s assertion that it was inconsistent to hold the federal government to a stricter standard than private employers or state and local governments. When the ADEA was first enacted, it applied only to private employers and when Congress expanded its scope to cover state and local governments, it simply added them to the definition of “employer” in the ADEA’s private-sector provision. As for the federal sector, however, Congress “deliberately prescribed a distinct statutory scheme applicable only to the federal sector,” observed the Court, noting that “had it wanted to impose the same standard on all employers, it could have easily done so.”

Remedy. Finally, observed the Court, while an employee can establish that the employer violated Section 633a(a) without proving that age was a but-for cause of the personnel actions, but-for causation is important in determining the appropriate remedy. Because requested relief must address the alleged injury, “§633a(a) plaintiffs who demonstrate only that they were subjected to unequal consideration cannot obtain reinstatement, back-pay, compensatory damages, or other forms of relief related to the end result of an employment decision.” Instead, held the Court, “To obtain such remedies, these plaintiffs must show that age discrimination was a but-for cause of the employment outcome.”

Noting that this conclusion is supported by traditional principles of tort and remedies law, and that remedies should not put a plaintiff in a better position than she would have enjoyed absent discrimination, the Court observed that this is what would happen if employees “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.” 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, said the Court. In that situation, plaintiffs can seek injunctive or other forward-looking relief. And here, determining what relief if any is appropriate is a matter for the district court to decide if the employee can show that Section 633a(a) was violated.

Dissent. Justice Thomas asserted that “Until now, the rule for pleading a claim under a federal antidiscrimination statute was clear: A plaintiff had to plausibly allege that discrimination was the but-for cause of an adverse action, unless the statute’s text unequivocally replaced that standard with a different one. Today, however, the Court departs from this rule, concluding that the federal-sector provision of the Age Discrimination in Employment Act of 1967 (ADEA) imposes liability if an agency’s personnel actions are at all tainted by considerations of age.” Under this broad new rule, he continued, a plaintiff could sue even if 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.”

According to Justice Thomas, the default rule of but-for causation applied here because it was not clearly displaced by Section 633a(a). At most, he argued, the provision’s substantive mandate against discrimination is ambiguous. “And it goes without saying that an ambiguous provision does not contain the clear language necessary to displace the default rule.”

Further, he argued, the Court tried to downplay the “sweeping nature of its novel ‘any consideration’ rule by discussing the limited remedies available under that rule.” However, he asserted, “the Court implausibly concludes that, in the federal-sector provision of the ADEA, Congress created a novel ‘any consideration’ causation standard but remained completely silent as to what remedies were available under that new rule. Just as implausibly, the Court assumes from this congressional silence that Congress intended for judges to craft a remedial scheme in which the available relief would vary depending on the inflicted injury, using an as-yet- unknown scheme.”

Declaring that he “would not follow such an unusual course,” Justice Thomas argued that “Perhaps the most striking aspect of the Court’s analysis is its failure to grapple with the sheer unworkability of its rule.” The Court’s holding, he asserted, “unnecessarily risks imposing hardship on those tasked with managing thousands of employees within our numerous agencies.”

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