How can Federal Employees Establish Age Discrimination Under the ADEA?

In Babb v. Wilke, Secretary of Veterans Affairs, the United States Supreme Court confirmed the applicable standard for imposing liability against federal-sector employers under the Age Discrimination in Employment Act. This standard is more lenient than the “but for causation” standard applicable in claims brought against private-sector employers under the ADEA.  

Specifically, the Supreme Court noted that the applicable federal-sector provision of the ADEA  “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.’” Accordingly, the Court held that “[i]f 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.” Thus, if a federal employee establishes that age played any part in the decision at issue, age discrimination can be established.  

The Supreme Court recognized that this test is less burdensome than the “but for causation” standard required to establish liability for age discrimination in claims brought by private-sector employees, but explained that the distinction was based on the differing language applicable to private and public-sector employers as found in the ADEA. 

Although not requiring federal employees to meet the more rigorous “but for causation” standard to establish liability, the Court clarified that without such a finding, the employee would not be entitled “to obtain all forms of relief that are generally available for a violation of §633a(a), including hiring, reinstatement, back pay, and compensatory dam­ages." Instead, if the federal worker is only able to show that age discrimination played a lesser part in the decision, the Court recognized that lesser remedies such as “injunctive or other forward-looking re­lief” may be appropriate.