18-882
Issues
To prove a violation of the federal-sector provision of the Age Discrimination in Employment Act, must a plaintiff prove that age discrimination was a but-for cause of an adverse employment action or merely a motivating factor?
This case asks the Supreme Court to determine whether, under Section 633a(a) of the Age Discrimination in Employment Act of 1967 (“ADEA”), federal-sector plaintiffs must show that age discrimination was the but-for cause of an adverse employment action, or whether federal-sector plaintiffs must merely show that their age was a motivating factor for the adverse action. Section 633a(a) states that employment decisions affecting employees or applicants at least 40 years of age “shall be made free from any discrimination based on age.” Noris Babb, a clinical pharmacist, sued Secretary of the Department of Veterans Affairs (“VA”) Robert Wilkie alleging, among other claims, age and gender discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and the ADEA after she was denied a promotion, training, and two clinic positions. Babb argues that Section 633a(a) requires her only to prove that age was a motivating factor in the VA’s adverse personnel decisions. Wilkie, on the other hand, contends that Section 633a(a) requires Babb to prove that age was the but-for cause of—that is, the actual reason for—the employment decisions. This case has implications on the ability of federal-sector workers to prove age discrimination claims under the ADEA.
Questions as Framed for the Court by the Parties
Whether the federal-sector provision of the Age Discrimination in Employment Act of 1967, which provides that personnel actions affecting agency employees aged 40 years or older shall be made free from any “discrimination based on age,” 29 U.S.C. § 633a(a), requires a plaintiff to prove that age was a but-for cause of the challenged personnel action.
In 2004, Noris Babb joined the C.W. “Bill” Young Veterans Affairs (“VA”) Medical Center’s Pharmacy Services division in Bay Pines, Florida as a clinical pharmacist. Babb v. Wilkie at 2–3. Two years later, Babb began working as a geriatrics pharmacist in the Medical Center’s Geriatric Clinic, a position governed by a service agreement between the Pharmacy Services division and the Geriatric Clinic. Id. at 3.
Written by
Edited by
The authors would like to thank Professor Angela B. Cornell for her guidance and insights into this case.
Additional Resources
- Rachel Alpert, Babb v. Wilkie and the Future Viability of Statutory Discrimination Claims, Harvard Civil Rights-Civil Liberties Law Review (Oct. 5, 2019).
- Erich Wagner, Trump Administration Urges Supreme Court to Maintain Strict Burden of Proof for Age Discrimination Cases, Government Executive (Nov. 25, 2019).
- Pamela Wolf, Supreme Court to Determine Whether ‘But-For’ Causation Required in Federal-Sector ADEA Claims, Employment Law Daily (2019).