Contrasting Standards of Proof for Discrimination Claims

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After Recently Applying Stricter Standard to Show Race Discrimination in Contracts, U.S. Supreme Court Applies More Moderate Rule for Federal Employees Claiming Age Discrimination

On April 6, the U.S. Supreme Court ruled in Babb v. Wilkie that federal employees are not required to show “but-for” causation in age discrimination claims under the Age Discrimination in Employment Act of 1967 (ADEA). This ruling differs from the rule typically applied, and provides federal workers with remedies such as front pay when they are able to show that age played a role in their employer’s personnel decision.

(As we recently explained in our prior blog here the stricter “but-for” standard was recently applied by the Supreme Court to a case alleging race discrimination led Comcast to refuse to enter into a contract with a minority owned cable network).

In the Babb case, the law states that personnel decisions affecting federal employees who are at least 40 years old must be made “free from any discrimination based on age.” Traditionally a “but-for” standard has been applied – essentially requiring the employee to show that if not for their age, the damaging personnel decision would not have been made. This is the standard that still applies to state, local, and private-sector employees.

The U.S. Supreme Court moved away from the traditional “but-for” rule for federal employees. The plaintiff, born in 1960, alleged that she was denied a promotion, training, and docked holiday pay because of her age and gender. The Court decided that if age plays any role when the ultimate decision is made, age does not need to be the only reason for the ultimate decision. Instead, age has to be a but-for cause of the differential treatment of the federal employee.

These probably sound like the same thing – how can treating an employee differently because of her age be separated from the “ultimate decision” like denial of a promotion or termination? Consider the hypothetical used by the Supreme Court in its decision. Imagine that an employer is deciding to promote Employee A (35 years old) or Employee B (50 years old). Under that employer’s policy, candidates for promotion are given scores based on non-discriminatory factors, but employees over 40 are docked 5 points. If Employee A receives a score of 90, and Employee B receives a score of 85 and then is docked 5 more points, Employee A is promoted. This would constitute “differential treatment,” because it included the discriminatory action of reducing an employee’s score because of her age. The “ultimate decision” to promote Employee A, however, is simply based on the numerical scores.

Ultimately, the Supreme Court’s ruled that in age discrimination cases brought by federal employees under the ADEA, age need only play some role in the “ultimate decision” for age discrimination claims to succeed. Federal employees may have fewer options for relief than plaintiffs who can establish the “but-for” standard, but they are no longer denied relief under the ADEA if the decision is “[t]ainted by any consideration of age.” For federal employees, this means that even if they cannot prove age bias was the sole reason for the ultimate decision of their employer, federal employers will be held responsible if they make employment decisions with age-based bias playing any role in the decision.

For another analysis of Babb v. Wilkie, see the opinion analysis SCOTUS blog.