On April 6, 2020, the U.S. Supreme Court decided Babb v. Wilkie, holding that the federal-sector provision of the Age Discrimination and Employment Act of 1967 (ADEA), 29 U.S.C. §633a(a), does not require proof that age discrimination was the “but-for cause” of the personnel action.Noris Babb, a Veterans Administration (VA) employee, brought several age-discrimination claims against the VA.

Members of the D.C. District Court remain divided on the issue. In Breen v. Peters, the court concluded that 29 U.S.C. § 633a, the section prohibiting age discrimination in federal employment, did not preserve sovereign immunity against disparate impact claims because the text of the section prohibits discrimination, not intentional discrimination. 474 F. Supp. 2d 1, 6 (D.D.C. 2005).

In addition, a plaintiff must file a charge of discrimination with the EEOC prior to suing in federal court under Title VII within 300 days of the alleged discriminatory act. In contrast, under §1981, a plaintiff may file a lawsuit immediately, and has four years in which to do so. Gómez-Pérez v. Potter: The Age CaseIn Potter, the Supreme Court was called upon to determine whether the ADEA’s federal sector provision, 29 U.S.C. § 633a(a), which—unlike the Act's private sector provision—does not explicitly mention retaliation, permits federal employees to bring retaliation claims. Justice Alito, writing for the majority of the Court, concluded that §633a(a), which requires that “[a]ll personnel actions affecting employees… at least 40 years of age… be made free from any discrimination based on age,” encompasses retaliation claims.

Babb v. Wilkie 589 U.S. __ (2020).In Babb, the Court was asked to decide whether the provision of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §633a(a), that covers federal employers imposes liability only when age is a “but for cause” of the personnel action in question. The case involved a clinical pharmacist who alleged the VA denied her promotion opportunities because of her age.In an 8-1 vote on April 6, 2020, the Court ruled that in §633a(a), which provides that “personnel actions” affecting employees or applicants aged 40 and older “shall be made free from any discrimination based on age,” Congress emphasized the importance of federal employers taking personnel actions that are not tainted by differential treatment because of age.

By comparison, the federal-sector provision of the ADEA, which applies to employees of the federal government, states:“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.” 29 U.S.C. § 633a(a) (emphasis added).Noris Babb, a clinical pharmacist employed for 16 years at a U.S. Department of Veterans Affairs Medical Center sued the Secretary of Veterans Affairs (VA) for age discrimination, gender discrimination and retaliation, challenging a number of adverse employment actions.The VA moved for summary judgment, and the District Court granted the VA’s motion after finding that no jury could reasonably conclude that the VA’s legitimate, non-discriminatory reasons for the challenged actions were pre-textual.

As opposed to private sector employees covered by § 623, federal employees “shall be made free from any discrimination based on age.” 29 U.S.C. § 633a(a) (emphasis added). The essential question at issue in Babb was whether this language requires “but for” causation or imposes another standard for liability.

Grounds: Congress effectively waived sovereign immunity for ADEA suits. Nevertheless, Congress did not include specific protection into section 15 of the ADEA (29 U.S.C. § 633a) covering the federal sector covering retaliiation: "The absence of statutory language providing a claim for retaliation in § 633a, when compared with the explicit prohibition on retaliation in § 623(d), further supports the conclusion that Congress intended for the ADEA to prohibit retaliation by private employers, but not by federal employers." Notes split with D.C. Circuit on latter issue.Velázquez-Fernández v. NCE Foods, Inc., 476 F.3d 6, 99 FEP 1031 (1st Cir. 2007) . Panel: STAHL, Torruella, Baldock.

Considering the firestorm kicked off three terms ago in Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005) -- a bitterly-fought 5-4 decision finding a private right of action for retaliation under Title IX -- and the intervening change in the Court's make-up, I expected an equally tough fight after the Court decided to accept not one, but two retaliation cases raising the same issue. Instead, we get calm reassurance from the majority and mere annoyance by the unreconciled dissenters (Justices Scalia and Thomas, joined by Chief Justice Roberts on the Gomez-Perez case).Gomez-Perez, which seemed the tought of the two cases, involved the ADEA section for federal-sector employees (29 U.S.C. § 633a), which provides relief for age discrimination but omits any mention of retaliation. The First Circuit held that the omission was fatal to the employee's claim that she was harassed, ostracized and denied overtime after filing an age-discrimination complaint against the Postal Service.

Grounds: Congress effectively waived sovereign immunity for ADEA suits. Nevertheless, Congress did not include specific protection into section 15 of the ADEA (29 U.S.C. § 633a) covering the federal sector covering retaliiation: "The absence of statutory language providing a claim for retaliation in § 633a, when compared with the explicit prohibition on retaliation in § 623(d), further supports the conclusion that Congress intended for the ADEA to prohibit retaliation by private employers, but not by federal employers." Notes split with D.C. Circuit on latter issue.Velázquez-Fernández v. NCE Foods, Inc., 476 F.3d 6, 99 FEP 1031 (1st Cir. 2007) . Panel: STAHL, Torruella, Baldock.

The decision in Gross was based on the language of 29 U.S.C. § 623(a)(1), which prohibits private sector employers from taking an adverse employment action against an individual “because of such individual’s age.”In contrast to the ADEA provisions applicable to private sector employers, those applicable to the federal government require the government to make personnel decisions “free from any discrimination based on age.” 29 U.S.C. 633a(a). Therefore, the Court held, a plaintiff may successfully pursue an ADEA claim against the federal government by proving that age was a motivating factor behind the government’s adverse employment action.