On January 15, 2020, the U.S. Supreme Court heard oral argument in the case of Noris Babb v. Robert Wilkie, Secretary of Veterans Affairs, No. 18-882. Here is the transcript of the argument.
The statute at issue, 29 USCA § 633a, titled “Nondiscrimination on account of age in Federal Government employment”, provides in part:
(a) … 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. [Emphasis added.]
The Question Presented here is:
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.
Notably, the “but for” causation standard – applicable in private-sector age discrimination cases under the ADEA – is more stringent than the “motivating factor” standard, which is available for status-based discrimination claims under Title VII of the Civil Rights Act of 1964.