In Babb v. Wilkie, 2020 WL 1668281 (U.S. April 6, 2020), the U.S. Supreme Court interpreted the federal-sector provision of the Age Discrimination in Employment Act of 1967 (ADEA), 88 Stat. 74, 29 U.S.C. § 633a(a). That section provides, in relevant part: “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.”
The Government interprets this provision to impose liability only when age is a but-for cause of an employment decision, such that even if age played a part in such a decision, an employee or applicant for employment cannot obtain any relief unless it is shown that the decision would have been favorable if age had not been taken into account.
The petitioner, Babb, asserts that the statutory language prohibits any adverse consideration of age in the decision-making process, such that proof that age was a but-for cause of a challenged employment decision is not needed.
In rendering its decision, the Court begins (and ends) with the text of the statute, holding that “[t]he plain meaning of the statutory text shows that age need not be a but-for cause of an employment decision in order for there to be a violation of § 633a(a).” :
After defining the statutory terms ‘personnel actions”, “free from”, “discrimination based on age”, and “shall be made”, the court turned to the critical issue of how these terms relate to one other.
Two matters of syntax are critical. First, “based on age” is an adjectival phrase that modifies the noun “discrimination.” It does not modify “personnel actions.” The statute does not say that “it is unlawful to take personnel actions that are based on age”; it says that “personnel actions … shall be made free from any discrimination based on age.” § 633a(a). As a result, age must be a but-for cause of discrimination—that is, of differential treatment—but not necessarily a but-for cause of a personnel action itself.
Second, “free from any discrimination” is an adverbial phrase that modifies the verb “made.” Thus, “free from any discrimination” describes how a personnel action must be “made,” namely, in a way that is not tainted by differential treatment based on age. If 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.
This is the straightforward meaning of the terms of § 633a(a), and it indicates that the statute does not require proof that an employment decision would have turned out differently if age had not been taken into account.
Having thus parsed the statutory text, the Court distinguished cases cited by the Government, including Gross v. FBL Financial Services, Inc., 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009), which interpreted the ADEA’s private-sector provision (29 U.S.C. § 623(a)(1)).
However, while concluding that a violation of § 633a(a) does not require a showing of but-for causation, the Court – citing the “bedrock law that ‘requested relief’ must ‘redress the alleged injury'” – explained that but-for causation is still relevant to the appropriate remedy:
Thus, § 633a(a) plaintiffs who demonstrate only that they were subjected to unequal consideration cannot obtain reinstatement, backpay, compensatory damages, or other forms of relief related to the end result of an employment decision. To obtain such remedies, these plaintiffs must show that age discrimination was a but-for cause of the employment outcome.