To cover state and local governments, Congress simply added them to the definition of an “employer” in the ADEA’s private-sector provision, see 29 U. S. C. §630(b), and Congress could have easily done the same for the Federal Government. See ante, at 13–14. Thus, under §633a(a), a personnel action must be made “untainted” by discrimination based on age, and the addition of the term “any” (“free from any discrimination based on age”) drives the point home.3 And as for “discrimination,” we assume that it carries its “ ‘normal definition,’ ” which is “ ‘differential treatment.’ ” Jackson v. Birm-ingham Bd. v. Doyle, 429 U. S. 274 (1977). See ante, at 1. Order No. Primary school English teachers hold your heads up. One option is to first charge on whether age was the but-for cause of the different treatment. The Court then examined the terms âfree fromâ and âanyâ concluding based on several dictionary definitions that the term âfree fromâ means that âa personnel action must be âuntaintedâ by discrimination based upon ageâ and that the use of the term âanyâ drives that point home. Turning to Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) (involving the private-sector provision of the ADEA), the Court explains the statutory language involved in the private versus public sector provisions are expressly different. On April 6, 2020, the United States Supreme Court issued its decision in Babb v. Wilkie . Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Breyer, Sotomayor, Kagan, Gorsuch, and Kavanaugh, JJ., joined, and in which Ginsburg, J., joined as to all but footnote 3. This rule is so broad that a plaintiff could bring a cause of action even if he is ultimately promoted or hired over a younger applicant. Healthy did not import a remedial scheme from a previously existing statute or common-law rule. Babbâs case reaches the Supreme Court after a journey through the courts below. WILKIE BABB Opinion of the Court if age discrimination played a lesser part in the decision, other remedies may be appropriate. The federal-sector provision of the ADEA provides that âpersonnel actionsâ affecting individuals aged 40 and older âshall be made free from any discrimination based on age.â The Court then embarked on an analysis of the language in such detail that any textualist would be proud. Ante, at 1. 8-1. NORIS BABB, PETITIONER v. ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS, Justice Alito delivered the opinion of the Court.1*. See, e.g., Brenton W. v. Chao, 2017 WL 2953878, *9 (June 29, 2017); Arroyo v. Shinseki, 2012 WL 2952078, *4 (July 11, 2012). The Government suggests that the Court reached this conclusion because it thought that Congress would have “said so expressly” if it had meant to require notice in situations where consideration of a credit report was inconsequential. That is what the statutory language dictates, and if Congress had wanted to impose the same standard on all employers, it could have easily done so. Co. of America v. Burr , 551 U.S. 47 (2007), the statutory language in the ADEA and the Fair Credit Reporting Act are significantly different. That conclusion does not follow from the two correct points on which it claims to be based. See American Heritage Dictionary, at 788 (def. Justice Thomas states the governmentâs interpretation of the statuteâs language is more reasonable than the Courtâs because the entire phrase, âdiscrimination based on age,â modifies âpersonnel actions.â Therefore, what is being made is the personnel action. There is a violation to Â§ 633a(a) of the ADEA when age âplays any part in the way a [personnel] decision is made.â. Cf. to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” Thus, the but-for causal language in §623(a)(1)––“because of such individual’s age”––is an adverbial phrase modifying the verbs (“to fail or refuse to hire,” etc.) 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. The âanyâ role is clearly a lower standard that even motivating factor, which is a point that Justice Thomas explicitly notes in his dissent. Not only will this result in a flood of litigation, but the holding ignores the nature of federal hiring that entails exceptions and affirmative action programs. Because the interpretation of an antidiscrimination statute must be assessed against the backdrop of this default rule, I begin by describing the rule in detail. if that consideration does not actually cause the employer to make a less favorable personnel action than it would have made for a similarly situated person who is younger.” Id., at 17. Southwestern Medical Center v. Nassar, 570 U. S. 338, 346–347 (2013). And several years after adding §633a(a) to the ADEA, Congress amended the civil service laws to prescribe similar standards. Letter Brief for Respond- ent 1 (“The federal government has long adhered to anti- discrimination policies that are more expansive than those required by . Co. of America v. Burr, 551 U. S., at 63, we interpreted a provision of the Fair Credit Reporting Act (FCRA) requiring that notice be provided “[i]f any person takes any adverse action with respect to any consumer that is based in whole or in part on any information contained in a consumer [credit] report.” 15 U. S. C. §1681m(a) (emphasis added). We hold that §633a(a) goes further than that. . (c) It is not anomalous to hold the Federal Government to a stricter standard than private employers or state and local governments. 3 On this score, it is worth mentioning that even the EEOC has not adopted the Court’s low bar but instead employs a motivating-factor standard. See 42 U. S. C. §2000e–2(m) (providing that an employer is liable if an employee establishes that a protected characteristic was a motivating factor in an employment action); §2000e–5(g)(2)(B) (limiting the remedies available to plaintiffs who establish motivating factor liability).1 Rather than supplementing a novel rule with a judicially crafted remedy, I would infer from the textual silence that Congress wrote the ADEA to conform to the default rule of but-for causation. Order No. But if the employee wants full relief the employee must show that age discriminaÂtion was a but-for cause of the employment outcome. The difference came down to the Eleventh Circuitâs interpretation of what it takes to prove an employerâs bias causedan adverse employment decisioâ¦ Under §633a(a), personnel actions must be made “free from” discrimination. See, e.g., Price Waterhouse v. Hopkins, 490 U. S. 228, 249 (1989) (plurality opinion); Mt. However, I will leave that to trial attorneys who must live with this on a daily basis. By rejecting a âbut-forâ test in federal worker Age Discrimination in Employment Act (ADEA) claims, â¦ . §633a (a), does not require proof that age discrimination was the âbut-for causeâ of the personnel action. No. 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 . Jun 03 2019 Reply of petitioner Noris Babb filed. But I disagree with the Court’s overall interpretation of how these terms fit together. That interpretation is consistent with the term’s meaning in general usage, and we assume that it has the same meaning under the ADEA. We are aware of no other anti-discrimination statute that imposes liability under such circumstances, and we do not think that §633a(a) should be understood as the first. Regardless, where the statute’s words are unambiguous, the judicial inquiry is complete. Because §633a(a)’s language also appears in the federal-sector provision of Title VII, 42 U. S. C. §2000e–. To obtain such remedies, these plaintiffs must show that age discrimination was a but-for cause of the employment outcome. Jun 04 2019 DISTRIBUTED for Conference of 6/20/2019. The Court explains that Congress is free to hold the federal government to a higher standard than it does to private employers and clearly did so here by not adopting the causation language applicable to private employers. We have recognized as much when interpreting 42 U. S. C. §1981’s prohibition against racial discrimination in contracting, Comcast Corp. v. National Assn. The judgment of the United States Court of Appeals for the Eleventh Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. He states that under the majorityâs rule, any consideration of ageâwhether for positive or negative reasonsâwill allow an employee to bring an ADEA claim against her/his federal employer. She maintains that its language prohibits any adverse consideration of age in the decision-making process. The language of §633a(a) is markedly different than the language of those statutes; thus the holdings in those cases are entirely consistent with the holding here. Second, this same example may suggest that §633a permits damages remedies, even when the Government engages in nondispositive “age discrimination in the ‘ma[king]’ of a personnel decision.” Ante, at 10. In that situation, plaintiffs can seek injunctive or other forward-looking relief. Instead, if age is a factor in an employment decision, the statute has been violated. Therefore, §633a(a) requires that age be a but-for cause of the discrimination alleged. The federal-sector provision of the Age Discrimination in Employment Act (ADEA), states that â[a]ll personnel actions affecting employees or applicants for employmentâ in executive agencies âwho are at least 40 years of age * * * shall be made free from any discrimination based on age.â 29 U.S.C. 4–5. We explained: “[W]here a plaintiff challenges a discrete governmental decision as being based on an impermissible criterion and it is undisputed that the government would have made the same decision regardless, there is no cognizable injury warranting [damages] relief.” 528 U. S., at 21. Indeed, the first proposal for expansion of the ADEA to government entities did precisely that. Case: 16-16492 Date Filed: 07/16/2018 Page: 2 of 24 3 VII retaliation claim, and her hostile -work-environment claim. In 2013, Dr. Noris Babb, a pharmacist at the C.W. Consider Exec. 74, 29 U. S. C. §633a(a), provides (with just a few exceptions) that “personnel actions” affecting individuals aged 40 and older “shall be made free from any discrimination based on age.” We are asked to decide whether this provision imposes liability only when age is a “but-for cause” of the personnel action in question. The following timeline details key events in this case: 1. I would not follow such an unusual course. The phrase “free from” means “untainted,” and “any” underscores that phrase’s scope. The Government’s only other textual argument is that the term “made” refers to a particular moment in time, i.e., the moment when the final employment decision is made. It is incongruous to suggest that Congress could have intended to incorporate a remedial scheme that appears not to have existed at the time the statute was passed. The Court attempts to downplay the sweeping nature of its novel “any consideration” rule by discussing the limited remedies available under that rule. Our conclusion is also supported by traditional principles of tort and remedies law. 1984)). This would be like a jury charge under a Title VII motivating factor analysis - with one major difference: under Title VII it would be the employerâs burden to prove the same decision defense. of African American-Owned Media, ante, at 6. Only her age-discrimination claims made it to SCOTUS. To obtain reinstatement, damages, or other relief related to the end result of an employment decision, a showing that a personnel action would have been different if age had not been taken into account is necessary, but if age discrimination played a lesser part in the decision, other remedies may be appropriate. Similarly, under Nassar if the claim is retaliation under Title VII, the standard is but-for cause. 5(a)) (1969) (defining “free” “used with from” as “[n]ot affected or restricted by a given condition or circumstance”); Random House Dictionary of the English Language 565 (def. Justice Thomas would apply the âdefault ruleâ for employment discrimination claims requiring a plaintiff to show discrimination was the but-for cause of the adverse action. It is more curious that while the Court appeared to adopt a Price Waterhouse type of framework, it was not mentioned it in the opinion. See §623(a). We generally ascribe significance to such a decision. Specifically, the Court declares that a plaintiff can obtain compensatory damages, backpay, and reinstatement only if he proves that age was a but-for cause of an adverse personnel action. Appx. in part and reversedThe action of an appellate court overturning a lower court's decision. Currently pending before the Court are two petitions for certiorari asking the Court to determine the causation standard under the ADA. Accordingly, I would hold that the default rule of but-for causation applies here. /content/aba-cms-dotorg/en/groups/crsj/publications/crsj-featured-articles/babb-v--wilkie--continues-to-muddy-the-waters. 13583, 3 CFR 267 (2011), which directs agencies to “develop and implement a more comprehensive, integrated, and strategic focus on diversity and inclusion as a key component of their human resources strategies.” To provide just one example of how agencies are implementing this requirement, Customs and Border Protection’s plan commits the agency to “[i]ncreas[ing the] percentage of applicants from underrepresented groups for internships and fellowships,” “[c]reat[ing] a targeted outreach campaign to underrepresented groups for career development programs at all levels,” “[e]stablish[ing] and maintain[ing] strategic partnerships with diverse professional and affinity organizations,” “[a]nalyz[ing] demographic data for new hires and employee separations to identify and assess potential barriers to workforce diversity,” and “[d]evelop[ing] a diversity recruitment performance dashboard which provides relevant statistics and related performance metrics to evaluate progress towards achievement of recruitment goals.” U. 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