Wednesday, January 15, 2020
The Supreme Court heard oral argument today in Babb v. Wilkie. The Court considered whether the federal sector provision of the ADEA requires the plaintiff to establish “but-for” cause. The ADEA (29 U.S.C. §633a(a)) provides that personnel actions affecting agency employees aged 40 years or older shall be made free of any discrimination based on age.
Overall, there were not many surprises in today’s argument. There were very few questions related to Gross and Nassar, and many of the Justices seemed reluctant to apply the analysis from those cases onto language in the ADEA federal sector provision that is clearly different than the main ADEA language. There was very little discussion by the Justices about tort law and its role in discrimination law.
Here are highlights from today’s oral argument:
Chief Justice Roberts drops an “OK, Boomer” reference at page 20 of the transcript.
The Justices seemed concerned about understanding the types of situations in which a plaintiff could prevail, but would not be able to prove “but for” cause. Several of the Justices posed questions related to when a final decision was not based on age, but the process leading up to the decision was tainted by improper consideration of age. Solicitor General Francisco made an analogy to a person making an eggless cake. If the person whipped up some eggs, but did not put them in the cake, the cake was still an eggless cake. Justice Alito wondered whether “but for” cause would exist if a little bit of the egg made it into the batter. (Transcript, p. 45).
Chief Justice Roberts cryptically asked whether the petitioner’s standard would improperly regulate speech in the workplace in violation of the First Amendment. (Transcript, p. 22)
Petitioner agreed with Justice Breyer that applying the Title VII motivating factor standard would be appropriate. (Transcript, p. 24)
Justice Kavanaugh seems to argue that the ADEA’s language regarding “otherwise discriminate” is fairly broad. (Transcript, p. 33)
The government relied heavily on the incorrect idea that there is a canon of construction requiring the plaintiff to prove “but for” causation, unless a statute provides otherwise.
The government argued that when looking at statutory language, it is appropriate to look at the entire body of law related to the statute, including later-enacted statutes. (Transcript, p. 37).
Justices Sotomayor, Ginsburg, and Kagan focused on why Congress chose to use different language in the main portion of the ADEA and the federal sector provision. (starting at Transcript, p. 41). Justice Kavanaugh also asks about the different text. (Transcript, p. 47).
Justice Breyer embraced using a “but for” standard as part of remedial principles. (Transcript, p. 49). He also stated that the federal government should be a model employer. It might have obligations to go beyond other employers in prohibiting discrimination. Earlier in the argument, Justice Kavanaugh asked about why “but for” principles would be relevant at the remedial stage of litigation, but not the liability stage. (Transcript, p. 6)