Monday, April 6, 2020

SCOTUS: "But for" Cause Not Required for Some ADEA Claims

This morning, the Supreme Court issued its opinion in Babb v. Wilkie. The Court held that a plaintiff proceeding on a federal sector ADEA claim is not required to prove "but for" cause. If age was any part of the process, the government has violated the ADEA. However, remedies may be limited in cases where age was part of the process, but did not have a significant causal role in an employment outcome.

The opinion is here:

Sandra Sperino

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When Justice Scalia wrote a seemingly pro-plaintiff opinion, I used to look for the hook hidden in the juicy worm. Now it’s Justice Alito. The opinion is clearly pro-plaintiff under the ADEA’s litigation structure for private employees because the standard for those claims is but-for causation.

But the decision will almost certainly apply to federal employee suits under Title VII, and, as Justice Thomas notes, lower courts have transferred the motivating factor standard to § 717 suits. The net result: while it will be easier for plaintiffs to prove a violation, recovery of damages will be harder because there will be no shift of any burden or persuasion to the employer regarding the “same decision anyway.”

If it’s any consolation, there’s not much proof that motivating factor has been a run-away success even for Title VII status discrimination claims.

Posted by: Charles Sullivan | Apr 8, 2020 3:01:13 AM

Ultimately it may prove the death knell for federal sector ADEA claims ... or at least ones where the complainant has an attorney. Attorneys fees were already not recoverable in fed sec ADEA claims and proving a negative (that they same decision would NOT have been made but for consideration of age) will be very very tough to get $$ damages. Obviously EEOC will have to chew on it first but it’s definitely a Pyrrhic victory.

Posted by: Brian Clarke | Apr 13, 2020 1:58:53 PM

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