{"id":11868,"date":"2019-10-05T14:39:47","date_gmt":"2019-10-05T18:39:47","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/crcl\/?p=11868"},"modified":"2023-12-20T05:57:31","modified_gmt":"2023-12-20T10:57:31","slug":"babb-v-wilkie-and-the-future-viability-of-statutory-discrimination-claims","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/babb-v-wilkie-and-the-future-viability-of-statutory-discrimination-claims\/","title":{"rendered":"Babb v. Wilkie and the Future Viability of Statutory Discrimination Claims"},"content":{"rendered":"

In <\/span>University of Texas Southwest Medical Center v. Nassar<\/span><\/i>,<\/span><\/a> the Supreme Court observed that when determining the standard for causation in a discrimination statute, \u201cit is presumed that Congress incorporated tort law’s causation \u2018in fact standard\u2019\u2014i.e., proof that the defendant’s conduct did <\/span>in fact<\/span><\/i> cause the plaintiff’s injury\u2014absent an indication to the contrary in the statute itself.\u201d<\/span> Under a causation \u201cin fact standard\u201d (hereinafter \u201cbut-for\u201d), plaintiffs who claim discrimination need to prove not just that discrimination was a <\/span>motivating<\/span><\/i> factor in the adverse action, but also that discrimination was the <\/span>but-for<\/span><\/i> cause of their injuries. That is, were it not for discrimination, the adverse action would not have taken place.\u00a0<\/span><\/p>\n

In this upcoming term, the Supreme Court will decide, in <\/span>Babb v. Wilkie<\/span><\/i><\/a>, whether the\u00a0 federal-sector provision of the Age Discrimination in Employment Act (ADEA), <\/span>20 U.S.C. \u00a7 633a(a)<\/span><\/a>, requires plaintiffs to prove that their age was not just the motivator, but the cause of the challenged action\u2014e.g., but-for their age, they would not have been fired. Petitioner, Noris Babb, worked as a pharmacist for the Veterans Affairs Medical Center in Bay Pines Florida and alleges, in part, that she was illegally denied a promotion because of her age under Section 633a(a). This provision holds that personnel actions affecting agency employees aged 40 years or older \u201cshall be made free from any discrimination based on age.\u201d This language unambiguously demonstrates that a plaintiffs need only prove that their age was a motivating factor for the action. If the Court requires but-for causation in <\/span>Babb<\/span><\/i>, it will likely rely on the statute\u2019s inclusion of the words \u201cbased on,\u201d even though, in this context, those words only describe the type of discrimination prohibited by the statute. Therefore, if the Court requires but-for causation in Section 633a(a), it would likely also require but-for causation in other anti-discrimination statutes, which prohibit discrimination \u201cbased on,\u201d and even \u201con the basis of\u201d a protected characteristic.<\/span><\/p>\n

First, the text of the statute indicates that a motivating factor, rather than a but-for causation standard \u00a0 is appropriate. As the petitioner, Noris Babb, observes in her <\/span>brief<\/span><\/a>, \u201cSection 633a(a)\u2019s \u2018free from\u2019 phrase indicates that personnel actions must be entirely \u2018relieved from\u2019 or \u2018clear\u2019 of discrimination\u2014i.e. even the smallest amount of discrimination is prohibited.\u201d This supposition is consistent with<\/span> dictionary definitions<\/span><\/a> which define \u201cfree\u201d as \u201c<\/span>relieved from or lacking something, especially something unpleasant or burdensome.\u201d<\/span><\/p>\n

Second, the word \u201cany\u201d demonstrates that \u201cthe process must be entirely without discrimination.\u201d The <\/span>petitioners<\/span><\/a> reason that the use of the word \u201cany\u201d acknowledges that there can be different degrees of discrimination. Thus, \u201cany\u201d \u201cdistinguishes the decision-making process from one in which \u2018some\u2019 discrimination may be allowed, such as a process where discrimination is present but does not directly cause an adverse outcome.\u201d <\/span>Respondent<\/span><\/a>, Robert Wilkie, Secretary of Veterans Affairs, responds that \u201c[a]lthough the word \u2018any\u2019 can sometimes confer an \u2018expansive meaning,\u2019 it never has a \u2018transformative\u2019 effect and thus \u2018never change[s] in the least the phrase that follows it.\u201d Thus, respondents reason that the phrase which follows \u201cany\u201d\u2014\u201cdiscrimination based on age\u201d\u2014<\/span>must<\/span><\/i> indicate but-for causation.\u00a0<\/span><\/p>\n

Respondents base this reasoning on the Supreme Court\u2019s holdings in <\/span>Gross v. FBL Financial Services, Inc.<\/span><\/i> <\/a>and <\/span>University of Texas Southwestern Medical Center v. Nassar.<\/span><\/i><\/a> In <\/span>Gross,<\/span><\/i> the Court ruled that the ADEA’s parallel <\/span>private-sector provision<\/span><\/a>, which prohibits employers from taking adverse action against an employee \u201c<\/span>because of<\/span><\/i> such individual\u2019s age,\u201d\u00a0 requires plaintiffs to prove that their age was the but-for cause of the challenged action. The Court reasoned that the ordinary meaning of\u00a0 the phrase \u201cbecause of\u201d indicates that age was \u201cthe \u2018reason\u2019 that the employer decided to act,\u201d and not just a motivating factor. In <\/span>Nassar, <\/span><\/i>the Court found the phrase, \u201cbased on\u201d like the phrase \u201cbecause of,\u201d \u201cindicates a but-for causal relationship.\u201d\u00a0 Therefore, because Section 633a(a) uses the word \u201cbased on\u201d it must also indicate a but-for causal relationship.\u00a0<\/span><\/p>\n

If the Court accepts this reasoning, it would be choosing to enforce a formal rule despite the dictates of logic. Phrases mean different things in different contexts. As the <\/span>petitioners<\/span><\/a> observe, while in the private-sector provision the phrase \u201cbecause of\u201d refers to the adverse action, in the federal-sector provision, the phrase \u201cbased on\u201d \u201csimply refers to the type of discrimination prohibited\u201d under the statute. \u201cIn this context, \u2018discrimination based on age\u2019 and \u2018age discrimination\u2019 are synonymous.\u201d To re-read the causation standard simply because the legislature chose the words \u201cdiscrimination based on age\u201d rather than \u201cage discrimination\u201d would be to manufacture meaning where there is none. If the Court chooses to do so, it is demonstrating that the presumption for but-for causation is sufficiently strong to be maintained purely through artificial linguistic rules.<\/span><\/p>\n

Even if the statute does not unambiguously demonstrate that \u201cmotivating factor\u201d causation is the proper standard, the Equal Employment Opportunity Commission (EEOC), the administrative agency responsible for enforcing Section 633a(a), decided that it was. In <\/span>Federal Express Corp. v. Holowecki<\/span><\/i><\/a>, the Court found the EEOC is entitled to <\/span>Chevron <\/span><\/i>deference. Under <\/span>Chevron<\/span><\/i><\/a>, <\/span><\/i>the EEOC\u2019s decision should be upheld so long as it is a permissible interpretation of an ambiguous statute. Thus, if the Court requires but-for causation, it would be holding that this is the <\/span>only<\/span><\/i> permissible reading of the statute.\u00a0<\/span><\/p>\n

The language of the Section 633a(a) was pulled directly from<\/span> Title VII\u2019s federal-sector provisions<\/span><\/a>, which were enacted two years before the ADEA. Title VII protects against employment discrimination on the basis of race, color, national origin, sex, and religion, and its federal sector provisions mirror the language of Section 633a(a) and mandate that \u201c[a]ll personnel actions . . . shall be made free from any discrimination based on [a protected characteristic.]\u201d If the Court rules that the words \u201cbased on\u201d in Section 633a(a) unambiguously require a showing of but-for causation, those words would presumably have the same effect in Title VII.<\/span><\/p>\n

Moreover, the phrase \u201cdiscrimination based on [a protected characteristic]\u201d would convey the same meaning as the phrase \u201cdiscrimination <\/span>on the basis of<\/span><\/i> [protected characteristic].\u201d If the Court could not distinguish these two phrases, it could require but-for causation in countless anti-discrimination statutes that prohibit \u201cdiscrimination on the basis of\u201d protected characteristics.<\/span><\/p>\n

Although the Court might argue, as it did in <\/span>Nassar,<\/span><\/i> that such a construction would prevent frivolous claims and preserve resources for \u201cemployers, agencies, and courts to combat workplace harassment,\u201d that construction would also discourage meritorious claims, and it would make it that much harder for plaintiffs who\u00a0 face discrimination\u2014including those for whom discrimination was the but-for cause of their injuries\u2014to prevail in court. As the National Treasury Employees Union explained in an <\/span>amicus curiae<\/span><\/i> brief<\/span><\/a>, a showing of but-for causation \u201cwould require some sort of smoking gun documentary evidence that is unlikely to exist; an agency admission that would never be obtained; or some other method of disproving whatever bases that the government might offer for its action.\u201d The government, in effect, would be empowering its agencies to discriminate despite Section 633a(a)\u2019s broad mandate that employment decisions be made \u201cfree from any discrimination.\u201d In so doing it would forsake the policy judgements of the legislature, and the administrative expertise of the EEOC, in the name of formalist rules. <\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

In this upcoming term, the Supreme Court will decide, in Babb v. Wilkie, whether the\u00a0 federal-sector provision of the Age Discrimination in Employment Act (ADEA), 20 U.S.C. \u00a7 633a(a), requires plaintiffs to prove that their age was not just the motivator, but the cause cause of the challenged action\u2014e.g., but-for their age, they would not have been fired. This provision holds that personnel actions affecting agency employees aged 40 years or older \u201cshall be made free from any discrimination based on age.\u201d This language unambiguously demonstrates that a plaintiff need only prove that her age was a motivating factor for the action. 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