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Chief Justice Asks if ‘OK, Boomer’ Enough to Show Age Bias (1)

Jan. 15, 2020, 5:52 PM

If someone says, “OK, Boomer,” to a job applicant, would that be significant enough to show age discrimination, Chief Justice John Roberts asked as a hypothetical in one of two cases this term focused on how courts should analyze discrimination lawsuits in the private and government sectors.

“Is that actionable?” the chief justice asked, referring to a recently popularized phrase meant to dismiss concerns from baby boomers, the generation born between 1946 and 1964.

The line of questioning came during oral arguments Wednesday in a case brought by Norris Babb, who alleges the Department of Veterans Affairs denied her promotion opportunities at a Florida VA facility because of her gender and age, and that she was retaliated against for filing complaints about the alleged mistreatment.

The central question the justices are considering is whether a plaintiff should be required to prove an adverse action against them wouldn’t have been taken “but for” their age, or whether they must show that age was a “motivating factor” in that action. The latter standard is generally easier to meet.

“The key issue is how to translate causal language in statutes into legal language,” Sandra Sperino, who teaches torts and employment law at the University of Cincinnati College of Law, told Bloomberg Law. “There are many different paths to do that, and so the Supreme Court is struggling which path to choose.”

The ultimate ruling will apply to roughly 2.1 million federal workers and either make it easier or harder for them to prove age bias under the Age Discrimination in Employment Act of 1967. The court’s ongoing consideration of a similar issue in a separate case about race discrimination—Comcast Corp. v. National Association of African American-Owned Mediacould result in a pair of decisions that reshape discrimination law and have widespread effects on plaintiffs’ ability to prove workplace bias claims.

Roberts also suggested that applying the more lenient standard of proof might amount to a “regulation of speech in the workplace.” Babb’s attorney, Roman Martinez, a partner in the Washington, D.C., office of Latham & Watkins, immediately dismissed those concerns. Whether a comment that appears to be discriminatory is significant enough to violate the ADEA “would be a classic question for the fact-finder"—the judge or jury—to decide, Martinez argued.

Questioning from Roberts and Justices Brett Kavanaugh and Neil Gorsuch suggested they doubted Babb’s arguments. However, the remaining justices seemed inclined to adopt a standard that would make it easier to prove age bias in the federal sector.

The government has taken the position that the more stringent standard should apply, based on officials’ interpretation of the ADEA’s text. Solicitor General Noel Francisco told the justices that phrases like “because of” discrimination, or that “personnel actions” should be free from discrimination, indicate that Congress meant to outlaw only final job decisions where the action itself—such as a termination—is discriminatory.

“I’m having a terrible time fitting your arguments into the language of the statute,” Justice Samuel Alito said to Francisco at one point. Alito and most of the judges seemed to believe the law was intended to bar both a biased final action and any discriminatory factors at other stages of the decision-making process.

Different Paths

Under the more complex “but for” test, plaintiffs often have the burden of disproving any additional, nondiscriminatory reasons that the defendant offers as explanation for the challenged action.

Courts applying the more lenient motivating factor test can more easily hold a defendant liable for discrimination even if there are other proven reasons for the biased action.

“I can’t speak specifically to grand implications, other than saying there’d be a lot more claims against the government under the motivating factor test, because it is a more lenient standard,” attorney Damian Cavaleri, of Hoguet Newman Regal & Kenney LLP in New York, told Bloomberg Law. Cavaleri represents and advises both employers and employees on workplace matters.

Cavaleri and Sperino interpreted the language of the law differently.

“There are provisions where Congress is specifically implicating the motivating factor test, making it clear where that standard is appropriate,” but the ADEA “does not imply the motivating factor test,” Cavaleri said.

Sperino said the more stringent but-for test “shouldn’t be a problem for the plaintiff’s lawyer, if properly understood.”

“However, many courts misapply the standard and make it more onerous than it actually is,” she said. “Secondly, tort law recognizes that there’s instances where the but-for test doesn’t work, and so in tort law courts feel free to fashion a workable standard,” depending on the circumstances.

“The Supreme Court hasn’t recognized that those same situations might exist in discrimination law,” Sperino said.

The case is Babb v. Wilkie, U.S., No. 18-882, oral argument 1/15/20.

To contact the reporter on this story: Hassan A. Kanu in Washington at hkanu@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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