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Federal Employees Can Stop Age Bias Outside Court: Solicitor

Jan. 23, 2020, 9:16 PM

Federal employees can tap into several mechanisms outside of court to challenge age-related policies, practices, actions, or statements that could lead to discrimination, the U.S. Solicitor General told Supreme Court justices. But the attorney for a federal employee charging age discrimination says federal law exists to fill the gaps of these measures for victims of bias.

The Supreme Court asked for parties in a case that reckons with the scope of the federal law that protects against age discrimination to explain the remedies a federal employee can take under the existing system. Solicitor General Noel Francisco provided a detailed list of the policies available outside the Age Discrimination in Employment Act that are “aimed at stopping problematic actions or practices before they give rise to a legal violation, or reflect broader merit-system principles or standards.”

The case was 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.

During oral arguments on Jan. 15, Justices Brett Kavanaugh and Neil Gorsuch asked the attorneys about what other administrative or judicial relief is available to federal workers, and requested extra briefing on the question. The justices’ request seems aimed at squaring away a point of disagreement, or misunderstanding—including the most pointed exchange between the lawyers—during oral arguments.

Francisco argued that the ADEA provides a “narrower set of actions, provides for a different procedural path, and makes available different remedies, including judicial relief.”

“The federal government has a web of mechanisms for identifying and redressing impermissible age-related policies, practices, actions, or statements, regardless of whether a particular federal employee or applicant can show a but-for relationship between that conduct and an adverse personnel action,” Francisco told the high court. “Those mechanisms reflect the federal government’s longstanding commitment to equal employment opportunity and merit principles.”

Latham & Watkins attorney Roman Martinez argued for Babb that the mechanisms offered by the government don’t protect workers by preventing age discrimination. Martinez told the justices that the civil service laws don’t entitle an individual to any form of judicial or administration process that could stop discriminatory behavior.

Francisco told the court that policies protecting against age discrimination may be enforced in a number of ways, including internal enforcement by the relevant agency or through an order from the Office of Personnel Management that requires the agency to take action. He acknowledged these procedures aren’t the same as a court-ordered injunction, but he said they provide the same basic relief by preventing agencies from adopting policies that would be discriminatory.

He also said the government has always prohibited discrimination in a fashion that was more expansive than required of private employers. He listed several regulations, including a process that requires agencies to have their own anti-discrimination programs; relief through OPM; and constitutional claims through the Fifth Amendment, among others.

Martinez said Congress updated the age discrimination protection law to strengthen employee rights and supplant the patchwork of “unreliable administrative remedies that existed” and “wanted to give victims of age discrimination the right to pursue claims before impartial administrative and (if necessary) judicial adjudicators.”

“It is not enforceable by a lawsuit and cannot provide any form of injunctive relief, either in court or in a formal administrative proceeding,” Martinez said. “Nor is there a viable path to obtaining such relief under other civil service laws or regulations.”

The case is Babb v. Wilkie, U.S., 1/23/20.

To contact the reporter on this story: Erin Mulvaney in Washington at emulvaney@bloomberglaw.com

To contact the editor responsible for this story: Karl Hardy at khardy@bloomberglaw.com

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