Bloomberg Law
June 28, 2019, 1:34 PMUpdated: June 28, 2019, 2:25 PM

Justices to Review How Federal Workers Prove Job Bias Claims (1)

Hassan A. Kanu
Hassan A. Kanu
Legal Reporter

The U.S. Supreme Court accepted June 28 a petition asking for clarification on what federal government workers must prove when they file discrimination claims.

The main question for the court in the case is about the standard federal workers must meet to show there was age discrimination underlying a termination, demotion, or some other negative job action. A decision from the justices would resolve a federal appeals court split on the issue. The high court’s analysis may ultimately make it easier or tougher for federal government workers to prove they were discriminated against based on age or even other protected categories, like race or sex.

Norris Babb’s case against the Department of Veterans Affairs alleges discrimination and retaliation in violation of Title VII of the 1964 Civil Rights Act and the Age Discrimination in Employment Act. She alleges she was denied opportunities to advance at a department facility in Florida because of her gender and age, and that management retaliated against her for filing complaints about the issue.

Babb’s petition presented a “subsidiary question” for the court about whether retaliation against federal workers over protected activity—like filing a discrimination complaint—is explicitly barred by Title VII, but the justices limited their review to the standard for proving bias under the ADEA statute.

Private vs. Federal

Federal laws against discrimination in employment have different provisions for workers in the private sector compared to those in public employment. Broadly speaking, the private sector provisions ban employment decisions that are made “because of” someone’s age or because they engaged in protected activity. The provisions that apply to the federal sector generally use different language that requires that employment decisions “shall be made free from” discrimination.

The Supreme Court has interpreted the “because of” language as requiring what’s known as “but-for” causation, which means the plaintiff must prove that they wouldn’t have been harmed except for the fact of their identity or protected act. It has done so in both Title VII retaliation and ADEA discrimination cases.

But Congress in 1991 also amended Title VII so that discrimination claims could be proved based on the test that was developed through interpreting the language in the federal sector provisions—known as the “motivating factor” standard. That test requires plaintiffs to show that bias was a factor in causing the harm they suffered. The amendments limit how much money and damages can be recovered, and retaliation claims brought under that statute retained the “but-for” causation standard, which is tougher for plaintiffs to surmount.

“Congress thus adopted a motivating-factor standard for causation in Title VII’s private-sector discrimination provision, but it did not do so in other provisions of Title VII or any provisions of the ADEA,” the VA said in its brief.

Babb and the VA both urged the high court to resolve the standard of causation issue for age discrimination complaints by federal workers. The government argued that the stricter “but-for” standard should apply, while Babb argued for the more lenient motivating factor analysis.

Some federal appeals courts—including the Ninth Circuit and the Eleventh Circuit in Babb’s case—have held that the age bias statute requires but-for causation. The Ninth Circuit’s decision concluded that Supreme Court precedent doesn’t permit use of the motivating-factor test during trial in federal sector cases, but does in the summary judgment phase—when courts make a preliminary decision as to whether the plaintiff actually has a viable claim.

The District of Columbia Circuit, on the other hand, has rejected that approach and applied the motivating factor analysis in those cases.

Administrative “agencies that oversee discrimination and retaliation claims have followed the D.C. Circuit” and concluded “that federal employee’s burden of proof should be ‘a factor’ or ‘a motivating factor’ in Title VII and ADEA discrimination cases,” Babb’s attorneys said in her brief.

The high court’s analysis could resolve those differences in how courts and agencies approach the issue.

The case is Babb v. Wilkie, U.S., No. 18-882, review granted 6/28/19 .

(Updated with additional reporting. )

To contact the reporter on this story: Hassan A. Kanu in Washington at

To contact the editors responsible for this story: Jay-Anne B. Casuga at; Terence Hyland at