babb v wilkie opinion
Posted on December 10, 2020

Justice Thomas states the government’s interpretation of the statute’s language is more reasonable than the Court’s because the entire phrase, “discrimination based on age,” modifies “personnel actions.”. I join the majority opinion because I agree that 29 U. S. C. §633a imposes liability even when age is not a “ ‘but-for cause’ ” of a personnel action. The VA was represented by Noel Francisco, … See Lesage, 528 U. S., at 20–22. 5(a)) (1969) (defining “free” “used with from” as “[n]ot affected or restricted by a given condition or circumstance”); Random House Dictionary of the English Language 565 (def. . . See 5 U. S. C. §2302(a)(2)(A). When Congress expanded the ADEA’s scope beyond private employers, it added state and local governments to the definition of employers in the private-sector provision. The Court begin by explaining that the analysis must “begin with the text of the statute” and the Court then quickly noted that in this case “as it turns out, it is not necessary to go any further.”. And the imperative mood, denoting a duty, see Black’s Law Dictionary 1233 (5th ed. See 5 U. S. C. §5104. We have stated in the past that we must “read [the ADEA] the way Congress wrote it.” Meacham v. Knolls Atomic Power Laboratory, 554 U. S. 84, 102 (2008). Southwestern Medical Center v. Nassar, 570 U. S. 338, 346–347 (2013). See 42 U. S. C. §2000e–2(m) (providing that an employer is liable if an employee establishes that a protected characteristic was a motivating factor in an employment action); §2000e–5(g)(2)(B) (limiting the remedies available to plaintiffs who establish motivating factor liability).1 Rather than supplementing a novel rule with a judicially crafted remedy, I would infer from the textual silence that Congress wrote the ADEA to conform to the default rule of but-for causation. I have discussed above the limitations on damages when an employer carries a same decision defense. By contrast, in §633a(a), “based on” does not modify “personnel actions”; it modifies “discrimination,” i.e., differential treatment based on age. in part and reversedThe action of an appellate court overturning a lower court's decision. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. Rather, the Court cited other cases in which it had similarly fashioned a novel causation standard for constitutional claims—none of which concerned remedies—as “instructive in formulating the test to be applied.” Id., at 286–287. This is a direct contrast from the syntax in the public-sector provision which focuses on age being a cause of differential treatment, not necessarily of the personnel action. 12) (1933); see also American Heritage Dictionary 524 (def. “Bill” Young Veterans Affairs (“VA”) Medical Center’s Pharmacy Services division in Bay Pines, Florida as a clinical pharmacist. §1981 require but-for causation. If, at the time when the decision is actually made, age plays a part, then the decision is not made “free from” age discrimination.It is not clear that Babb actually disagrees with the Government on this point, although the many references in her brief to the decision- making process could be read to mean that §633a(a) can be violated even if age played no part whatsoever when the actual decision was made. of Ed. The Court fails to provide any explanation as to why it is appropriate to rely on judicially fashioned remedies for constitutional injuries in this purely statutory context. . I Noris Babb, who was born in 1960, is a clinical pharma cist at the U. S. Department of Veterans Affairs Medical Center in Bay Pines, Florida. Whether § 633a(a) of the ADEA imposes liability only when age is the “but-for cause” of the personnel action. The Government has no answer to this parsing of the statutory text. . The opinion is available here. . See, e.g., Natofsky v. New York, 921 F. 3d 337, 346–348 (CA2 2019); Gentry v. East West Partners Club Mgmt. In Gross, the Court made it clear that courts “must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination.”  Following the Court’s decision in Nassar and Comcast, the real rule seemed to be if you want motivating factor causation,  Congress must provide it in the statute. As to Babb it is worth nothing that the Court appeared to go out its way to not use the term “motivating factor” and avoided citing to Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). . Justice Sotomayor writes to clarify two points. Pp. the 11th Circuit's decision. 3  On this score, it is worth mentioning that even the EEOC has not adopted the Court’s low bar but instead employs a motivating-factor standard. Accordingly, I would hold that the default rule of but-for causation applies here. A subordinate recommends employee A and says that the recommendation is based in part on employee B’s age. Case: 16-16492 Date Filed: 07/16/2018 Page: 2 of 24 3 VII retaliation claim, and her hostile -work-environment claim. In §1681m(a), the phrase “based . The Court, in applying the terms of the statute, made it clear on several occasions that there is a violation to § 633a(a) of the ADEA when age “plays any part in the way a [personnel] decision is made. This novel “any consideration” standard does serious damage to our interpretation of antidiscrimination statutes and disrupts the settled expectations of federal employers and employees. The Court points to various cases upholding statutes in which Congress chose to hold the federal government to a higher standard. The standard dictionary definition of “any” is “[s]ome, regardless of quantity or number.” American Heritage Dictionary 59 (def. Healthy did not import a remedial scheme from a previously existing statute or common-law rule. The Court’s analysis did not restrict the award of all monetary relief. The Court observed it has “long employed these principles” citing to several constitutional cases and other authority.[20]. Sotomayor, J., filed a concurring opinion, in which Ginsburg, J., joined. The Court explains that Congress is free to hold the federal government to a higher standard than it does to private employers and clearly did so here by not adopting the causation language applicable to private employers. Only her age-discrimination claims are now before us. Employee A would have won out even if age had not been considered and employee B had not lost five points, since A’s score of 90 was higher than B’s initial, legitimate score of 85. Consider this example: A decision-maker must decide whether to promote employee A, who is under 40, or employee B, who is over 40. Second, Safeco did not invoke the sort of super-plain-statement rule that the Government now attributes to it. The Court then provides an example of when the ADEA would be violated even if the consideration of age would not have changed the final decision. 3–14. 551 U. S., at 63. . Well let’s start with what we know. WILKIE Opinion of the Court if age discrimination played a lesser part in the decision, other remedies may be appropriate. Finally, the Court clarifies from a practical view what is the difference between showing that a personnel decision was “tainted” by age bias and showing that that age must be a but-for cause of the discrimination alleged. Today, however, the Court departs from this rule, concluding that the federal-sector provision of the Age Discrimination in Employment Act of 1967 (ADEA) imposes liability if an agency’s personnel actions are at all tainted by considerations of age. Just as implausibly, the Court assumes from this  congressional silence that Congress intended for judges to craft a remedial scheme in which the available relief would vary depending on the inflicted injury, using an as-yet- unknown scheme. The Government also argued that it makes no sense that there would be two causation standards under the ADEA: a but-for standard for private and state and local government employers and an any consideration standard for federal employers. Babb v. Wilkie could determine precisely what a plaintiff needs to prove in order to be protected under the Age Discrimination in Employment Act. The Government’s only other textual argument is that the term “made” refers to a particular moment in time, i.e., the moment when the final employment decision is made. The “any” role is clearly a lower standard that even motivating factor,  which is a point that Justice Thomas explicitly notes in his dissent. Her age discrimination claim suffered a defeat in the Eleventh Circuit Court of Appeals (just below the Supreme Court), while her sex discrimination claim stood to fight another day. The Government has no answer to this parsing of the statutory text. Primary school English teachers hold your heads up. His reasoning read like an English class, consisting almost entirely of parsing “matters of syntax” in the statute. As a result, she explained that even if the VA’s proffered reasons were not pretextual, it would not necessarily follow that age discrimination played no part. See id., at 19–20. About License Lawyer Directory Projects Shifting Scales Body Politic Tour Site Feedback Support Oyez & LII LII Supreme Court … 4  Beyond this, the Government’s only other textual argument is that the term “made” refers to a particular moment in time, i.e., the moment when the final employment decision is made. Under Babb, while the Court noted that if an employee shows that age was the but-for cause of the different treatment,  but not but-for cause of the employment decision the employee may still be able to obtain injunctive, or other forward-looking relief. As first enacted, the ADEA “applied only to actions against private employers.” Lehman v. Nakshian, 453 U. S. 156, 166 (1981). The Court explains that “age must be a but-for cause of discrimination—that is of differential treatment—but not necessarily a but-for cause of a personnel action itself.”, How does the Court get to this distinction? Adding §633a ( a ) ’ s conclusion regarding causation at issue Babb argued the plain language §633a. In a more favorable position than he or she would have been reached had the not... 4 ( a ) in practice, consider a simple example end result of the age discrimination was but-for... Also supported by traditional principles of tort and remedies law Court points to cases. 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