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Proving Age Discrimination Just Got Easier for Federal Employees

Author: Natasha M. Nazareth, Jose L. Espejo Date: 05/18/2020

Categories: Employment Law & Litigation

Image of a gavel on the foreground representing employment law. A recent Supreme Court decision in Babb v. Wilkie has eased the burden of proof for federal employees to prove discrimination under the Age Discrimination in Employment Act (“ADEA”). Getting relief is still challenging for employees no matter where they work, nonetheless, with a contracting economy, an uptick of age discrimination claims is expected in the next few months. 

Age Discrimination Is Illegal

The ADEA protects certain applicants and employees who are 40 years of age and older from discrimination on the basis of age in hiring, promotion, discharge, compensation, or terms, conditions or privileges of employment.  Beyond pay disparities, overt comments, and layoffs, on-the-job bias can take the form of fewer training opportunities, less favorable assignments, being passed over for promotions, and harassment. The ADEA applies to federal, state and local employers as well as private employers with at least 20 employees.  However, there are differences in the text of the law for federal employers versus all other employers which have made it harder for federal employees to prove age discrimination. 

Proving Age Discrimination

The ADEA prohibits private employers and state and local governments from discriminating against employees “because of” an employee’s age.  If age was only one of several factors for the employer’s action, but not the only factor or the motivating factor, the employee might not prevail. This is known as the “but for” standard, which is more difficult to meet. 

In contrast, for federal employees the ADEA requires that all personnel actions affecting employees or applicants for employment who are at least 40 years of age “shall be made free from any discrimination based on age.”  

Different Standards for Liability and Remedies

In an 8 to 1 decision, the Supreme Court held that a federal employee can establish an ADEA claim without proving that age was a “but for” cause.  Accordingly, a federal employee or applicant will meet the burden of proof if they demonstrate that age was considered as part of an employment decision, even if it was not the ultimate deciding factor.  However, the “but for” burden of proof is still the standard with respect to potential remedies for the federal employee such as back pay, compensatory damages, and reinstatement. Forward-looking remedies are still available if age played a lesser role.

Recommendations For Private Employers Including Independent Schools

While this case only applies to federal employees, it is a good reminder for private employers to –

  1. Be aware that age discrimination claims remain viable and are expected to rise in the face of the coronavirus crisis and contracting economy.
  2. Continue to avoid considering age and age-proxies which reflect age bias and stereotypes. Train hiring committees and managers regularly.  
  3. Set bona fide job qualifications based on age with caution and advice of counsel. Diversify hiring pools as one method of generating a higher number of more qualified applicants to choose from.  
  4. Remember that age discrimination can still occur between two employees who are both over 40 years of age. 
  5. Publish an up-to-date employee handbook which maintains an open door for concerned employees, which provides a process to investigate complaints thoroughly, confidentially and impartially, and which guarantees that a strict non-retaliation policy will be enforced.  

Recommendations for Employees

  1. If you are furloughed, laid off or feel you are being pushed out, always have an employment lawyer review any severance package offered to you.
  2. If you are concerned about age discrimination on the job, make an actionable report in writing to your employer including who, what, when, where and how the discrimination or harassment has occurred. 
  3. Hire legal counsel early. Deadlines to file EEO claims are as short as 45 days for federal employees who have to exhaust administrative remedies within their agency before seeking relief elsewhere. While EEOC claims for private employees can be made within 180 days, gathering evidence to prove both liability and damages becomes more challenging as time passes. Counsel will also be able to evaluate whether you have viable age-related claims under local and state laws.   

Please feel free to contact Natasha M. Nazareth at nnazareth@mcmillanmetro.com or Jose Espejo at jespejo@mcmillanmetro.com with any employment discrimination questions.