What Wednesday's Supreme Court Case Could Mean For Age Discrimination in the Workplace

The Supreme Court is set to hear oral arguments on Wednesday for Babb v. Wilkie, which could determine precisely what a plaintiff needs to prove in order to be protected under the Age Discrimination in Employment Act (ADEA).

"This case is basically about what it takes for an employee who's been a victim of employment discrimination by the federal government to prove a valid discrimination claim in court," Roman Martinez, one of the plaintiff's attorneys, said in an interview with Newsweek. "Our case specifically involves the age discrimination statute, but the exact same language applies to claims of racial, religious or gender discrimination."

The case concerns a woman named Noris Babb, a pharmacist who began working at the Veterans Affairs (VA) medical center in Bay Pines, Florida, in 2004. Court documents described her as a "highly successful pharmacist." During her tenure at the center in Bay Pines, Babb helped develop the Geriatric Pharmacotherapy Clinic (GPC), which helps to treat older veterans. In 2009, the hospital granted Babb permission to prescribe medication without the input of a doctor, which is known as full practice authority.

In 2010, the VA implemented a nationwide program similar to GPC called the Patient Aligned Care Team (PACT). According to court documents, pharmacy management at the hospital rejected the human resource department's recommendation that pharmacists who worked under the old system be allowed to transfer to the new one, except for two pharmacists who were younger than 40. Instead, the pharmacy management barred several of the other pharmacists from transitioning to PACT and receiving the promotion that came with it, but granted it to the two pharmacists under 40.

"Despite the fact that they were performing in their positions for years and the fact that the doctors where they were working wanted these individuals to remain in their positions doing their jobs, they were the only people denied raises and promotions," court documents read. "They were denied in favor of younger men and women and older men."

Two of the pharmacists who were not promoted filed Equal Employment Opportunity complaints, arguing that they had been discriminated against for their age and gender. Babb testified in support of their claims. She later alleged that because she had testified she was not given the chance to participate in PACT and said that pharmacy management required her to agree to a new work schedule that was not viable. Because the schedule was not workable for her, her full practice authority was revoked and she no longer qualified for the promotion. Instead, another pharmacist, under the age of 30, received it.

So Babb decided to sue the secretary of the Department of Veterans Affairs, Robert Wilkie, for what government documents call "discrimination, retaliation, and a discriminatory and retaliatory hostile work environment" that is illegal under the Civil Rights Act and the Age Discrimination in Employment Act (ADEA). The federal District Court ruled in favor of the VA, but Babb appealed to the U.S. Court of Appeals, saying that the District Court should have allowed her to prove that discrimination was, according to court documents, "a factor or motivating factor" in the VA's decision to withhold the promotion from her.

The 11th U.S. Circuit Court of Appeals affirmed part of the lower court's decision, so Babb filed a petition with the Supreme Court in January 2019. In June 2019, the top court agreed to hear arguments for the case on Wednesday.

The law at the center of the case, the ADEA, explicitly prohibits workplace discrimination against people over 40. Under the law, an employer cannot "fail or refuse to hire or to discharge" or "otherwise discriminate" against an employee or job applicant because of that person's age.

Furthermore, it states that employers cannot prevent a person from receiving promotions or "adversely affect [their] status as an employee" because of their age. It also bars labor organizations from engaging in age discrimination. The ADEA has been in effect since it was signed into law by President Lyndon Johnson in 1967.

Newsweek attempted to contact the government's lawyers for comment but did not receive replies before publication. However, the government's argument, as presented in court documents, is based on an interpretation of the ADEA and prior discrimination cases like Gross v. FBL Financial Services., Inc.

Essentially, the government believes that the ADEA requires a plaintiff to prove not only that the employer discriminated against an employee or job applicant in violation of the law but also that the employee or applicant would have gotten the job if they had not been discriminated against. In legal parlance, this is known as the "but for" factor.

On the other hand, Martinez, one of Babb's lawyers, said that his side's argument is based on the pure language of the ADEA and believe it is in Babb's favor.

"Our basic argument is based on the language of the statute, which is absolutely clear," Martinez said. "It says that all federal personnel actions 'shall be made free from any discrimination based on age.'"

Two organizations, the National Treasury Employees Union (NTEU), which represents federal employees, and AARP (formerly known as the American Association of Retired Persons), have filed amicus curiae briefs in favor of Babb. According to Cornell Law School's Legal Information Institute, such briefs are filed by people or organizations that are not parties to the suit but "have a strong interest in the matter" and would like to influence the court's decision.

The NTEU filed its brief because it believes the ADEA is meant to protect employees from discrimination, period, according to a statement.

"The Age Discrimination in Employment Act was intended to protect federal employees from discrimination in the workplace, not shield those who engage in discrimination from ever being caught," NTEU National President Tony Reardon wrote in an emailed statement to Newsweek. "It is our hope that the Supreme Court reverses the lower court ruling and restores a standard of liability that will actually deter employers from illegally discriminating against employees based on their age."

In a similar vein, AARP also supports the plaintiff because it believes the ADEA is on Babb's side.

"AARP strongly supports broad construction and vigorous enforcement of the ADEA, which Congress intended," wrote Dan Kohrman, senior attorney of the AARP Foundation Litigation in an emailed statement to Newsweek. "The words of the Act's protections for federal workers are especially broad and favor a ruling for Dr. Babb."

However the court decides to rule could determine how future age discrimination cases proceed. According to the U.S. Equal Employment Opportunity Commission, over 16,000 age discrimination charges were filed in the 2018 fiscal year.

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The Supreme Court is set to hear oral arguments on Wednesday for Babb v. Wilkie, an age discrimination case. Samuel Corum/Getty