Latham Secures Supreme Court Win in Pro Bono Age Discrimination Case

A Latham team recently secured a major victory in the United States Supreme Court in Babb v. Wilkie, a case regarding the proper scope of the Age Discrimination in Employment Act (ADEA). On April 6, 2020, the Court held in an 8-1 decision that the ADEA’s federal sector provision—which governs all age discrimination claims by the nation’s 2 million federal employees—does not require a plaintiff to show that age was a but-for cause of his or her employment decision in order to establish liability. Instead, the Court held, an employee may prevail by showing only that a personnel action was tainted by the consideration of age. That result reversed a long trend in Supreme Court decisions imposing stringent but-for causation as the default rule under the federal employment laws, and will have far-reaching consequences for federal government employees seeking to vindicate their rights not only under the ADEA, but also under Title VII’s identically worded federal-sector provision.

The case arose when Noris Babb, a clinical pharmacist at a US Department of Veterans Affairs medical center in Florida, alleged that she had been subjected to age discrimination in several personnel actions. Specifically, Babb claimed that her supervisors discriminated against her on the basis of age between 2011 and 2014 when they passed over her for a new position, denied her various training opportunities, and reduced her holiday pay. After Babb sued the Secretary of Veterans Affairs, the district court granted the government’s summary judgment motion. The Eleventh Circuit affirmed, citing binding circuit precedent that age discrimination does not violate the ADEA unless a plaintiff conclusively proves that the discrimination was the but-for cause of an adverse personnel action.

A Latham team led by partner Roman Martinez took over the lead role in Ms. Babb’s appeal at the certiorari stage and successfully persuaded the Supreme Court to review the Eleventh Circuit’s decision. The team then filed an opening and reply brief raising various arguments based on the statute’s text, structure and history. Martinez argued the case in January.

In an opinion that closely tracks Latham’s briefing and argument, the Court resoundingly endorsed Ms. Babb’s position. The Court relied primarily on the text of the statute, which states that “[a]ll 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.” 29 U. S. C. §633a(a). The Court held that the plain meaning of this language requires that a personnel action must be “made free from” any “discrimination”—and the word discrimination has long been understood (both in ordinary English and the Court’s precedent) to mean differential treatment, whether or not that differential treatment is the cause of the ultimate adverse decision. Thus, the Court held, if age discrimination plays any part in the decision-making process, an employee’s personnel action was not “free from” discrimination, and a violation of the statute is established. That holding marks a significant win for Ms. Babb and vindicates the essential principle that discrimination has no place in federal employment.

Along with Martinez, Latham’s team included appellate associates Samir Deger-Sen, Maggie Upshaw, and David Steinbach. The team benefited immensely from moot court panels including partners Greg Garre, Melissa Sherry, and Susan Engel.