Legal Sidebari

Babb v. Wilkie: The Age Discrimination in
Employment Act and Mixed Motives
March 25, 2020
Can a federal employee claim age discrimination whenever age bias is one factor in an employment
decision, or must she show that the employer would have made a different decision but for her age? The
Supreme Court is to take up this question in Babb v. Wilkie as the latest turn in a decades-long legal
debate on what qualifies as “discrimination” “because of” or “based on” an impermissible motive. A
Supreme Court decision will likely resolve a circuit-court spit on the meaning of the Age Discrimination
in Employment Act (ADEA), and a Court ruling could affect courts’ application of other, similarly
worded antidiscrimination laws. This Sidebar discusses motive requirements in antidiscrimination cases,
summarizes the litigation in Babb, and presents key considerations for Congress.
The ADEA, “Mixed-Motives” Discrimination, “But-for” Discrimination,
and Federal Workers
Several federal statutes prohibit various forms of discrimination in the employment context. The most
comprehensive of these, Title VII of the Civil Rights Act of 1964, prohibits many employment practices
that treat workers differently on the basis of race, color, religion, sex, or national origin. A similar statute,
the ADEA, bars discrimination against workers over 40 on the basis of age.
Both the ADEA and Title VII also have separate provisions for federal and non-federal employees.
Congress added these provisions as amendments and used language different from the non-federal-sector
text, and courts must consider whether federal and non-federal workers should be treated the same under
the two statutes. Differences in the ADEA’s text and history also raise questions about whether courts
should follow rules developed to implement Title VII.
In Babb, the Supreme Court may clarify the ADEA’s requirements for federal-sector employees,
including, perhaps, whether courts should interpret the statute in line with Title VII. The issue before the
Court is how to assess an employer’s age-related motive under this provision when faced with evidence of
other motives unrelated to age that also informed an employer’s treatment of a worker.
Courts have struggled to decide discrimination cases when confronted with evidence of an employer’s
mixed motives—both a discriminatory motive prohibited by the statute and another, permissible motive.
The Supreme Court has repeatedly wrestled with the problem. In Price Waterhouse v. Hopkins, a majority
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of Justices recognized that Title VII would not afford liability if discriminatory animus “played a
motivating part” in a workplace action, provided the employer proved that it would have made the same
decision even without the improper factor. The Court thus held that Title VII required discrimination to be
the determining factor, or the “but-for” cause of an employee’s mistreatment. In response to Price
Waterhouse, Congress amended Title VII so that an employee could raise a claim, although for partial
relief, by showing an impermissible factor “was a motivating factor for any employment practice, even
though other factors also motivated the practice.”
Yet Congress did not amend the ADEA to add similar allowance for “mixed-motives” claims, even
though it made other changes to the ADEA around the same time. Thus, the High Court has since held (at
least for non-federal employment) that ADEA claimants must show the employer would have treated
them more favorably but for their age.
On top of the confusion over whether ADEA and Title VII share causation requirements, adjudicators
have encountered another difficulty: Whether the two statutes establish the same rules for federal and
non-federal workers. The problem arose because the ADEA and Title VII have separate, differently
worded provisions for federal and non-federal employees, complicating causation analysis. This textual
difference is at the core of the parties’ dispute in Babb. For non-federal employees, the ADEA bars
“discriminat[ion] against any individual with respect to his compensation, terms, conditions, or privileges
of employment, because of such individual’s age.” The federal-sector provision mandates that “all
personnel actions ... shall be made free from any discrimination based on age.” Title VII uses similar
language in its federal and non-federal provisions. Do these differences matter in deciding whether the
statutes require but-for rather than mixed-motives causation?
Courts have split in considering the motive requirement for the federal-sector portion of the ADEA. The
Eleventh and Ninth Circuits have held that the federal-sector provision, like the ADEA’s main provisions,
requires that age be the but-for cause of the employee’s harm. If the record shows that the employer had
mixed motives, and would have taken the same action regardless of age, the employer would prevail. The
D.C. Circuit, in contrast, has held that a showing of mixed motives—proof age was “a factor,” but not the
deciding factor—will suffice. The court pointed to the federal-sector ADEA’s “sweeping language”—
instructing that employees be free from “any” age-based discrimination—in distinguishing it from the
non-federal provision.
Against this background, Babb asked the Supreme Court to review her ADEA and Title VII claims and
the United States agreed that the issues called for high court review. The Court granted review limited to
the ADEA question. The key question for the Court is how to construe the federal-sector ADEA’s use of
the phrase “shall be made free from any discrimination based on age.”
Background of Babb v. Wilkie
Norris Babb, a pharmacist for the Department of Veterans Affairs (VA), alleged that the VA denied her
and all other women pharmacists over age 50 training and certification they needed to advance. Men and
other, younger women, she asserted, received these benefits. After Babb helped women coworkers over
age 40 to file discrimination complaints, the VA denied her promotion in favor of younger women. Babb
filed a discrimination claim based on the ADEA (claiming age discrimination) and Title VII (alleging
discrimination based on sex and retaliation for her participation in other employees’ complaints).
A federal district court granted summary judgment to the VA. On appeal, Babb argued that the court
should have considered her claim that the VA acted out of mixed motives—that is, it impermissibly
denied her promotion in part because of age and retaliation, even if other, non-actionable factors also
contributed to the decision. The Eleventh Circuit upheld the decision against Babb. It would not be
enough that age bias or retaliation factored into the decision, the court held, so long as the VA would have

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denied Babb’s promotion without considering age or retaliation. In Babb’s case, managers explained that
she lacked relevant experience and had criticized other employees during her interview.
The circuit court noted with concern, though, the textual differences in the ADEA’s federal-sector
provision, pointing out the language was “quite unlike” that governing other, non-federal employees and
that this might suggest federal employees could prevail with a showing of mixed motives. The court
acknowledged, however, that its prior precedent required federal and non-federal ADEA claimants meet
the same standard; each must show that age was the deciding factor or but-for cause of an unfavorable
workplace decision.
In her briefing to the Supreme Court, Babb emphasized the federal-sector ADEA provision’s use of the
phrase “shall be made free from any discrimination based on age,” language absent from the text
governing other employers. She argued that the language allowed federal workers like her to prove
discrimination when an employer uses age or retaliation as a motivating factor. Being “free from any
discrimination,” she posited, means barring age from the workplace “decision-making process,” not
merely its outcome.
Others have read ADEA’s federal-sector provision this way, Babb pointed out. The D.C. Circuit has held
that Congress deliberately provided federal employees with broader protection than private employees
under the act. The Equal Opportunity Employment Commission (EEOC) and the Merit Systems
Protection Board similarly allow federal employees to claim mixed-motive discrimination in agency
adjudication. Agencies’ assessment that the imprecise statutory language in the ADEA calls for mixed-
motive analysis in assessing federal-sector age discrimination claims, Babb’s counsel contended, warrants
the Court’s deference.
In response, the government argued that “discrimination” in personnel actions typically describes making
a less favorable decision for an impermissible reason, rather than merely considering an impermissible
factor along the way. The Supreme Court has repeatedly held that statutory phrases like “based on” and
“because of” in anti-discrimination statutes require that a discriminatory motive be decisive—an
unsurprising interpretation, the government explained, given that but-for causation is “the default rule” in
tort law. The government urged the Court to resist introducing “anomalies in federal anti-discrimination
law.” Congress would have used more deliberate language, in the government’s view, had it wanted to
create a separate standard for federal employees under the ADEA. As for deference to agencies’
interpretation, the government contended that agency regulations did not provide the relief Babb sought
and administrative guidance and agency decisions did not effectively apply the statutory language.
At argument on January 15, Justice Ruth Bader Ginsburg suggested that the government’s reading of the
ADEA’s federal-sector provision would render its “extra words” mere “surplus.” Justices concentrated on
the distinction between an employer’s decision-making process versus its outcome, asking if the “actions”
the statute governed included deliberations or only the final result. Chief Justice John Roberts asked if a
plaintiff could prevail whenever a deciding official made a comment on age, such as “OK, Boomer.” If so,
the Chief Justice suggested, the statute might devolve into “a regulation of speech in the workplace.”
After the argument, the Justices ordered supplemental briefing on whether other laws, including civil
service laws, offered relief on a mixed-motive theory. In the supplemental brief, Babb’s counsel stated
that civil service laws are not “directly enforceable,” meaning that the laws set up rules governing internal
policies, but individual workers cannot sue to enforce those rules. The government emphasized that civil
service and other administrative and oversight mechanisms “provide the same basic prospective relief by
preventing agencies from adopting or continuing impermissible age-based policies.” The Court will likely
decide the case by late June.

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Potential Outcomes and Legislative Implications
The call for supplemental briefing may signal the Justices’ wish to decide the case on grounds specific to
the federal-employment context, perhaps by concluding that Congress drafted the federal-sector ADEA
with preexisting merit-systems protections in mind. Those protections generally prevent government
officials from including any non-merit factor, including age, in employment decisions, practices, and
policies whether or not age amounts to a but-for cause of any employment decision. The fact that the
federal government already mandated merit systems principles may explain why Congress would set a
different standard for federal employers in litigation.
Whatever the result, the Court’s decision will likely reconcile a circuit split, resolving how lower courts
will construe the ADEA’s federal-sector provision, and clarify whether federal and non-federal claims
have the same causation requirement. Even though the Court has elected not to address the similar
federal-sector retaliation language in Title VII, its reasoning in Babb will likely influence that provision’s
application. So far courts have concluded that the Title VII federal-sector retaliation provision requires a
showing of but-for causation, while the EEOC has taken the opposite approach and applied a mixed-
motive analysis.
Babb may more broadly clarify when courts should apply a but-for causation standard in
antidiscrimination measures. The Court could, for example, emphasize but-for causation as a default rule,
as it did in a similar decision on March 23, Comcast Corp. v. National Association of African American-
Owned Media. In that case, the Court took up the causation question under Section 1981 of the Civil
Rights Act of 1866, which bars racial discrimination in contracts. The nineteenth-century statute used
language unlike modern antidiscrimination measures, affording “[a]ll persons” the “same right ... to make
and enforce contracts ... as is enjoyed by white citizens.” Though Comcast concerns Section 1981, the
question presented in the case was largely the same as often arises under modern antidiscrimination
statutes; it required the Court to decide whether the plaintiff must allege that race was the reason Comcast
refused to broadcast his independent TV channels, or if it is enough that race was a “motivating factor.”
The Comcast Court concluded that a plaintiff must allege “but-for” causation and emphasized this as the
“typical[]” default rule. Babb will thus provide the Court’s second opportunity to clarify
antidiscrimination causation requirements. The Court’s holdings in the two cases may inform
interpretation of existing measures and drafting of future ones.
Whichever way Babb comes out, it may prompt Congress to amend the ADEA, Title VII, or both.
Congress could, for example, clarify whether federal and non-federal employees are subject to the same
causation standard. It may elect to add federal employees into the statutes’ main provisions if uniformity
is preferable. Congress may also consider amending the ADEA, portions of Title VII, and other, similar
antidiscrimination statutes to apply uniformly the mixed-motives standard it added to Title VII in 1991.
Under that standard, an employee may prevail if discrimination played a role in her mistreatment, even if
other factors determined the outcome. The employee’s remedies in this circumstance, however, are
limited to declaratory relief, injunctive relief, and attorney’s fees. Back pay and reinstatement are
unavailable.
Recent proposals along these lines, H.R. 1230 and S. 485, would extend the mixed-motives analysis and
limited remedies to ADEA claimants generally. They would also apply the standard to retaliation claims,
including those under Title VII, for both federal and non-federal employees. The bills further propose
similar changes to two statutes reaching disability discrimination, the Americans with Disabilities Act and
the Rehabilitation Act. One stated purpose of S. 485 is to reject the Court’s conclusion that prior failure to
amend statutes other than Title VII suggests an intent to disallow mixed-motive claims.

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Author Information

April J. Anderson

Legislative Attorney




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