On April 6, 2020 the US Supreme Court issued an opinion clarifying the circumstances under which a federal employee can prevail in a case of age discrimination. This ruling applies only to federal workers because when Congress extended age discrimination protection to federal employees in 1974 it used different language than it used in the original act which applied to private employers. There is no basis in this opinion that it can or would ever be extended to private employers.
The ruling is very narrow, because while it still requires federal employee plaintiffs to prove that “but for age discrimination”[i] the government would not have taken the personnel action[ii] to recover remedies such as, reinstatement, back-pay, front-pay, or compensatory damages. Under the ruling plaintiffs can seek injunctive relief it age discrimination played ANY PART of the process to make the decision.
The US Supreme Court ruled that processes to make personnel actions must be “free from discrimination based on age.” Even if the government had other reasons to take the action, the fact that age discrimination played a role in the process taints it. The Court allowed such plaintiffs to seek injunctive relief and prospective relief (whatever that means).
The opinion is an interesting discussion of syntax and statutory construction. A reader can tell instantly that the majority wants at all costs to avoid undermining the “but-for” standard for monetary relief, but it sees clearly that the statue does say that the process should be free from discrimination. Click here to read the entire opinion.
The long-term practical value of the new standard announced in this opinion is unclear and unknown. One application that comes to mind is to use some age discrimination in the hiring, discipline, promotion or firing process (assuming a candidate knows about it) as a basis to get an injunction to invalidate the process and start over. This could give a plaintiff leverage in negotiating some sort of favorable outcome. Public interest groups and plaintiffs could also use this as a basis to change procedure or policies believed to be age discrimination on an ongoing basis. As usual time will tell.
[i] age discrimination must be the ONLY reason the government took the adverse personnel action.
[ii] personnel actions include but are/ not limited to decisions related to hiring, firing, suspensions, demotions, transfers, promotions, and denying promotions.