A pair of recent appellate decisions makes clear that the burden of proof for
establishing a claim for age discrimination against a federal government entity is
somewhat lower than the more stringent standard which applies to state and
local governments, as well as private employers. Decisions by the U.S.
Supreme Court and the 1st Circuit Court of Appeals establish that a plaintiff
seeking recovery under the Age Discrimination in Employment Act (ADEA) need
only prove that age was merely one of the factors considered in connection with
an adverse employment action by an employer in the “federal sector,” while a
plaintiff asserting a claim against any other government entity or private
employer must go further, and prove that age was the “but-for cause” of the
In Babb v. Wilkie, 140 S.Ct. 1168 (2020), the 53-year-old plaintiff worked as a
clinical pharmacist at a U.S. Department of Veteran Affairs Medical Center.
Babb claimed that over a two-year period, the VA took away a designation which
made her eligible for a promotion, denied her training opportunities, passed her
over for other positions, and reduced her holiday pay. Babb filed suit under the
federal provision of the ADEA against the VA claiming, among other things, she
was subject to age discrimination.
The Supreme Court granted certiorari to resolve a split among the appellate
courts in the various federal circuits regarding the proper interpretation of the
ADEA’s federal sector provision, which provides that personnel decisions made
by federal government entities must be made “free from any discrimination
based on age.” Following a thorough analysis of the syntax of the statutory
language, the Court determined that Babb need only show that age was merely
a factor in the employment decisions in order to establish liability. The Court
recognized, however, that the statutory language applicable to other entities
was different, and that a plaintiff filing suit against a private employer or state
and local governments would need to show that age was the but-for cause of
the employer’s decision.
Less than six weeks after the Supreme Court’s ruling, the First Circuit Court
of Appeals affirmed the but-for causation standard for private entities. In Zabala-
De Jesus v. Sanofi-Aventis Puerto Rico, Inc., 959 F.3d 423 (1st Cir. 2020), the
plaintiff filed suit against his former employer alleging that when two positions in
his company were consolidated into one, he was terminated in favor of the
younger employee. However, the employer was able to show that before
Zabala-De Jesus was terminated, it had conducted an extensive examination of
the two employees in consideration for the new role. Unfortunately for the
plaintiff, his performance reviews and experience with the company did not
stack up to the other, younger candidate. The 1st Circuit held that in light of the
thoughtful consideration of the candidates’ qualifications, the employer had
shown a “legitimate, non-discriminatory reason” for the decision, and the plaintiff
could not meet his burden to show that the employer’s rationale was merely a
pretext for discrimination, and that his age was the true reason for the adverse
While the First Circuit decision in Zabala-De Jesus does not mention the
Supreme Court’s decision in Babb, it supports the conclusion that the “but-for”
standard of causation continues to apply outside the context of the federal
sector provision in the ADEA. Nevertheless, any employer hoping to steer clear
of a discrimination claim would be wise to avoid any consideration of an
employee’s age in making employment decisions.
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