Article Summary

In holding that the Age Discrimination in Employment Act prohibits all discrimination against older federal employees, Justice Samuel Alito's 8-1 opinion in Babb v. Wilkie may state the obvious — yet still it offers a welcome break from the recent tyranny of "but-for" causation in civil-rights cases before the U.S. Supreme Court. Now that we know the magic words to stop bias at all stages of an employment decision, it's time to ask why all anti-discrimination statutes aren't written this way.

This expert analysis by TELG managing principal R. Scott Oswald was published by Law360 on April 14, 2020.

Originally published in:

For a Real Anti-Bias Statute, Look for the “Free From” Label

By R. Scott Oswald

Many grocery stores nowadays use a special “Free From” label to promote products that contain no trace of shady ingredients such as high-fructose corn syrup.

Last week the U.S. Supreme Court gave us a new reason to seek out “Free From” phrasing — as a marker of pure anti-discrimination statutes that enjoin all bias, rather than only those actions that provably change an outcome.

With this new roadmap, the U.S. Congress now should start adding its own “Free From” text to civil-rights laws that need stronger enforcement.

The court’s April 6 decision in Babb v. Wilkie concerns the federal-sector provision of the Age Discrimination in Employment Act (ADEA), which requires that “personnel actions affecting [federal] employees or applicants for employment who are at least 40 years of age … shall be made free from any discrimination based on age” (emphasis added).

The law’s text means what it plainly says, Justice Samuel Alito writes in an 8-1 opinion: Covered personnel actions — which includes “most employment-related decisions” in the federal sector — must be “untainted by any consideration of age.”

On the one hand, this is the height of obviousness: The whole point of an anti-discrimination law such as the ADEA, after all, is to prohibit discrimination.

On the other hand, it’s nice to know that the high court isn’t in complete thrall to the notion that the only way to prevail in a discrimination case these days is to prove “but-for” causation of an adverse action — a strict standard that offers no legal relief to employees who can show that they faced real bias but who, for instance, would have lost a certain promotion anyhow.

In Babb, Justice Alito still distinguishes between these two scenarios — discrimination in the process and discrimination affecting the outcome — and offers differing levels of redress for each. But his general two-tier approach, along with a helpful concurrence from Justice Sonia Sotomayor and a related concurrence last month from Justice Ruth Bader Ginsburg in Comcast Corp. v. National Association of African American-Owned Media, sketches a path forward for legislators and lower-court judges who truly wish to root out bias.

Shared Aspects of Babb and Comcast

Justice Alito’s opinion in Babb mentions the earlier Comcast decision only in passing, but the two cases offered variations on a theme: How much discrimination is tolerable under a law that purports to level the playing field for a disadvantaged class — older workers under the ADEA for Babb, or non-white people under 42 U.S.C. § 1981 for Comcast?

In his unanimous Comcast opinion on March 23, Justice Neil Gorsuch punted on that question: Section 1981 plaintiffs must prove that race was the “but-for” cause of their injuries, he said — but he left for another day whether such injuries may arise only from a discriminatory outcome, or whether it’s also unlawful to discriminate along the way.

Section 1981 is a civil-rights law dating back to 1866, guaranteeing all persons the “same” right to make contracts “as is enjoyed by white citizens.” On its surface this admonition is just as absolute as the federal-sector provision of the ADEA: For non-white people to enjoy the “same” rights, their experience must be “free from” discrimination.

Comcast was a uniquely messy case, however, placing Section 1981 far outside its normal context of employment disputes. November’s oral argument was a botched affair, without clarity even on what the plaintiff sought, and Justice Gorsuch’s instinct to limit his opinion to the law’s initial pleading standard may have been wise.

“We need not and do not take any position on whether § 1981 as amended protects only outcomes or protects processes too,” he wrote, sealing a 9-0 vote by reserving judgment on an issue close to the heart of Justice Ginsburg — and perhaps others, too.

Ginsburg Sets the Table for Babb

In her Comcast concurrence, Justice Ginsburg was not so shy: Section 1981’s guarantees are “an empty promise without equal opportunities to present or receive offers and negotiate over terms,” she said — and any interpretation that “countenances racial discrimination so long as it occurs in advance of the final … decision” cannot be squared with the law’s sweeping civil-rights purpose.

Specifically in the employment realm, noted Justice Ginsburg, an employer violates Section 1981 if it imposes extra costs or requirements on Black job applicants because of their race — even if a plaintiff who complained of such discrimination wouldn’t have won the job anyhow.

It’s puzzling that her liberal colleagues didn’t join the Comcast concurrence, but in any case Justice Ginsburg needed to wait only two weeks for an even plainer statement of her principles — from Justice Alito, of all people.

In Babb, Justice Alito offers a simplified example of illegal “process discrimination” as it might occur under the federal-sector provision of the ADEA. His hypothetical is worth quoting in full, since it illustrates perfectly the manifest injustice of a “but-for” standard that is now being applied as a default to other employment statutes — and, indeed, to non-federal employees under the ADEA itself:

Suppose that a decision-maker is trying to decide whether to promote employee A, who is 35 years old, or employee B, who is 55. Under the employer’s policy, candidates for promotion are first given numerical scores based on non-discriminatory factors. Candidates over the age of 40 are then docked five points, and the employee with the highest score is promoted. Based on the non-discriminatory factors, employee A (the 35-year-old) is given a score of 90, and employee B (the 55-year-old) gets a score of 85. But employee B is then docked 5 points because of age and thus ends up with a final score of 80. The decision-maker looks at the candidates’ final scores and, seeing that employee A has the higher score, promotes employee A.

This decision is not “made” “free from any discrimination” because employee B was treated differently (and less favorably) than employee A (because she was docked five points and A was not). And this discrimination was “based on age” because the five points would not have been taken away were it not for employee B’s age.

It is true that this difference in treatment did not affect the outcome, and therefore age was not a but-for cause of the decision to promote employee A. … But under the language of [the federal-sector provision of the ADEA] this does not preclude liability.

Exactly so. But let’s ask the obvious follow-up: Why would such a blatant scheme be allowed under any provision of a law that purports to fight age discrimination? Justice Alito struggles to explain that, in the case of the private-sector provision of the very same law, “the syntax … is critically different from that of [the federal provision], where, as noted, the but-for language modifies the noun ‘discrimination.'”

Of course this is hypertechnical nonsense — but for the moment we must accept the “syntax” explanation as the price of distinguishing Babb from Gross v. FBL Financial Services, Inc., a wrongly decided case from 2009 in which Justice Clarence Thomas set the ball rolling on “but-for” standards in discrimination cases.

Unsurprisingly Justice Thomas is the lone dissenter in Babb, which he asserts will do “serious damage to our interpretation of antidiscrimination statutes.” The “sweeping” effect of last week’s decision, he warns, may be felt most immediately in cases involving the federal-sector provision of Title VII: Since that measure shares the “free from” text, he observes, Babb “presumably applies to claims alleging discrimination based on sex, race, religion, color, and national origin as well.”

I know plenty of plaintiff attorneys who hope to prove him right.

Justice Thomas also notes — correctly, it would seem — that affirmative action programs for government employees may fall afoul of a broadly applied Babb rule. Such complications can be easily addressed, however.

Remedies for ‘Process Discrimination’

Justice Alito’s opinion in Babb leaves a crucial question up in the air: For victims of process discrimination — those docked five points in his hypothetical scenario — what redress is available if, as all the justices seem to agree, plaintiffs can’t demand an employment action that they wouldn’t have won on a level playing field?

Justice Thomas observes that the ADEA itself does not provide an answer. Justice Alito is wishy-washy on the matter: “Remedies should not put a plaintiff in a more favorable position than he or she would have enjoyed absent discrimination, [but] plaintiffs can seek injunctive or other forward-looking relief.” District courts, he suggests, should take the first crack at fashioning such remedies — and he doesn’t directly rule out damages.

Justice Sotomayor goes further in her concurrence. Joined by Justice Ginsburg, she sensibly suggests that the ADEA should allow any monetary damages that would be required to make a plaintiff whole, such as out-of-pocket costs for taking a “discriminatorily administered aptitude test.” In her Comcast concurrence, meanwhile, Justice Ginsburg notes that the plaintiff’s pleadings under Section 1981 allege a six-figure cost for jumping through hoops that weren’t required of similarly situated white-owned businesses, which presumably would require damages if liability were allowed.

The reasoning of Babb, in short, provides a framework for plaintiffs who can demonstrate real injustice and wish to hold a discriminator to account for wrongdoing that falls short of a provably biased result. At least for federal employees facing discrimination, and perhaps also for race plaintiffs under Section 1981, there now exists a tool for fixing a broken system — even if their personal upside is limited.

For everyone else, we have the inexorable logic of Justice Alito’s hypothetical in Babb. Can our highest court truly believe it was Congress’ design to forbid the discriminatory docking of points from older employees — or Black employees, or female employees, or Muslim employees — under some civil-rights provisions only to permit it under others, depending solely on “syntax”?

And if the answer is “yes,” isn’t it time to start fixing the lesser statutes so that everyone can benefit from the purity promised by an Alito-endorsed “Free From” label?


R. Scott Oswald is managing principal of The Employment Law Group, P.C.

(Note: This version has been edited slightly from the version published by Law360, and carries a different headline.)