ScotusBlog has coverage of today’s argument in the Supreme Court in Babb v. Wilkie.

“The Supreme Court will decide whether a plaintiff who files suit under that provision must prove that the federal government’s decision concerning their employment would have been different but for age discrimination, or whether the federal government is liable for age discrimination any time it considers an older worker’s age.”

If Babb worked in the private sector or for a state or local government, then her argument would have been foreclosed by the Supreme Court’s decision in Gross v. FBL Financial Services, which held that the ADEA’s private-sector provision requires that plaintiffs show but-for causation. If this holding is to be remedied, it will be up to Congress to do so. But Babb argues that Gross does not apply in cases against the federal government:

However, the ADEA’s federal-sector provision is worded differently from its private-sector counterpart. While the federal-sector provision requires employment decisions to be “made free from any discrimination based on age,” the private-sector version prohibits employers from discriminating “against any individual … because of such individual’s age.”

Babb argues that the differences between the federal and private-sector provisions are both deliberate and significant. 

Babb is the second case this term in which the court will consider whether a discrimination plaintiff must prove “but-for” causation in order to win their lawsuit. The first case – Comcast v. National Association of African American-Owned Media – involves a civil rights statute that dates from 1866 and that bans race discrimination in contracting. 

Employment lawyers are watching these cases closely because they could indicate a turn towards “but for” causation in new statutory contexts, or they could limit the future application of Gross and Nassar.

UPDATE: Here is the transcript from the argument.

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