Fired Pharmacist Gets High Court Reversal in ‘OK, Boomer,’ Case

(AP Photo/J. Scott Applewhite, File)

WASHINGTON (CN) — Three months after the case brought the “ok, boomer” meme into oral arguments, the Supreme Court lowered the bar for a fired pharmacist to allege discrimination.

Florida pharmacist Norris Babb had sought a Supreme Court reversal after the 11th Circuit concluded that she needed to demonstrate what is known as but-for causation to sue the Department of Veterans Affairs for discrimination, meaning that the VA would have promoted her “but for” her age and gender.

Justice Samuel Alito penned the 8-1 ruling this morning, saying but-for causation is necessary for specific types of relief, including reinstatement, back pay and compensatory damages.

“But if age discrimination played a lesser part in the decision, other remedies may be appropriate,” Alito wrote.

Roman Martinez, an attorney for Babb at the firm Latham & Watkins, said the firm is thrilled.

“Today’s decision is a big win for federal employees who face workplace discrimination based on arbitrary characteristics like age or race,” Martinez said in an email. “The court made absolutely clear that federal employment decisions cannot be tainted by discrimination.” 

Babb says she does not need to show but-for causation because the language of the Age Discrimination in Employment Act of 1967 “prohibits any adverse consideration of age in the decision-making process.”

The majority agreed Monday.

“Remedies should not put a plaintiff in a more favorable position than he or she would have enjoyed absent discrimination,” the 14-page opinion concludes. “But this is precisely what would happen if individuals who cannot show that discrimination was a but-for cause of the end result of a personnel action could receive relief that alters or compensates for the end result. Although unable to obtain such relief, plaintiffs are not without a remedy if they show that age was a but-for cause of differential treatment in an employment decision but not a but-for cause of the decision itself. In that situation, plaintiffs can seek injunctive or other forward-looking relief.”

Justice Clarence Thomas was the lone dissent Monday, saying the majority departed from the long-held rule for pleading a claim under federal antidiscrimination law.

“This novel ‘any consideration’ standard does serious damage to our interpretation of antidiscrimination statutes and disrupts the settled expectations of federal employers and employees,” Thomas wrote.

Rejecting the finding that injunctive or prospective relief could be available under the “any consideration” rule, Thomas said his colleagues failed to cite any remedial statutory provision.

“The court’s rule might have some purchase if, as Babb contends, the federal government purposely set up a purely merit-based system for its personnel actions,” he wrote. “But as anyone with knowledge of the federal government’s hiring practices knows, this is hardly the case. Federal hiring is riddled with exceptions and affirmative action programs, which by their very nature are not singularly focused on merit.”

Going on to detail programs that give preferential hiring treatment to veterans or people with disabilities, Thomas emphasized that these initiatives “intentionally inject race, sex, and national origin into agencies’ hiring and promotion decisions at the express direction of the president or Congress.”

Thomas warned that Monday’s reversal will spur “a flood of investigations by the EEOC or litigation from dissatisfied federal employees.”

“So long as those employees can show that their employer’s decision to hire a particular job applicant was ‘tainted’ because that applicant benefited in some way from an affirmative action program, their complaints to enjoin these programs can survive at least the pleadings stage,” he added.

At the New York firm Hoguet Newman, labor and employment attorney Damian Cavaleri said that the reversal for Babb “dramatically expands liability under the ADEA for federal employees.”

“The court took a textual approach to adopt a motivating factor analysis for ADEA liability, broadly interpreting the ‘made free from any discrimination based on age’ language in the statute to apply to the decision-making process, rather than age discrimination being the ‘but-for cause’ of an employment decision,” Cavaleri said in a statement. “Only time will tell whether the ‘flood of investigations by the EEOC or litigation from dissatisfied federal employees,’ as Justice Thomas cautions in his dissent, will come true.”

 The Department of Justice did not respond to an email seeking comment.

Chief Justice John Roberts had invoked the “ok, boomer,” meme during arguments in January, describing a hypothetical scenario about an older worker who encounters a Millennial-aged hiring manager.

“Let’s say in the course of the, you know, weekslong process, you know, one comment about age, you know, the hiring person is younger, says, you know, ‘OK, boomer,’ once to the applicant,” Roberts said to courtroom laughter. “Now you’re only concerned about process. You’re not concerned about but-for causation. It doesn’t have to have played a role in the actual decision. So, is that actionable? … What if he just calls him a ‘boomer?’”

In a concurring opinion, Justice Sonia Sotomayor described an instance where liability, and even damages, might arise from discriminatory processes.

“If, for example, an employer hires a 50-year-old person who passed a computer-aptitude test administered only to applicants above 40, clearly a question could arise as to whether the hiring decision was ‘made free from’ differential treatment,” Sotomayor said, joined by Justice Ruth Bader Ginsburg.

The damages would come into play, she added, “if an applicant incurs costs to prepare for the discriminatorily administered aptitude test.”

%d bloggers like this: