WASHINGTON (CN) — Chief Justice John Roberts treaded into meme territory at Supreme Court oral arguments Wednesday with 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?’”
The heady distinction between “boomer” and “OK, boomer,” faced scrutiny this morning as the justices tackled claims by Florida pharmacist Norris Babb that the Department of Veterans Affairs discriminated against her.
Babb seeks a reversal after the 11th Circuit concluded that Babb needed to demonstrate what is known as but-for causation: that the VA would have promoted her “but for” her age and gender.
Responding to a question by Justice Samuel Alito if the consideration of an applicant’s age at any point in the hiring process would open the door to but-for causation, Babb’s lawyer said it depends on whether the entire hiring process is being reviewed.
“I think if someone could look at the decision-making process and say that age was not a factor at all, then I think a plaintiff would not prevail,” said Latham & Watkins attorney Roman Martinez. “But if age played a significant role at the beginning of the process in some way, then I think it would not be made free from discrimination under the plain language of the statute.”
U.S. Solicitor General Noel Francisco said Congress would have written the law with this in mind if it wanted a “motivating-factor causation standard.”
There was no way the federal government wanted to use a lower standard for determining employment discrimination than the private sector, he added.
“After all, there’s no evidence that Congress was more concerned about discrimination by the federal government,” Francisco said. “That’s why Senator Bentsen, Section 633a’s principal sponsor, said that under 633a, ‘government employees will be subject to the same protections against arbitrary employment based on age as are employees in the private sector.’”
Justice Brett Kavanaugh said this interpretation would let an employer adopt a “younger is better” policy for hiring, but Francisco said an employee applying to a company with such a policy would absolutely be in violation of the Civil Service Reform Act.
This law — which says, “all employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to age” — uses language identical to that found in the Age Discrimination in Employment Act.
Justice Sonya Sotomayor said the government has appeared in this case to suggest that Congress intended employees to have a narrower avenue for litigation.
“So, for a statute that intended to reflect the equal protection clause of the Constitution, which would have covered this on its own prior to the enactment of the statute, you’re now saying Congress intended instead to give litigants less Constructional protection,” Sotomayor said. “Less protection, not more, or equal.”
But Francisco disagreed.
“If Congress had in fact intended to apply equal protection principles, it presumably would have applied the same standard to state governments since they’re subject to the same equal protection principles that the federal government is,” Francisco said. “There’s no evidence that Congress was more concerned about the federal government than the state government. Quite to the contrary.”