Attorneys See Broader Impact of Pending ADEA Federal-Sector Causation Ruling

January 29, 2020

A pending U.S. Supreme Court decision on the standard a federal employee must meet in claiming bias under the Age Discrimination in Employment Act could affect interpretations of Title VII, which has similar language, some employment law experts have predicted.

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The decision “has the potential to create ripple effects throughout the entire Title VII discrimination analysis scheme for the approximately 2.1 million federal sector employees, and applicants, across the country,” said McDermott Will & Emery partner Michelle S. Strowhiro.

Professor Deborah Widiss of Indiana University’s Maurer School of Law said a less stringent interpretation of the ADEA than “but-for” causation “better promotes the law’s objectives.”

Reed Smith partner Lori Armstrong Halber noted the justices’ focus on the differing statutory language in the two provisions and said, “A plain reading of the statute does not support ‘but-for’ causation.”

While the oral argument was wide-ranging, involving stories and an “OK, boomer” reference by Chief Justice John Roberts when asking how significant a factor bias must be, the justices always came back to the statutory language, according to Farrell Fritz partner Domenique Camacho Moran.

“The court is likely to rely on the canons of statutory construction and precedent to determine how much age must infect the process to constitute a violation of law,” Moran said.

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