- A former doctor for the Veterans' Administration will be able to move forward on his claims of age and gender discrimination and retaliation against the federal agency after an appeals court reversed a lower court decision against him, citing a U.S. Supreme Court ruling that adopted a "plaintiff-friendly" standard for federal workers (Durr v. Secretary, Department of Veterans Affairs, No. 17-cv-03045 (11th Cir., April 7, 2021)).
- The 11th U.S. Circuit Court of Appeals said it had held in the past that to succeed under the provision of Title VII under which the federal worker had brought his claims, a plaintiff had to show that the protected activity was the "but for" cause of the adverse employment action. However, following the High Court's April 2020 decision in Babb v. Wilkie, 140 S. Ct. 1168 (2020), the 11th Cir. said it recognized that a plaintiff no longer had to show that his protected activity was the "but for" cause of the adverse action in order to state a claim under the Title VII provision upon which the plaintiff relied. Instead, the appeals court said, a plaintiff's claim survives if discrimination played any part in the way the decision was made. The important question, the court continued, was whether the protected characteristic was the "but for" cause of differential treatment, not whether it was the "but for" cause of the ultimate decision.
- Noting that when it decided the case, the lower court didn't have the benefit of the Supreme Court's decisions or its own appeals court decisions, the court sent the case back to the district court to decide "in the first instance" whether the Bay Pines Veterans Affairs Hospital's adverse employment actions against the doctor satisfied the "free from any discrimination standard."
The U.S. Supreme Court decided Babb v. Wilkie in April 2020; the ruling overall makes it easier for federal employees to sue over age bias. The decision allows such plaintiffs to prevail whenever age discrimination is shown to be part of an adverse employment action, not just in cases where bias is the determining factor.
"In sum, the Babb Court held that the ADEA's federal-sector provision demands that personnel actions be untainted by any consideration of age," according to a blog post by employment attorney Tim Coffield. "However, the presence or absence of but-for causation is important in determining the available remedies. In the absence of but-for causation, the only available remedies may be injunctive or other forward-looking relief."
The legal standard was not changed for private sector employees. For private sector employees to prevail on an Age Discrimination in Employment Act, a plaintiff must prove that age was the "but-for" cause of the employer decision. That standard comes from a 2009 U.S. Supreme Court ruling, Gross v. FBL Financial Services, Inc., that was criticized for making it harder for plaintiffs to prove that age bias had occurred.
Democratic lawmakers have introduced bills that would allow for a more plaintiff-friendly legal standard. The U.S. House of Representatives voted in 2020 to change the standard to one that proponents say would make it easier to prove age bias in the workplace, but the bill didn't achieve traction in the U.S. Senate.