Babb v. Wilke, “OK boomer”
The case, Babb v. Wilkie, was brought by Noris Babb, a pharmacist for the Department of Veterans Affairs who sued her employer, claiming she was denied pay raises and promotions partly because of her age. Chief Justice John G. Roberts Jr. used the phrase “OK boomer” – a derogatory reference from the younger generation to their elders- when questioning Babb’s lawyer. “So calling somebody a ‘boomer’ and considering them for a position would be actionable?” Roberts asked.Yes, Martinez replied, if the comment “was one of the factors going into this decision, I think it absolutely would be covered.”
Supreme Court sides with older workers in age bias suit
Nonetheless, the U.S. Supreme Court sided with older federal workers on Monday, making it easier for those over 40 to sue for age discrimination. The 8-to-1 ruling rejected a Trump administration position that sought to dramatically limit the legal recourse available to federal workers. Noris Babb, a pharmacist in her early 50’s, said she was denied promotions, benefits and training opportunities by the Department of Veterans Affairs at least partly because of her age. A federal district court judge initially threw out Babb’s suit, declaring that she had failed to prove that her age was only reason for these personnel actions. The Trump Administration supported that ruling, and in doing so clashed with the Equal Employment Opportunity Commission. The case revolved around whether federal workers can claim age bias under the Age Discrimination in Employment Act of 1967. Had she worked in the private sector or for a state or local government, she would have had to prove that her age was a determinative reason for the denials — a “but for” cause in the legal jargon. The question for the justices was whether federal workers can win age discrimination suits under a more relaxed standard, showing only that age was one factor among many leading to a negative employment decision. Justice Samuel A. Alito Jr., writing for the majority, said the words of the relevant law allowed Ms. Babb to sue under the relaxed standard. The law says that “all personnel actions affecting employees or applicants for employment who are at least 40 years of age” shall be “made free from any discrimination based on age.” “That Congress would want to hold the federal government to a higher standard than state and private employers is not unusual,” Justice Alito wrote. He added, though, that even federal workers must satisfy the stricter standard to obtain many forms of relief, including reinstatement and back pay. Justice Clarence Thomas, 71, also a member of the post-World War II baby boom generation, dissented.“The court’s holding,” he wrote, “unnecessarily risks imposing hardship on those tasked with managing thousands of employees within our numerous federal agencies.” The outcome stands in contrast to a 2009 decision (Gross v. FBL Financial Services, Inc.) in which the court said age has to be the key factor in a private sector employment decision. The language of the law’s provisions covering private and federal employees is different. Bottom Line: The plain meaning of 29 U. S. C. § 633a(a), the federal-sector provision of the Age Discrimination in Employment Act of 1967, demands that personnel actions be untainted by any consideration of age, but but-for causation is important in determining the appropriate remedy that may be obtained. Reversed and remanded, 8-1, in an opinion by Justice Alito on April 6, 2020. Justice Sotomayor filed a concurring opinion, in which Justice Ginsburg joined. Justice Thomas filed a dissenting opinion.
Archdiocese of Washington v. Washington Metropolitan Area Transit Authority, Religious Advertising Discrimination
The Supreme Court in Archdiocese of Washington v. Washington Metropolitan Area Transit Authority, turned down an appeal from the Archdiocese of Washington, whose request to place religious advertising on public buses during the 2017 Christmas season was rejected by the local transit system. The court passed on reviewing a decision by the U.S. Court of Appeals for the District of Columbia Circuit that upheld the transit agency’s ban on religious messages on buses and trains and in stations as lawful and free from discrimination. The Washington Metropolitan Area Transit Authority was sued by the Archdiocese of Washington for rejecting a proposed advertisement around Christmas 2017. The Diocese wanted to place an ad at Christmastime on buses and trains that read,“Find the Perfect Gift,” which featured a biblical Christmas scene with a link to a website that encouraged people to attend Mass or donate to a Catholic charitable group. The archdiocese sued, saying the policy violated the First Amendment’s prohibition of government discrimination against speech based on its viewpoint. Two justices dissented from the court’s refusal to hear the case. Justice Neil Gorsuch, joined by Justice Thomas, called the transit ad policy “viewpoint discrimination by a government entity and a violation of the First Amendment.” “The Constitution requires the government to respect religious speech, not to maximize revenue,” they wrote. So if the transit authority “finds messages like the one here intolerable, it may close its buses to all advertisements.” Or it could try to restrict ads to subjects “where religious advertisements are less likely to arise without running afoul of our free speech precedents. ” As Gorsuch observed, the court may well take on a similar case in the future, as the conservative majority has aggressively disfavored such restrictions. The problem with this case is that it came from the D.C. Circuit Court of Appeals, a court that now-Justice Brett Kavanaugh sat on when the case was decided. So only eight justices would have heard the case, and they could have deadlocked. Bottom Line: Petition DENIED. Justice Kavanaugh took no part in the consideration or decision of this petition. Statement of Justice Gorsuch, with whom Justice Thomas joins, respecting the denial of certiorari. The Issues which would have been decided: (1) Whether the Washington Metropolitan Transit Authority’s policy of refusing to accept advertisements that promote or oppose religion or reflect a religious perspective violates the First Amendment; and (2) whether that discrimination against religious speech violates the Religious Freedom Restoration Act.