Court affirms federal workers’ age protection

Federal workers 40 and older are entitled to a personnel process “untainted by any consideration of age,” the Supreme Court ruled Monday.

The court ruled 8 to 1 that it is conceivable that Congress meant for federal workers to have higher protection from possible age discrimination than workers in the private sector or employees of state or local governments.

The court’s opinion said a federal worker still must eventually prove that the adverse employment action would not have been taken except for the worker’s age.

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

Justice Clarence Thomas was the lone dissenter.

The case, Babb v. Wilkie, was brought by Noris Babb, a pharmacist for the Department of Veterans Affairs who was in her early 50s when she sued her employer, claiming that she was denied pay raises and promotions partly because of her age.

The Age Discrimination in Employment Act requires those working in the private sector or for state or local governments to show that the determining factor in any discriminatory action is age.

Babb’s lawyers argued that Congress used different language regarding federal workers, meaning they have to show only that age was among several factors that led to the negative action.

The case had received outsized attention during oral arguments because for the first time at the Supreme Court, a justice said “OK, boomer,” a dismissive remark from the younger generation to their elders.

“Let’s say in the course of the weekslong [hiring] process … the hiring person is younger, says, ‘OK, boomer’ … is that actionable?” Chief Justice John Roberts asked Babb’s lawyer, Roman Martinez.

Yes, Martinez replied, if the comment “was one of the factors going into this decision, I think it absolutely would be covered.”