“The statute does not say that ‘it is unlawful to take personnel actions that are based on age;’ it says that ‘personnel actions… shall be made free from any discrimination based on age’….As a result, age must be a but-for cause of discrimination — that is, of differential treatment — but not necessarily a but-for cause of a personnel action itself.”
On April 6, 2020, the Supreme Court of the United States held that 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.
The holding of this statute only applies to federal employees, because of the specific language of the specific statute only applicable to federal employees.
The federal government violates the statute if age plays any role in the process even if the role is not outcome determinative.
However, if the role was not outcome determinative, the federal employee is likely limited at least on that claim to injunctive and other forward-looking relief.
This could be used to try to argue in other cases where there is not but-for causation relief should be similarly limited. To that extent, this is change of note for all employees.
If you are federal employee who thinks a personnel action you have suffered by have been tainted by age, then please feel free to contact one of our employment attorneys to see if we think could help you, and especially if think you have a strong case, as the recent decision really illustrates how complex employment laws can be for federal employees.