A federal appeals court recently ruled, as AARP urged, that U.S. government employees are not hampered by the same restrictions that limit non-federal employees seeking to fight age discrimination.
Last year, a sharply divided U.S. Supreme Court limited the rights of some victims of age discrimination. Gross v. FBL Financial Services, Inc. held that the federal Age Discrimination in Employment Act (ADEA) does not permit mixed-motives claims (where there is evidence that the employee's age as well as other factors motivated the employer's adverse job decision) against private employers. Instead, the Court said the language in the statute prohibiting discrimination "because of" age means that the employee must prove that age was the "but-for" cause of the employer's decision (the employee must show that age was the "reason" the employer decided to act.)
A recent decision by a federal appeals court held that Gross does not apply to the ADEA claims of federal employees.
Civilian Richard T. Ford sued his employer (the U.S. Navy) for age discrimination. The Navy asserted several work-related reasons for passing over Ford for promotion. Ford argued that his evidence showed that those reasons were a pretext and that the real reason was his age; alternatively, he argued that the evidence showed at least that his age was a motivating factor in the decision to not promote him. The trial court found, that although the promotion process was "tinged" with age, Ford's evidence did not show either that the Navy's reasons for not promoting him were a pretext and that his age was a "determining" factor in the decision or that his age was a "motivating factor" in that decision.
After Ford appealed, Gross was handed down holding that the section of the ADEA applicable to private employers does not permit mixed-motives claims (those based on proof that that age was one of several motivating factors in the adverse decision).
Ford's claim, however, arose under a different section of the ADEA that applies only to federal employees. Unlike the section of the ADEA construed by the Supreme Court in Gross that prohibits discrimination "because of" age, the federal sector provision states that all personnel decisions "shall be made free from any discrimination based on age." Ford contended that, given this language, he presented sufficient evidence to prove his claim on both the pretext and mixed-motives theories of liability. Nevertheless the appeals court found that Ford had not proven his claim under the pretext proof structure; however, the court said that given the "sweeping" language of the federal sector provision in order to assess evidence under the mixed-motives theory, it had to first decide whether Gross applied to federal employees' claims.
The court of appeals agreed with AARP's brief, filed by AARP Foundation Litigation attorneys, that argued that the "but-for" causation requirement of Gross is inconsistent with the federal sector provision of the ADEA mandating that personnel decisions must be "free from any discrimination based on age". Even if the employee proves that age was one factor motivating the employer's decision — in other words even if the employee has proven that discrimination was one of the reasons for the employer's decision — unless he/she is able to exclude other factors, i.e., to show that "age was the reason," under Gross, the employer wins. Therefore, instead of expunging age discrimination from the federal work place as required by the federal sector provision, the but-for causation requirement of Gross actually would permit some amount of age bias to infect the employer's decisions. Thus, having concluded that Gross does not apply, the court of appeals remanded the case so the trial court can decide whether Ford proved his mixed-motives claim.