AARP's brief on behalf of a federal employee alleging age discrimination argues that a Supreme Court ruling narrowing the scope of federal age discrimination laws in the private sector is inapplicable to the federal sector.
In July 2004, Betty Fuller (then a 63-year-old civilian employee of the U.S. Department of Defense (DOD)) applied for a promotion. She was one of six applicants rated "qualified" and granted an interview. She was ultimately passed over for a 38-year-old applicant. Over the course of the next several months, Fuller became concerned about comments made in relation to other older employees and she filed an internal EEO complaint in November 2004 alleging age discrimination. Soon after filing that complaint, her employer began to investigate her for drug use despite no drugs found on her person or in her car. Fuller was ordered to a drug rehabilitation program, suspended for 15 days and shortly thereafter she resigned. She sued DOD, alleging age discrimination and EEOC complaint-related retaliation.
A court found for her on the discrimination claim, against her on the retaliation claim and awarded her $10,000 in back pay. Soon afterward, the U.S. Supreme Court handed down its decision in Gross v. FBL Financial (2009), which altered the standards by which age discrimination complaints must be assessed, and the government moved for reconsideration based on that decision.
The 5-4 Gross decision denied older workers the protections afforded by non-age related civil rights laws, and in so doing punched an enormous hole in the federal Age Discrimination in Employment Act (ADEA). The ruling flat-out denied age discrimination victims any redress in a mixed-motive case — that is, situations where age is only one of the factors in an employment-related decision. Even if the employee proves that age was one factor motivating 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.
While disappointed with the ruling in Gross, AARP argues that Fuller's case is different. The employer in Gross was private sector and covered by the section of the ADEA that prohibits discrimination "because of" age. In contrast, the ADEA's federal sector provision states that all personnel decisions of agencies of the federal government "shall be made free from any discrimination based on age." In its brief filed by AARP Foundation Litigation attorneys, AARP argues that this language is broader than that narrowly construed in Gross. One federal appeals court has already agreed that the "but-for" causation requirement of Gross is inconsistent with the federal sector provision of the ADEA.
What's at Stake
Gross has been misconstrued by many lower courts to require proof that age was the sole cause of the adverse employment decision. While AARP is working to have Congress overturn Gross, AARP Foundation Litigation will continue to file briefs in cases seeking to minimize the effects of that misguided Supreme Court decision.
Fuller v. Gates is before the U.S. Court of Appeals for the Fifth Circuit.