In University of Texas Southwest Medical Center v. Nassar, the Supreme Court observed that when determining the standard for causation in a discrimination statute, “it is presumed that Congress incorporated tort law’s causation ‘in fact standard’—i.e., proof that the defendant’s conduct did in fact cause the plaintiff’s injury—absent an indication to the contrary in the statute itself.” Under a causation “in fact standard” (hereinafter “but-for”), plaintiffs who claim discrimination need to prove not just that discrimination was a motivating factor in the adverse action, but also that discrimination was the but-for cause of their injuries. That is, were it not for discrimination, the adverse action would not have taken place. 

In this upcoming term, the Supreme Court will decide, in Babb v. Wilkie, whether the  federal-sector provision of the Age Discrimination in Employment Act (ADEA), 20 U.S.C. § 633a(a), requires plaintiffs to prove that their age was not just the motivator, but the cause of the challenged action—e.g., but-for their age, they would not have been fired. Petitioner, Noris Babb, worked as a pharmacist for the Veterans Affairs Medical Center in Bay Pines Florida and alleges, in part, that she was illegally denied a promotion because of her age under Section 633a(a). This provision holds that personnel actions affecting agency employees aged 40 years or older “shall be made free from any discrimination based on age.” This language unambiguously demonstrates that a plaintiffs need only prove that their age was a motivating factor for the action. If the Court requires but-for causation in Babb, it will likely rely on the statute’s inclusion of the words “based on,” even though, in this context, those words only describe the type of discrimination prohibited by the statute. Therefore, if the Court requires but-for causation in Section 633a(a), it would likely also require but-for causation in other anti-discrimination statutes, which prohibit discrimination “based on,” and even “on the basis of” a protected characteristic.

First, the text of the statute indicates that a motivating factor, rather than a but-for causation standard   is appropriate. As the petitioner, Noris Babb, observes in her brief, “Section 633a(a)’s ‘free from’ phrase indicates that personnel actions must be entirely ‘relieved from’ or ‘clear’ of discrimination—i.e. even the smallest amount of discrimination is prohibited.” This supposition is consistent with dictionary definitions which define “free” as “relieved from or lacking something, especially something unpleasant or burdensome.”

Second, the word “any” demonstrates that “the process must be entirely without discrimination.” The petitioners reason that the use of the word “any” acknowledges that there can be different degrees of discrimination. Thus, “any” “distinguishes the decision-making process from one in which ‘some’ discrimination may be allowed, such as a process where discrimination is present but does not directly cause an adverse outcome.” Respondent, Robert Wilkie, Secretary of Veterans Affairs, responds that “[a]lthough the word ‘any’ can sometimes confer an ‘expansive meaning,’ it never has a ‘transformative’ effect and thus ‘never change[s] in the least the phrase that follows it.” Thus, respondents reason that the phrase which follows “any”—“discrimination based on age”—must indicate but-for causation. 

Respondents base this reasoning on the Supreme Court’s holdings in Gross v. FBL Financial Services, Inc. and University of Texas Southwestern Medical Center v. Nassar. In Gross, the Court ruled that the ADEA’s parallel private-sector provision, which prohibits employers from taking adverse action against an employee “because of such individual’s age,”  requires plaintiffs to prove that their age was the but-for cause of the challenged action. The Court reasoned that the ordinary meaning of  the phrase “because of” indicates that age was “the ‘reason’ that the employer decided to act,” and not just a motivating factor. In Nassar, the Court found the phrase, “based on” like the phrase “because of,” “indicates a but-for causal relationship.”  Therefore, because Section 633a(a) uses the word “based on” it must also indicate a but-for causal relationship. 

If the Court accepts this reasoning, it would be choosing to enforce a formal rule despite the dictates of logic. Phrases mean different things in different contexts. As the petitioners observe, while in the private-sector provision the phrase “because of” refers to the adverse action, in the federal-sector provision, the phrase “based on” “simply refers to the type of discrimination prohibited” under the statute. “In this context, ‘discrimination based on age’ and ‘age discrimination’ are synonymous.” To re-read the causation standard simply because the legislature chose the words “discrimination based on age” rather than “age discrimination” would be to manufacture meaning where there is none. If the Court chooses to do so, it is demonstrating that the presumption for but-for causation is sufficiently strong to be maintained purely through artificial linguistic rules.

Even if the statute does not unambiguously demonstrate that “motivating factor” causation is the proper standard, the Equal Employment Opportunity Commission (EEOC), the administrative agency responsible for enforcing Section 633a(a), decided that it was. In Federal Express Corp. v. Holowecki, the Court found the EEOC is entitled to Chevron deference. Under Chevron, the EEOC’s decision should be upheld so long as it is a permissible interpretation of an ambiguous statute. Thus, if the Court requires but-for causation, it would be holding that this is the only permissible reading of the statute. 

The language of the Section 633a(a) was pulled directly from Title VII’s federal-sector provisions, which were enacted two years before the ADEA. Title VII protects against employment discrimination on the basis of race, color, national origin, sex, and religion, and its federal sector provisions mirror the language of Section 633a(a) and mandate that “[a]ll personnel actions . . . shall be made free from any discrimination based on [a protected characteristic.]” If the Court rules that the words “based on” in Section 633a(a) unambiguously require a showing of but-for causation, those words would presumably have the same effect in Title VII.

Moreover, the phrase “discrimination based on [a protected characteristic]” would convey the same meaning as the phrase “discrimination on the basis of

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.” If the Court could not distinguish these two phrases, it could require but-for causation in countless anti-discrimination statutes that prohibit “discrimination on the basis of” protected characteristics.

Although the Court might argue, as it did in Nassar, that such a construction would prevent frivolous claims and preserve resources for “employers, agencies, and courts to combat workplace harassment,” that construction would also discourage meritorious claims, and it would make it that much harder for plaintiffs who  face discrimination—including those for whom discrimination was the but-for cause of their injuries—to prevail in court. As the National Treasury Employees Union explained in an amicus curiae brief, a showing of but-for causation “would require some sort of smoking gun documentary evidence that is unlikely to exist; an agency admission that would never be obtained; or some other method of disproving whatever bases that the government might offer for its action.” The government, in effect, would be empowering its agencies to discriminate despite Section 633a(a)’s broad mandate that employment decisions be made “free from any discrimination.” In so doing it would forsake the policy judgements of the legislature, and the administrative expertise of the EEOC, in the name of formalist rules.