Not only will this result in a flood of litigation, but the holding ignores the nature of federal hiring that entails exceptions and affirmative action programs. to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” Thus, the but-for causal language in §623(a)(1)––“because of such individual’s age”––is an adverbial phrase modifying the verbs (“to fail or refuse to hire,” etc.) 5 Moreover, even if “discriminating with respect to compensation, terms, conditions, or privileges of employment” could be read more broadly to encompass things that occur before a final decision is made, the ejusdem generis canon would counsel a court to read that final phrase to refer––like the prior terms––to the final decision. Nor can it, as one does not exist. Section 633a(a) requires proof of but-for causation, but the object of that causation is “discrimination,” i.e., differential treatment, not the personnel action itself. Given this established backdrop, the question becomes whether the federal-sector provision of the ADEA contains sufficiently clear language to overcome the default rule. WILKIE BABB Opinion of the Court if age discrimination played a lesser part in the decision, other remedies may be appropriate. . Pp. Based on the non-discriminatory factors, employee A (the 35-year-old) is given a score of 90, and employee B (the 55-year-old) gets a score of 85. In 2004, Noris Babb joined the C.W. 4(a)(2)) (1976); 4 Oxford English Dictionary 521 (def. The Court begin by explaining that the analysis must âbegin with the text of the statuteâ and the Court then quickly noted that in this case âas it turns out, it is not necessary to go any further.â. Affirmative action exists for people with disabilities, both in competitive and noncompetitive employment. See id., at 19–20. The Court’s rule, by contrast, raises the possi bility that agencies will be faced with a flood of investigations by the EEOC or litigation from dissatisfied federal employees. the ADEA”); e.g., Exec. Under §633a(a), the type of discrimination forbidden is “discrimination based on age,” and “[i]n common talk, the phrase ‘based on’ indicates a but-for causal relationship.” Safeco Ins. Southwestern Medical Center v. Nassar, 570 U. S. 338, 346 (2013) (quoting various provisions of the Restatement of Torts (1934)). We hold that §633a(a) goes further than that. Justice Sotomayor filed a concurring opinion in which Justice Ginsburg joined. I respectfully dissent. Regardless, where the statute’s words are unambiguous, the judicial inquiry is complete. Thus, under §633a(a), a personnel action must be made “untainted” by discrimination based on age, and the addition of the term “any” (“free from any discrimination based on age”) drives the point home.3 And as for “discrimination,” we assume that it carries its “ ‘normal definition,’ ” which is “ ‘differential treatment.’ ” Jackson v. Birm-ingham Bd. The Veterans Preference Act of 1944 entitles certain veterans, their spouses, and their parents to preferences in hiring and in retention during reductions in force. On April 6, 2020, the U.S. Supreme Court decided Babb v. Wilkie, holding that the federal-sector provision of the Age Discrimination and Employment Act of 1967 (ADEA), 29 U.S.C. v. Doyle, 429 U. S. 274 (1977). First up this week, in Babb v. Wilkie (No. Petitioner Noris Babb, a clinical pharmacist at a U. S. Department of Veterans Affairs Medical Center, sued the Secretary of Veterans Affairs (hereinafter VA) for, inter alia, age discrimination in various adverse personnel actions. Programs such as these intentionally inject race, sex, and national origin into agencies’ hiring and promotion decisions at the express direction of the President or Congress. 18-882) , the Court held delivered a lopsided victory to age-discrimination plaintiffs in the federal sector, holding that they need not show that discrimination was the but-for cause of an adverse employment action in order to recover under the federal-sector provision â¦ Healthy City Bd. 3–14. Accordingly, the Government argues, because §633a(a) does not say expressly that consideration of age is unlawful, we should conclude that mere consideration is insufficient to trigger liability. That reasoning obviously has no application here. Federal hiring is riddled with exceptions and affirmative action programs, which by their very nature are not singularly focused on merit. I would probably argue for the ultimate but-for charge. First, the Court does not foreclose §633a claims arising from discriminatory processes. Thus, §633a(a) plaintiffs who demonstrate only that they were subjected to unequal consideration cannot obtain reinstatement, backpay, compensatory damages, or other forms of relief related to the end result of an employment decision. 5 U. S. C. §§2108(3), 3502, 3309; 5 CFR §211.102 (2019). The Federal Equal Opportunity Recruitment Program requires agencies to implement recruitment plans for women and certain underrepresented minorities. The Government’s only other textual argument is that the term “made” refers to a particular moment in time, i.e., the moment when the final employment decision is made. Lehman, 453 U. S., at 166, n. 14. This is a direct contrast from the syntax in the public-sector provision which focuses on age being a cause of differential treatment, not necessarily of the personnel action. I would not follow such an unusual course. Jun 04 2019 DISTRIBUTED for Conference of 6/20/2019. . The Government’s primary argument rests not on the text of §633a(a) but on prior cases interpreting different statutes. 11–13. See, e.g., Brenton W. v. Chao, 2017 WL 2953878, *9 (June 29, 2017); Arroyo v. Shinseki, 2012 WL 2952078, *4 (July 11, 2012). I join the majority opinion because I agree that 29 U. S. C. §633a imposes liability even when age is not a “ ‘but-for cause’ ” of a personnel action. This interpretation, the Government contends, follows both from the meaning of the statutory text and from the “default rule” that we have recognized in other employment discrimination cases, namely, that recovery for wrongful conduct is generally permitted only if the injury would not have occurred but for that conduct. The Court, in applying the terms of the statute, made it clear on several occasions that there is a violation to Â§ 633a(a) of the ADEA when age âplays any part in the way a [personnel] decision is made. Two matters of syntax are critical. This language is quite different from that of 29 U. S. C. §633a(a). Section 633a(a) of the ADEA expressly imposes liability if age discrimination plays. The Court then examined the terms âfree fromâ and âanyâ concluding based on several dictionary definitions that the term âfree fromâ means that âa personnel action must be âuntaintedâ by discrimination based upon ageâ and that the use of the term âanyâ drives that point home. 4 Beyond this, the Government’s only other textual argument is that the term “made” refers to a particular moment in time, i.e., the moment when the final employment decision is made. 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