Legal Docket – Setting legal limits of age discrimination

MARY REICHARD, HOST: It’s Monday morning and welcome to another week of The World and Everything in It. Today is the 27th of January, 2020. Good morning to you, I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. Good morning to you! It’s time for Legal Docket, and on today’s agenda: age discrimination.

Now before we get to that, let’s take a moment to remind you of our offer for two months of WORLD Magazine. We are excited about the new look of the magazine, and we want to put it in your hands if you’ve never seen it before—or maybe you have in the past but stopped. This is your opportunity to take a fresh look.

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EICHER: Well, as I said a moment ago, the subject is age discrimination, a newsworthy topic beyond even the Supreme Court case we’ll tell you about. We talked about it on Culture Friday, you may remember. A church in Minnesota seeking to attract a younger congregation by clearing out the older folks, specifically asking its gray haired members to worship elsewhere for a year or so.

REICHARD: As you can imagine, that didn’t go over well. Here’s how a member of Grove United Methodist Church in Cottage Grove felt about it. Here’s what Bill Gackstetter told KARE11 tv.

GACKSTETTER: It made me feel sick that they treat other Methodists like that. I feel it’s totally age discrimination, just wanting youth, the younger families.

Now, the lead pastor says this is strictly about church survival and part of what he calls a “relaunch.”

EICHER: Relaunch or age discrimination. Whatever you call it, when you single out a group of people based on age, it’s really not a good look. But when it comes to employment, age discrimination is more than mere optics. 

As a legal matter it’s illegal. Thing is, it’s gone mostly unchecked, because it’s also very difficult to prove in a court of law.

But that might be changing, partly because of technology.

Help-wanted ads posted online leave a digital record that can reveal systematic discrimination. You might see ads that say, “new college grads welcome to apply,” or “not looking for people with a lot of experience.” Lawyers can take a record like that and show a pattern. 

But for now, it’s tough for an individual alleging age discrimination to win in court. So tough that lawyers often won’t even take such a case. Because lawsuits are costly, and the odds of victory so long, it’s frequently just not worth it.

REICHARD: But a case argued this month at the Supreme Court might change that.  

First, the facts. 

A woman from Florida named Noris Babb worked for the Department of Veterans Affairs as a pharmacist for 16 years. She says the V-A passed her over for training and promotions in favor of younger workers.

So she sued under a law called the ADEA, the Age Discrimination in Employment Act. President Lyndon Johnson signed it into law back in 1967. It applies to federal workers over age 40. It says: “All personnel actions shall be made free from any discrimination based on age.” 

But wait. 

Does that mean employers can’t consider age at all in hiring someone? Even a tiny bit? And if they do, is it enough to win an age-discrimination lawsuit? 

Or does it mean employers can think about age along the way, but age can’t be the dispositive factor in deciding whether to hire or promote?

Babb’s lawyer, Roman Martinez, says his client need only prove the boss considered her age at all.

Listen as Chief Justice John Roberts tries to sort that out with this nod to the zeitgeist. I’ve edited the audio for you to make it easier to follow.

ROBERTS: … let’s say in the course of the…weeks’ long process…one comment about age …the hiring person who’s younger, says, you know, “OK Boomer,” — once to the applicant. …So is that actionable?…. I’m just trying to see how many stray comments do you need and who has to make them before you decide that, although it says “any,” we don’t really mean any, we mean some discrimination that has a particular effect?… I’m just wondering if your position is going to become a really just a regulation of speech in the workplace.

MARTINEZ: Well, of course not your honor.

ROBERTS: Well, of course– then explain how not?

Martinez argued disparaging remarks would be enough to sue over. It would be up to a jury to decide if the words were in fact disparaging. 

His brief mentioned how Noris Babb’s supervisor said she was part of the “mow-mows” who were “always complaining.” Mow-mows she took to mean “grandmothers.” And it wasn’t only Babb. Some other middle-aged people among her colleagues also filed complaints alleging age discrimination.

Martinez argued that it’s too much for an employee to prove conclusively that age was the sole reason for the loss of job opportunities.

Justice Samuel Alito wondered just where in the process of making a job decision do we apply this law?

ALITO: But what happens if age plays no role whatsoever in the actual decision but at some prior point in the process, age was considered…I don’t think your argument depends on whether we look just at the final decision or we look at the whole process. But what would happen in that situation?

MARTINEZ: I think it would — it would depend.

Many of the justices heard “it depends” too many times, and it seemed to flummox them. That’s where the lawyer arguing for the government sought a foothold. Solicitor General Noel Francisco had a clever analogy.

FRANCISCO: Suppose you had a statute that said: all cakes shall be made free from the use of any eggs. In the course of the cake baking process, I whisk up a bowl of eggs, I think about dumping it into the batter, but then I say, oh, I’m supposed to be making a cake without eggs. So I throw it in the trash. I have made a cake free from the use of any eggs, notwithstanding my use of eggs in the cake baking process because the final cake that I have baked is free from the use of eggs.

No egg in the final result, he said, no discrimination in the final decision—an easy rule and the one Congress intended. 

But Justice Alito pressed further.

ALITO: But what if there is a little bit of egg that’s put in the final batter? That’s the problem. So even if we focus right on — just on the actual decision making process, the moment of the decision making process…I have a terrible time fitting your argument into the statutory language. Can you explain how you can do that? 

Well, Francisco referred to the word in the statute: “made,” as in this sentence: “all personnel actions shall be made free from any discrimination based on age.” Meaning, the final employment decision. 

If that had nothing to do with age, then all’s well.

Now, the elephant in the room was of course the ages of the justices hearing this case. Baby Boomers dominate with five: Justices Clarence Thomas, Elena Kagan, Sonia Sotomayor, Alito and the Chief Justice. There’s the two youngest, part of Generation X: Justices Neil Gorsuch and Brett Kavanaugh. And two from the Silent Generation: Justices Ruth Bader Ginsburg and Stephen Breyer. She’s 86. He’s 81, and here Breyer sets up a scenario for government lawyer Francisco.

BREYER: Look, I’m trying to think of where could this come up. A promotion. The promoting person thinks, “I see her result on this test. It’s highly subjective. I’m not sure, but I certainly don’t want people who are over the age of 82.”  et cetera. (Laughter.) You say okay. So —

FRANCISCO: Nobody here —

BREYER: — There he is.

FRANCISCO: — thinks that,Your Honor.

BREYER: It’s flashing around in his mind. And — and so he ends up — yeah, no, the answer is no. Okay? That’s the possible real-world situation. But, more likely, it’s also a question of lawyers and burdens of proof.

Francisco agreed, and pushed for the idea that to qualify as discrimination, the law requires proof that age is the sole driver of an employment decision.

Further, Francisco argued to keep the standard of proof the same across all employees, public and private. In 2009, the Supreme Court made it more difficult for older employees in the private sector to sue. The majority justices in that case said age must be the key factor in employment decisions to prove bias. Francisco argued, why make different standards of proof for federal employees than for state and private employees?

Justice Breyer had a reason why.

BREYER: And you say why would Congress do that? Why would it make the Feds have to do this? For the same reason they passed that statute. The feds should be the leader in this. It’s not enough. The Federal Government should be the leader. So we have states, private, not just federalism.  But who fought more than any group of people for freedom from discrimination? Look at history. It was the Federal Government, and they should be holier than, okay?


BREYER: So we have a reason. We have an interpretation of the statute.

A lot of discussion was around what sort of remedy exists when the courts do find age discrimination. Sometimes it’s not that the individual worker was discriminated against. But during the course of that same discovery systematic discrimination shows up—for example, in the way a company hires or promotes. 

Equitable remedies like an injunction could stop the behavior the ADEA intended to correct.

The decision in this case has wide application. An amicus brief filed in support of Noris Babb says that federal agencies employ nearly 2 million full-time employees. 

Of those, nearly one and a half million are 40 or older and covered by the law. 

Now, with apologies to the Beatles, let me put it this way:

Congress indicates precisely what it meant to say—enacting protections of the ADEA.

Now, maybe you’re not that old yet, but don’t worry. Lord willing, you will be.

And that’s this week’s Legal Docket!

MUSIC: When I get older losing my hair, many years from now. … Indicate precisely what you mean to say, yours sincerely wasting away. … Will you still need me? Will you still feed me, when I’m 64?

(AP Photo/J. Scott Applewhite) Night falls on the Supreme Court in Washington, Wednesday evening, Jan. 22, 2020.

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.

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