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Pro Bono Victory Connects New Age Bias Test to Title VII’s Federal Sector Anti-Discrimination Protections

April 6, 2021
Team of Latham litigators notches a victory in complicated federal-sector employment discrimination case.

A team of Latham litigators has secured another victory in Babb v. Wilkie, a complicated age and sex discrimination case protecting government employees from job discrimination. In April 2020, the US Supreme Court ruled in favor of Latham’s client Dr. Noris Babb, holding that federal employees can sue under the Age Discrimination in Employment Act for age bias when age is a motivating factor in an employment decision, even if it is not the but-for cause of that decision. In late March 2021, the Eleventh Circuit extended that ruling, holding that Title VII of the Civil Rights Act of 1964 likewise requires federal agencies’ personnel decisions “[to] be made free from any discrimination.” This decision allows our client to continue pursuing claims that her employer retaliated against her in violation of Title VII of the Civil Rights Act and illegally subjected her to a hostile work environment, and has ramifications for other federal employees who have been victims of retaliation or discrimination based on race, sex, or religion. 

Washington, D.C. associate Maggie Upshaw, who argued the case in the Eleventh Circuit, notes that “the Court’s clear and unconditional decision ensures the essential principle that discrimination has no place in federal employment. The ruling is gratifying for our client, and for all those federal employees who may face discrimination in the workplace.”  

The case arose when Babb, a clinical pharmacist at a US Department of Veterans Affairs medical center in Florida, alleged that she had been subjected to age discrimination and retaliation in several personnel actions. Specifically, Babb claimed that her supervisors discriminated against her on the basis of age and retaliated against her for protected activity between 2011 and 2014 when they passed over her for a new position, denied her various training opportunities, and reduced her holiday pay. 

After Babb sued the Secretary of Veterans Affairs, the district court granted the government’s summary judgment motion. The Eleventh Circuit affirmed, citing binding circuit precedent that age discrimination does not violate the ADEA unless a plaintiff conclusively proves that the discrimination was the but-for cause of an adverse personnel action. The Supreme Court reversed that ruling, departing from a long trend in its decisions imposing stringent but-for causation as the default rule under the federal employment laws. As the Eleventh Circuit has now recognized, the Supreme Court’s decision has far-reaching consequences for federal government employees seeking to vindicate their rights not only under the ADEA, but also under Title VII’s identically worded federal-sector provision (read more about Latham’s victory in that case). 

In addition to Maggie Upshaw, the pro bono team included partner Roman Martinez (who argued the case in the Supreme Court) and associate Samir Deger-Sen.