I am not sure about blog entry times for the next couple of weeks. Next week, I will be attending and speaking at the Accessibility Professionals Association conference in Round Rock, Texas. Sometime within the next two weeks, I will be testifying as an expert witness in a trial in Houston. So, not sure when or if blog entries will be posted over the next two weeks.


Turning to today’s blog entry, the case of Babb v. Wilkie was recently argued before the United States Supreme Court. The legal blogosphere lit up when Justice Roberts as part of oral argument asked about whether “okay boomer,” was evidence of age discrimination. Even before this argument, back in November of 2019, my colleague Robin Shea had discussed here whether “okay boomer,” was something that was okay within the workplace. When she wrote that blog entry, I back channeled with her with respect to not being a boomer even though I was born in late 1960. I have always preferred myself to be thought of as a bridge to Generation X or as a Gen X and not as a boomer. Robin simply wouldn’t back down. She finally pacified me by saying that putting all boomers together in one category is a mistake. Rather, it makes sense to classify boomers depending upon the TV shows that had a profound influence at the time. So, Robin said she had previously written that early boomers can be classified as Howdy Doody boomers, middle boomers can be classified as Flintstone boomers, and late boomers can be classified as Scooby Doo boomers. I think she may be onto something. I absolutely adored Scooby Doo. I also watched the Flintstones but definitely preferred Scooby Doo over the Flintstones. All that said, I’m still not sure I am not right to think of myself as a bridge to Generation X (I have my friend and legal marketing guru Jeremy Persin), to thank for that or just as Generation X. After all, my markers include but are not limited to: walk on the moon; Nixon’s resignation; and Reagan’s election in 1980. None of those are boomer markers. Finally, I have a 15-year-old daughter, and she and I have had this conversation 😊So, sign me as Scooby Doo boomer, bridge Gen X or early Gen X but NOT boomer.


Turning to the oral argument in Babb v. Wilkie, we get the following:


  1. Everybody agrees that with respect to reinstatement and backpay, “but for” causation is the standard. The question is what is the standard for injunctive relief and under what laws. The agreement between the parties on this question was actually pointed out by Justice Kavanaugh. In response to his question, the attorney responded that a different law might be involved with respect to injunctive relief and other prospective relief, i.e. the civil service protections. It turns out that Justice Kavanaugh may have been onto something because the Supreme Court has now asked for additional briefing on what other laws not containing but for causation might be applicable to the case.
  2. Justice Breyer very clearly is of the opinion that motivating factor is in play with respect to injunctive and other prospective relief. Justice Breyer was able to get the attorney for the plaintiff to basically admit that what the plaintiff was really after was the ability to use motivating factor when it comes to injunctive and prospective relief.
  3. Justice Kagan, Justice Ginsburg, and Justice Sotomayor also seem to be very much on board with Justice Breyer’s motivating factor view.
  4. Justice Roberts by raising okay boomer was raising it as an attempt to discuss and flesh out any motivating factor applicability.
  5. Justice Alito kept referring to a cake batter that has some egg in it when it was supposed to have no eggs in it as an attempt to discuss any factor causation. He did say that, “he had a terrible time getting the solicitor’s argument into the statutory language.” He also wondered about the practicalities of a situation where but for causation was required for reinstatement and backpay but not required for injunctive and other prospective relief. The plaintiff attorney responded to that by saying that injunctive and prospective relief are oftentimes extremely critical in employment discrimination cases.
  6. Justice Sotomayor had no problem with a bifurcated approach.
  7. Justice Thomas was silent but he did write Gross, which said that ADEA in the private sector was but for causation. Also, if you have not read the Enigma of Clarence Thomas yet and are interested in Justice Thomas’s judicial philosophy, I would strongly encourage you to do so. Gross and that book would suggest that Justice Thomas would likely find but for causation across the board.
  8. Justice Gorsuch implicitly wondered out loud whether Gross was decided correctly in the first place.
  9. The public sector ADEA statutory language is very interesting as it says that a person, “shall be free from any discrimination based on age.” So, a lot of argument ensued over whether shall be free from any discrimination modified the rest of that statutory section so as to allow for motivating factor. Interesting, that “on the basis,” did not get a lot of play in the oral argument as to whether that language by itself justified motivating factor.
  10. How does this all relate to the ADA? 1) both statutes use, “on the basis” language (the ADA uses it in title I and in title III); 2) only the public sector ADEA statute uses “shall be free from any discrimination…,” language. That is, you do not find any such language like that in the causation sections of title I, title II, or title III of the ADA (42 U.S.C. §§12112, 12132, and 12182); and 3) as we have discussed here and here, open question as to what “on the basis,” means with respect to whether motivating factor is in play under the ADA.
  11. It doesn’t surprise me at all that the Supreme Court asked for additional briefing on whether other non-but for causation laws applied in light of how the oral argument went. How that briefing affects the final vote total is anybody’s guess.
  12. I have absolutely no idea as to how this case is going to go when it comes to the final decision. Depending upon how that decision is written, there could be significant implications with respect to causation under the ADA, especially titles I and title III.