Up until about this morning, I had no idea what I was going to blog on this week. I was thinking I was going to blog on a case in my pipeline that is a tour de force with respect to associational discrimination. However, when I started checking my email, I saw in my law 360 alert that the United States Supreme Court came down with Babb v. Wilkie, which can be found here. The issue before the court was whether but for causation applied to federal employees bringing ADEA claims. In an 8-1 decision (Justice Sotomayor joined by Justice Ginsburg concurred -Justice Ginsburg joined the majority opinion with the exception of footnote 3; and Justice Thomas dissented), the United States Supreme Court held that but for causation applied to damages but not with respect to equitable relief. As usual, the blog entry is divided into categories and they are: key points of Justice Alito’s majority opinion; key points of Justice Sotomayor-Ginsberg joining- concurring opinion; key points of Justice Thomas’s dissent; and thoughts/takeaways. The reader is free to focus on any or all of the categories.

 

I

Key Points of Justice Alito’s Majority Opinion

 

  1. A federal employee still has to show but for causation in order to get ADEA damage based remedies.
  2. If more than one cause exists, equitable relief is possible but not damages.
  3. The ADEA as it applies to federal employees has some very unique statutory phrasing. That statutory phrasing means that liability exists if more than one cause is involved.
  4. The term “based on,” is equivalent to but for causation.
  5. Nassar is cited numerous times by all opinion writers.
  6. Of the Justices in the majority, all except Justice Ginsburg agreed with the proposition stated in footnote 3 that the termination decision is the key reference point for assessing liability. In Justice Sotomayor’s concurring opinion, she elaborates on that a bit.
  7. There is nothing unusual about Congress setting up a system where it is easier to hold the federal government liable for certain actions than holding private actors liable for the same actions.
  8. Where Congress includes particular language in one section of a statute but omits it in another section of the same act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.

 

 

II

Key Points of Justice Sotomayor’s with Justice Ginsberg Joining Concurring Opinion

 

  1. Discriminatory process claims are not foreclosed. So, if individuals over 40 are singled out for discriminatory treatment in the hiring process those claims would not be foreclosed if more than one factor was involved in the decision not to hire that individual.
  2. Damages are available where a person incurs costs associated with the discrimination.

 

III

Key Points of Justice Thomas’s Dissent

  1. While the federal version of ADEA has some very unique phrasing, that phrasing is not sufficient to counteract the presumption of but for causation as established in Comcast, which we discussed here.
  2. The Supreme Court decision saying that but for is necessary for damages but not for equitable relief will make a mess of pleadings.

 

IV

 

Thoughts/Takeaways

 

  1. In light of this case, you can expect every single ADA case to litigate causation especially because the majority opinion equates “based on,” with but for causation.
  2. My blog entry, which can be found here, discussing the decision in Comcast is now a must read for anyone litigating ADA cases.
  3. On the plaintiff side, eight justices agreeing with the proposition that “based on,” causation is equivalent to but for causation is problematic with respect to ADA claims. Again, for the counterpoint on how to deal with that read my Comcast blog entry.
  4. Nassar is cited by everyone. That is not necessarily a bad thing for those pursuing mixed motive causation in ADA claims as we discussed in the Comcast blog entry.
  5. The statement from the majority opinion stating that where Congress includes particular language in one section of a statute but omits it in another section of the same act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion has huge implications for cases involving causation with respect to title II of the ADA. As we mentioned in our Comcast blog entry, causation under title II of the ADA is not the same as under §504 the Rehabilitation Act. Also, title II of the ADA causation provision came after the causation provision in the Rehabilitation Act. The statement from the majority opinion can also be used to argue against because of causation with respect to title I as well. Remember from our Comcast blog entry, the amendments to the ADA specifically changed the “because,” causation that appeared in the original ADA to, “on the basis of” causation.
  6. Justice Sotomayor’s concurrence has significant implications with respect to healthcare professionals going after medical licensing boards and physician health programs for ADA violations if but for is found to work similarly with respect to the ADA. She would allow damages for discriminatory processes and for when a person incurs costs associated with the discrimination. With respect to processes, we discussed some of that in this blog entry. With respect to incurring costs, quite frequently PHP’s make healthcare professionals pay the costs associated with processes that quite probably violate the ADA.
  7. I don’t think I agree with Justice Thomas with respect to how the decision makes a mess of pleadings. What it does do is force plaintiffs to plead in the alternative. That is, they will have a section laying out how what happened was but for causation. Then, they will have a separate section laying out how what happened justifies equitable relief.
  8. The bifurcation of damages versus equitable relief is very important both for pleading purposes and for attorney fees. If a plaintiff is successful in getting equitable relief, then they can get attorney fees.
  9. Definitely look for a Circuit Court split involving with respect to causation under the ADA. As mentioned above, particularly if you are on the plaintiff side, my blog entry discussing Comcast is must reading.

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