Washington D.C. – It would be nearly impossible for federal employees to prove age discrimination unless the U.S. Supreme Court reverses a lower court decision on the standard for liability, according to written arguments filed today by the National Treasury Employees Union.
The case, which involves an employee at the Department of Veterans Affairs, will settle a conflict over the basic showing that federal employees need to make that they were illegally discriminated against based on their age.
NTEU is not a party in the case but filed a brief in support of the employee. The union argues that the higher standard of proof is contrary to the provision of the Age Discrimination in Employment Act (ADEA) that applies to federal employees and would effectively allow age discrimination in federal agencies to go unchecked, which is not what Congress intended when it passed the ADEA.
The federal government should be liable when the employee shows that age was a motivating factor in the personnel action taken against them, NTEU states. The lower court decision that the employee prove that age was the determinative factor in the action against them should be overturned.
“Such a showing would require some sort of smoking gun documentary evidence that is unlikely to exist; an agency admission that would never be obtained; or some other method of disproving whatever bases that the government offer for its action,” NTEU wrote. “Congress could not have envisioned such an employer-friendly process.”
NTEU has a record of helping federal employees who were discriminated against based upon age through unjust removals or performance ratings and holding their employers accountable, just as the law intended.
“The existence of age discrimination in government workplaces is an unfortunate reality,” NTEU wrote.
The case is Babb v. Wilkie, U.S. No. 18-882.
NTEU represents 150,000 employees at 33 federal agencies and departments.