Federal Contractors Should Tread Carefully Despite Supreme Court’s Decision on Age Discrimination Only Applying to Employees of the Federal Government

On April 6, 2020, the Supreme Court decided Babb v. Wilkie, interpreting the Age Discrimination in Employment Act (ADEA) as it relates to federal government employees. The Court noted the curious language in the Act relating to federal employees differed from the typical language in anti-discrimination statutes.

This language stated that “personnel actions affecting employees . . . who are at least 40 years old . . . shall be made free from any discrimination based on age.” Usually, “because of” replaces “shall be made free from” in anti-discrimination statutes, creating a higher bar for employees to meet to show an employment decision was based on age.

The atypical language provides for a lower standard of discrimination based on age and allows plaintiff employees to assert age does not have to be a “but-for” cause of an employment decision. Importantly, this case was decided narrowly on the language of 29 U.S.C. § 633a(a). This section applies to employees or applicants for employment 40 years or older in military departments, executive agencies, and other named federal institutions.

Private employers are still governed by 29 U.S.C. § 623(a), which does contain the typical higher bar of proof for an employee. This proof must show that “but for” the employee’s age, the employment decision would not have been made. However, when placing employees under the purview of the federal government, it is important to keep the Supreme Court’s decision in mind.

If a contracting agency requests that a federal contractor make an adverse employment decision in any part due to the federal contractor’s employee’s age, the federal contractor will not be liable under the same standard than if the employee was a direct federal government employee. As long as the employer has a legitimate, non-age based reason for an adverse employment decision, the employer is not at risk for liability under the ADEA.

However, federal contractors should be wary of which statutes are incorporated within a contract. While 29 U.S.C. § 633a(a) likely does not supersede private employer statutes, best practices include ensuring that 29 U.S.C. § 633a(a) is not solely and specifically incorporated in the contract. Ensuring this statute is not incorporated would minimize any potential legal liability, as employees may attempt to use this incorporation to hold the private employer liable under the lower standard of discrimination.