Supreme Court Justices Skeptical of Current Standard for Federal Worker Age Discrimination Cases

Justices on the Supreme Court on Wednesday appeared ready to reject portions of the Trump administration’s arguments that federal courts should maintain the current strict standard for proving age discrimination in the federal workplace, although some expressed reservations about whether a lesser standard could amount to “regulation of speech.” In the case Babb v. Wilkie, a Veterans Affairs Department pharmacist accused the VA of denying her advancement opportunities because of her age and gender, and in retaliation for previous Equal Employment Opportunity Commission complaints. Lower courts consistently ruled against her, because they applied a so-called “but for cause” standard that requires plaintiffs to prove discrimination was the deciding factor in a personnel action. Noris Babb’s attorney, Roman Martinez, argued that the Age Discrimination in Employment Act sets differing standards for proving age discrimination. While in the private sector, the discrimination must be the proximate cause of the adverse action, language governing federal agencies states that personnel decisions must be made “free from any discrimination” based on age. But Solicitor General Noel Francisco,...

On July 9, at 1pm Central time, the U.S. Court of Appeals for the Fifth Circuit

On July 9, at 1pm Central time, the U.S. Court of Appeals for the Fifth Circuit will hear oral argument in Texas v. United States, the latest effort to have the Affordable Care Act struck down in federal court. The panel hearing the case (announced this morning) consists of Senior Judge Carolyn Dineen King, Judge Jennifer Walker Elrod, and Judge Kurt D. Englehardt. Audio of the oral argument should be posted later that afternoon. Many commentators have evaluated this case through a partisan prism, assuming that the best way to predict the outcome is simply by looking at the partisan affiliation of the Presidents who nominated the judges. I think this is mistaken for multiple reasons. First, unlike the prior ACA cases to reach the Supreme Court, the underlying arguments advanced by the plaintiffs are not well grounded in conservative jurisprudential principles. Whereas the arguments in NFIB and King were rooted in aggressive enumerated powers and textualist jurisprudence, the arguments here actually cut against traditional conservative approaches to justiciability (standing in particular) and severability. As a consequence, there is less fertile ground in which the case can take ...