It is unlawful under the Age Discrimination in Employment Act (ADEA) for a federal agency to treat an applicant or federal employee less favorably because of their age if they are age 40 or older. This includes where an agency treats a federal employee aged 40 or older differently than a younger employee regarding personnel decisions such as hiring, firing/removal, pay, job assignments, promotions and selections, layoffs, training, benefits, and any other term or condition of employment.
In a fairly recent decision, Babb v. Wilkie, Secretary of Veteran Affairs, No. 18-882 (Apr. 6, 2020), the U.S. Supreme Court clarified that the provision of the ADEA applicable to federal government employees allows federal employees to sue for age discrimination when age bias taints the decision-making process, not merely when age bias plays a determinative, “but for” role in the employment decision. This is more favorable to employees that the provision applicable to the private sector and state and local governments where to have a claim the employee must demonstrate that the adverse employment action in question would not have occurred “but for” age bias in the decision-making process. Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009). The Court said, however, that remedies including reinstatement, back-pay, and compensatory damages are available only to federal employees who establish “but for” causation.
The ADEA does not apply to federal employees under age 40. An agency is allowed favor an older federal employee over a younger employee, even if both are 40 or older and it adversely affects a younger worker who is 40 or older. There can be discrimination when the aggrieved employee and the responsible management official who discriminated are both over 40.
The ADEA also prohibits retaliation against a federal employee who opposes employment practices that are discriminatory based on age or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADEA.
The ADEA also prohibits agency officials from harassing or creating a hostile work environment for a federal employee because of the employee’s age.
An example of illegal harassment based on age is repeated offensive or derogatory remarks about a federal employee’s age, e.g., comments that the employee must be ready for retirement. The law does not prohibit simple teasing, offhand comments, or isolated incidents that aren’t very serious.
The harasser can be the victim’s direct supervisor in the agency, a supervisor in another area, a co-worker, or someone not employed at the agency, like a client or customer. If the harassment is committed by someone who does not have direct authority over the employee, then the agency may only be liable if the employee complained about the harassment and the agency failed to take prompt remedial action to make sure the harassment did not reoccur.
The EEOC has held, in Brown v. Dep’t of Transp, EEOC Doc No, 03A50040 (Sept. 15, 2005), that federal employees may bring disparate impact claims under the ADEA. To establish such a claim, a federal employee must 1) identify the specific agency policy or practice challenged; 2) show statistical disparities in its application; and 3) show a link between the policy or practice and the disparity. Additionally, the Commission’s regulations at 29 C.F.R. § 1625.7(e)(1) provide that to defeat a claim of disparate impact based on age, “an employer must show that the employment practice was both reasonably designed to further or achieve a legitimate business purpose and administered in a way that reasonably achieves that purpose in light of the particular facts and circumstances that were known, or should have been known, to the employer.”
Despite this, in DiCocco v. Garland, No. 20-1342 (November 17, 2021), the U.S. Court of Appeals for the Fourth Circuit held that the ADEA does not provide a disparate-impact cause of action for federal employees. This decision created a circuit court split as both the 10th Circuit (in Lujan v. Walters, 813 F.2d 1051 (1987)) and the 9th Circuit (in Palmer v. United States, 794 F.2d 534 (1986)), have held that the ADEA provision applicable to federal employees prohibits any and all age discrimination, including where a seemingly neutral agency policy disparately impacts older employees. In light of this split, it seems likely that this issue may end up at the Supreme Court to resolve within the next few years.
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