U.S. Supreme Court Cites Torts and Torts 3d
In Babb v. Wilkie, No. 18-882 (April 6, 2020), the U.S. Supreme Court cited the Restatement of the Law, Torts and the Restatement of the Law Third, Torts, Liability for Physical and Emotional Harm, in holding that the federal-sector provision of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 633a(a) “demand[ed] that personnel actions be untainted by any consideration of age,” imposing liability beyond when age was a “but-for cause” of the personnel action.
The plaintiff, a clinical pharmacist at a U.S. Department of Veterans Affairs Medical Center who was over 50-years old, filed an action against the Secretary of Veterans Affairs, alleging, inter alia, that she was subjected to personnel actions involving age discrimination. The U.S. District Court for the Middle District of Florida granted the defendant’s motion for summary judgment, finding that the plaintiff had established a prima facie case and the defendant had provided legitimate reasons for the challenged adverse personnel actions that no jury could reasonably find were pretextual. The plaintiff appealed, arguing that, under § 633a(a), a personnel action was unlawful if age played any part in the decision, so that even if the defendant’s reasons were not pretextual, age discrimination might still have played some part in the decisions. The U.S. Court of Appeals for the Eleventh Circuit affirmed, finding that the plaintiff’s argument was “foreclosed” by Circuit precedent. The U.S. Supreme Court reversed and remanded, holding that the plain meaning of § 633a(a)—which stated that, “All personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . shall be made free from any discrimination based on age”—imposed liability if age played any part in an employment decision.
Associate Justice Samuel A. Alito, writing for the majority, explained that this did “not mean that a plaintiff [could] obtain all forms of relief that [were] generally available for a violation of § 633a(a) . . . without showing that a personnel action would have been different if age had not been taken into account.” Justice Alito continued that “plaintiffs [could] seek injunctive or other forward-looking relief” if they “show that age was a but-for cause of differential treatment in an employment decision but not a but-for cause of the decision itself,” and reasoned that “an actor’s liability is limited to those harms that result from the risks that made the actor’s conduct tortious,” quoting Restatement of the Law Third, Torts, Liability for Physical and Emotional Harm § 29.
The Court noted that, in University of Tex. Southwestern Medical Center v. Nassar, 570 U.S. 338 (2013), it had interpreted Title VII’s anti-retaliation provision “as requiring retaliation to be a but-for cause of the end result of the employment decision,” based in part on “the rule that recovery for an intentional tort generally require[d] proof ‘that the harm would not have occurred’ in the absence of—that is, but for—the defendant’s conduct,” quoting Restatement of the Law, Torts § 431, Comment a. The Court determined, however, that the statutory language at issue in Nassar was “markedly different” from the language at issue in this case, and rejected the defendant’s argument that the Court’s interpretation of § 633a(a) was weakened by prior cases such as Nassar that interpreted different statutes.
Dissenting, Associate Justice Clarence Thomas argued, among other things, that the majority should have applied the default “but-for causation” rule, “because it [was] not clearly displaced by the text of the ADEA’s federal-sector provision.” Justice Thomas emphasized that causation in fact was “‘a standard requirement of any tort claim,”’ quoting Nassar, which cited Restatement of the Law, Torts §§ 9, 279 and Comment c, 280, 281(c), and 431, Comment a. He disagreed that the plain meaning of § 633a(a) supported the majority’s interpretation, and would have applied the “but-for causation” rule, because “an ambiguous provision does not contain the clear language necessary to displace the default rule.”
Read the full opinion here.
