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Justices rule for federal employee over age discrimination

UPDATED: Mon., April 6, 2020

In this March 16, 2020 photo, people walk outside the Supreme Court in Washington. (Patrick Semansky / AP)
In this March 16, 2020 photo, people walk outside the Supreme Court in Washington. (Patrick Semansky / AP)
By Mark Sherman Associated Press

WASHINGTON – Well, OK, boomer.

The Supreme Court made it easier Monday for federal employees 40 and older to sue for age discrimination.

The justices ruled 8-1 that federal workers have a lower hurdle to overcome than their counterparts in the private sector. The decision came in the case in which Chief Justice John Roberts, a 65-year-old baby boomer, invoked the “OK, boomer” meme during arguments in January for the first time in high-court records.

The court issued the opinion without taking the bench for the third straight week because of the coronavirus. Arguments scheduled for the spring have been postponed indefinitely.

An employee can win a lawsuit by showing that age discrimination was part of the process, even if the people who were selected were better qualified, the court held in an opinion by another boomer, 70-year-old Justice Samuel Alito. The ruling came in the case of a Veterans Affairs Department employee who was in her early 50s when she sued for age discrimination after being denied promotions and training opportunities.

The outcome stands in contrast to a 2009 decision in which the court said age has to be the key factor in a private sector employment decision. The language of the law’s provisions covering private and federal employees is different.

Alito wrote that, “if Congress had wanted to impose the same standard on all employers, it could have easily done so.”

But the opinion also made clear that an employee could not expect to win back pay or the promotion she sought if discrimination was not the key factor in the employment decision at issue. There could be other options, including a court order forbidding the agency from using the same flawed process in the future, Alito wrote.

Justice Clarence Thomas, 71, also a member of the post-World War II baby boom generation, dissented.

Supreme Court justices sometimes will imagine themselves in situations like the ones that land people before the high court, but that can be hard to do when the subject is employment discrimination because the justices have lifetime tenure. The youngest justice, Neil Gorsuch, is 52. Justice Ruth Bader Ginsburg, 87, is the eldest.

The case is Babb v. Wilkie, 18-882.

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