1/13 The Supreme Court’s opinion in Babb v. Wilkie (addressing the causation standard under the federal sector provisions of the ADEA) is out here: https://www.supremecourt.gov/opinions/19pdf/18-882_3ebh.pdf My quick takeaway: it is a Pyrrhic victory for employment discrimination plaintiffs.

2/13 As those following the intricacies of employment discrimination doctrine are aware, since 2009 the Supreme Court has steadily limited the availability of the “mixed motives” burden shifting framework, as well as the "motivating factor" standard of causation.

3/13 In Babb v. Wilkie, the Court holds that the ADEA federal sector provisions do not require a showing of “but for” causation in the ultimate employment decision for liability to attach.

4/13 Rather, the Court finds that the ADEA’s federal sector provisions, “demand that personnel actions be untainted by any consideration of age."

5/13 This outcome is based on a textualist analysis of the ADEA’s federal sector provisions, which provide that “[a]ll 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.”

6/13 Though consistent with the text, on first glance the result in Babb might seem surprising, given that the Court has consistently moved toward but-for causation as the causation standard for employment discrimination law.

7/13 This surprise, however, evaporates, upon reading the full opinion.

8/13 Although the Court holds that age need not be a but-for cause for liability, it *also* holds that to obtain “reinstatement, back pay, compensatory damages, or other [individualized relief]…plaintiffs must show that age was a but-for cause of the employment outcome.”

9/13 Thus, in order to secure any individualized relief, plaintiffs will still have to prove but-for causation.

10/13 For most plaintiffs, this renders the decision in Babb tantamount to a holding that they must prove but-for causation. Few plaintiffs can afford to undertake long, expensive, emotionally taxing litigation only to try to obtain “injunctive or other forward-looking relief.”

11/13 Moreover, ADEA plaintiffs might lack standing to seek such forward-seeking relief, unless they continue to be employed by the federal government or intend to seek re-employment. But for most employees, suing their current (or future) employer is rarely worth the stakes.

12/13 As I have written elsewhere, but-for causation is not a disaster for discrimination plaintiffs: properly understood it only requires that, as the Supreme Court has described it, protected class status was “the straw that broke the camel’s back.” Burrage v. US (2014).

13/13 Thus, Babb, is not a disaster for plaintiffs. It effectively requires but-for causation, which is not an insurmountable standard. But it should not be viewed as much of a victory either.