“OK, Boomer,” a meme popularized by younger generations on social media, made its first (and likely only) appearance in the United States Supreme Court last month. If you are unfamiliar with the meme, it is a tongue-in-cheek retort used by young people – often on social media apps like TikTok and Twitter – to criticize older generations for being “out of touch.” Chief Justice John Roberts, 65, invoked the viral meme during oral arguments in Babb v. Wilkie, an age discrimination case. In Babb, a Department of Veterans Affairs pharmacist named Dr. Noris Babb alleges, among other things, that she was denied pay raises and promotions because of her age in violation of the Age Discrimination in Employment Act (ADEA). Babb brought suit against Robert Wilkie, the Secretary of Veterans Affairs.
By way of background, the ADEA prohibits age discrimination in the workplace against persons 40 years of age and older. The law has different provisions, however, for private- and federal-sector employees. The ADEA’s private-sector provision states that employers cannot discriminate against “any individual…because of such individual’s age.” The Court has already interpreted the private-sector provision to require plaintiffs to prove “but for causation.” The ADEA’s federal-sector provision, meanwhile, requires employment decisions to be “made free from any discrimination based on age.” The federal-sector provision applies to Babb.
The question in Babb is whether the federal-sector provision of the ADEA requires plaintiffs like Babb to show that they would have received better treatment “but for” the government’s consideration of their age. In other words, can Babb show that age was simply one factor in the alleged discrimination, even if there were other factors, or must she show that age was the “but-for” cause of the alleged discrimination? Babb argues that “free from any discrimination” means she does not have to prove bias was the reason she suffered adverse employment actions, while the federal government argues to the contrary.
During oral arguments, Chief Justice Roberts posed a hypothetical question to Babb’s attorney, Roman Martinez, about whether Babb’s position may chill workplace speech. The Chief Justice asked Martinez:
Let’s say in the course of the, you know, weeks’ long process, you know, one comment about age, you know, the hiring person is younger, says, you know, “OK, boomer,” you know, once to the applicant. So is that actionable?
Needless to say, the courtroom erupted in laughter. Martinez responded cautiously and stated that the comment would “have to play a role in the decision-making process” that leads to the adverse employment decision. Martinez went on to say that if the comment plays no role in the decision-making process and is merely a “stray comment,” the comment would not amount to discrimination. The Chief Justice pressed on, asking how one would be able to tell when a comment plays any role in an adverse employment decision.
The Supreme Court’s decision in Babb v. Wilkie will have lasting effects on federal-sector employees for generations to come. Whether or not you are a boomer, this case is worth your attention. A decision is expected sometime this summer. We will, of course, keep you apprised of any updates as they arise.