Solicitor General Noel Francisco poses for a photo at the Justice Department in May.

Solicitor General Noel Francisco poses for a photo at the Justice Department in May. Andrew Harnik/AP

Trump Administration Acknowledges Mistake in Supreme Court Age Discrimination Case

Solicitor General Noel Francisco backs down on statement that there are multiple legal avenues besides the Age Discrimination in Employment Act under which federal workers could pursue an age discrimination claim.

The Supreme Court earlier this month took the unusual step of asking for legal briefs after hearing oral arguments in a case challenging the legal burden federal employees must meet to prove they were discriminated against on the basis of age.

In Babb v. Wilkie, Veterans Affairs pharmacist Noris Babb sued the department under the Age Discrimination in Employment Act. Until now, courts have consistently ruled against her, applying a “but for cause” standard that requires plaintiffs to prove discrimination was the deciding factor in a personnel action. But the plaintiff argued that, because the law states that federal agencies’ actions must be “free from any discrimination” based on age, a looser standard should apply.

During oral arguments, attorneys for Babb and the Trump administration appeared to disagree about whether there were other legal avenues besides the Age Discrimination in Employment Act under which to pursue an age discrimination claim.

“[There is] another provision of the Civil Service Reform Act that I was going to refer the court to . . . which says that: ‘All employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to age,’” said Solicitor General Noel Francisco. “I am quite confident that there is an avenue in which you could challenge a younger-is-better policy, were a federal government agency to adopt such a policy.”

But in Babb’s legal team’s rebuttal to the government’s argument, attorney Roman Martinez accused Francisco of misrepresenting how federal civil service law works.

“Section 2301 [of the Civil Service Reform Act] is unenforceable,” he said. “I think the solicitor general said . . . that it would give rise to a remedy of an injunction in court. That is not accurate. If you look at the [Merit Systems Protection Board's] website, it specifically says that this provision is not enforceable and that’s the rule that courts across the country have applied.”

In a legal brief filed with the court last week, Francisco appeared to acknowledge that his analysis of the law was incorrect, but argued that the “but for cause” standard should remain in place because the government already has regulations prohibiting age discrimination.

“Although the government is not aware of any judicially enforceable relief, ‘there are a host of civil service regulations that would prohibit the types of policies that the petitioner is concerned about,’” Francisco wrote, quoting himself during oral arguments. “These policies are often broader than the federal sector [Age Discrimination in Employment Act], insofar as they do not require an adverse personnel action, are aimed at stopping problematic actions or practices before they give rise to a legal violation, or reflect broader merit-system principles and standards.”

Francisco said that those regulations often produce enforcement actions, although not the injunctive relief Babb has requested.

“And the policies may be enforced in a number of ways, including internal enforcement by the relevant agency and, in the unlikely event that the agency refuses to honor federal merit-system principles, an order from the Office of Personnel Management requiring the agency to take corrective action.”

In a brief on behalf of the plaintiff, Martinez noted that although the Office of Personnel Management is tasked with enforcing federal civil service law, OPM notes on its website that federal workers who have been discriminated against should seek assistance from other bodies.

“OPM is not an adjudicative forum where individual employees obtain prospective relief for individual adverse employment claims,” he wrote. “We are unaware of any existing mechanism for an individual employee to bring his claim before OPM, or of real-world instances where OPM has ever used its authority in individual cases on behalf of aggrieved employees. Indeed, OPM’s own website directs victims of ‘unlawful discrimination on the basis of age’ in the hiring process to ‘either contact an [Equal Employment Opportunity] counselor . . . or give notice of intent to sue to the Equal Employment Opportunity Commission.’”

The Supreme Court is expected to issue a ruling in this case later this year.