A legal fellow with The Heritage Foundation contends Supreme Court Justice Clarence Thomas was the only justice who got it right in a ruling that the high court announced this week.
The U.S. Supreme Court just made it easier for federal employees 40 and older to sue for age discrimination. On Monday the justices ruled 8-1 in Babb v. Wilkie that federal workers can win a lawsuit by showing that age discrimination was part of the process, even if the people who were selected were more qualified.
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. Associate Justice Clarence Thomas was only dissenting vote.
"I actually think the majority got it wrong in this case and that the lone dissenter, Justice Thomas, got it correct," says Hans von Spakovsky, senior legal fellow for The Heritage Foundation. "Justice Thomas said [that] in order to win an age discrimination lawsuit, you should have to show that – but for your age – the employment action would not have been taken against you."
The other justices disagreed, saying the employer may have perfectly legitimate reasons for the employment decision that was made; but if age was even a minor factor in the way the decision was handled, then an employee has a case.
"That really doesn't make sense," Spakovsky argues, "because, as Justice Thomas said, that means that a federal employee – even if he gets a promotion, or even if he gets a job he's been trying to get – could still sue and potentially get some kind of remedy because of the way the decision was made."
According to The Associated Press, 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.