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Supreme Court considers age discrimination case out of Bay Pines VA

The chief justice dropped an ‘Okay, Boomer’ reference during oral arguments in the case of a pharmacist who accused the Bay Pines VA Healthcare System of age discrimination.
The C.W. Bill Young VA Medical Center at Bay Pines VA Healthcare System. (Times | 2014)
The C.W. Bill Young VA Medical Center at Bay Pines VA Healthcare System. (Times | 2014)
Published Jan. 15

WASHINGTON — “Okay, Boomer" made its first appearance in the Supreme Court on Wednesday, invoked by baby boomer Chief Justice John Roberts 12 days before he turns 65.

The meme is a favorite of younger generations and Roberts used it in questions in a case about age discrimination in the workplace, Babb v. Wilkie. The lawsuit was filed by former Bay Pines VA Healthcare System pharmacist Noris Babb against Secretary of Veterans Affairs Robert Wilkie in 2018.

Babb alleges that Bay Pines officials denied her a promotion because of her age and gender, then retaliated against her for testifying in support of other discrimination claims against the VA. The Supreme Court’s ruling in her case could determine what a plaintiff needs to prove to be protected under the federal Age Discrimination in Employment Act.

“The hiring person, who’s younger, says, ‘Okay, Boomer,' once to the applicant,” Roberts said as he conjured a hypothetical exchange to try to figure out when an older federal employee might be able to win a lawsuit under the act.

It was the first time, according to databases of high court arguments, the somewhat pejorative phrase used by younger people to criticize the less flexible, tolerant and tech-savvy ways of their elders has been uttered in the Supreme Court, where the nine justices range in age from 52 (Neil Gorsuch) to 86 (Ruth Bader Ginsburg).

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.

In addition to Roberts’ boomer reference, 81-year-old Justice Stephen Breyer talked about a made-up supervisor who was considering candidates for promotion.

“I certainly don’t want people who are over the age of 82," Breyer said, prompting laughter in the courtroom and on the bench.

Babb was hired at Bay Pines in 2004, according to Newsweek. Her lawsuit alleges that she and other older employees were barred from advancement opportunities that instead went to two other pharmacists under the age of 40. Babb says Bay Pines also retaliated against her when she testified on behalf of two fellow employees in support of their Equal Employment Opportunity claims.

“This case is basically about what it takes for an employee who’s been a victim of employment discrimination by the federal government to prove a valid discrimination claim in court,” plaintiff’s attorney Roman Martinez told Newsweek. “Our case specifically involves the age discrimination statute, but the exact same language applies to claims of racial, religious or gender discrimination.”

The issue before the court is whether an employee can prevail only if age discrimination is the key factor she didn’t get what she sought, or whether it’s enough that age discrimination was part of the process, even if the people who were selected were better qualified.

In 2009, the Supreme Court made it harder for older employees in the private sector to sue by ruling that age has to be the key factor in an employment decision.

The Trump administration argues that the same standard should apply to federal workers, but several justices seemed troubled by the administration’s position because the language of the law’s provisions covering private and federal employees is different.

A decision in Babb v. Wilkie, 18-882, is expected by June.

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