Court Rejects "But For" Standard in Federal Sector age Discrimination Claim

An employee who had worked for her government employer for more than 30 years did not receive a promotion that she had sought. The position was instead given to a younger employee. The employee sued her employer, alleging age discrimination, sex discrimination and retaliation. The employee claimed that she was not only deprived of the position due to her age and gender, but that she was also retaliated against because she was not given the promotion due to her prior complaints of discrimination. The U.S. Court of Appeals for the First Circuit held that the employee had failed to meet the burden of establishing her claims. Specifically, although the employee based her claim of age discrimination on a memorandum in which the employer referenced a need for “new blood,” that was not dispositive of age discrimination. Further, the employee failed to overcome the fact that the younger employee received the promotion because he had performed more favorably during the interview and had more experience in the industry at issue. Notably, the court applied the “mixed-motive” analysis, and not the more stringent “but for” standard recently applied by the U.S. Supreme Court in Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009). The court held that the employee did not have to show that age was the “but for” cause of her failure to receive the promotion because that standard did not apply to federal sector workers. In age discrimination cases, different standards of liability may therefore apply to different employers, depending upon whether the employer is in the private or public sector.

Velazquez-Ortiz v. Vilsack, No. 10-1787 (1st Cir. Sept. 22, 2011)