Tammie L. Terrell v. Denis R. McDonough, Secretary of Veterans Affairs

Babb v. Wilkie, 589 U.S. 399 (2020) examined the free from any discrimination language and syntax under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 633a(a). That decision recognized a two-part framework: (1) differential treatment based upon a protected characteristic, and if that is shown, (2) full relief based on that characteristic. Both parts involve “but-for” causation. The Eleventh Circuit subsequently held that Babb v. Wilkie is applicable to Title VII. Babb v. Sec’y, 992 F.3d 1193 (11th Cir. 2021). Yet some lower courts, including the Eleventh Circuit, consider Babb under a single motive standard for full relief then separately consider whether there was differential treatment which “contributed” to the personnel action. This has resulted in confusion and allowed the ultimate decision to affect whether there is differential treatment and rejects shifting the burden of proof for full relief. The questions presented are:

1. Whether differential treatment must contribute to the ultimate decision.

2. Whether the burden shifts to the defendant to establish it would have made the same personnel decision if a jury question exists on differential treatment. Subsidiary questions are whether the language and syntax of Title VII should be interpreted as it was under the ADEA, and whether such language bans retaliation in federal employment.