Today, the US Supreme Court heard oral arguments in the disconcerting case of Norris Babb, a longtime Department of Veterans Affairs clinical pharmacist who faced age discrimination after more than a decade of excellent performance reviews. The hearing gave chief justice John Roberts the opportunity to up his cultural credit with strategic use of the phrase “OK, boomer” in a hypothetical question.
The popular 2019 phrase’s premier in the high court in the first month of 2020 and first week of hearings shows just how attuned the justices are to the zeitgeist, though they may seem aloof and their work removed. And it’s no wonder—on a bench whose youngest member is silver-haired Gen-X justice Neil Gorsuch, 52—that the chief, 64, would trot out the insult aimed at his generation to prove he’s cool in a case about hating on the aging.
The chief justice might not qualify as a hepcat in most contexts, but he’s hip enough for a legal luminary managing a crew of dueling intellectuals with opposing views ruling on the foremost issues of the day. And he can be funny on the bench, cracking jokes or making comments that might surprise the progressives who decry his conservative positions.
Still, the matter before the court is totally serious. Babb is asking the justices to reverse an Eleventh Circuit Court of Appeals decision, which found that she was discriminated against because of her age but required her to prove conclusively that this bias was the primary reason, not just a reason, that development opportunities were foreclosed as she got older.
Babb contends that any discrimination suffices and that the appeals court got the requirements of the 1967 Age Discrimination in Employment Act (ADEA) wrong. Her case is about the application of federal discrimination law to public workers specifically. But the difficulty Babb had winning her claim in the lower courts only highlights the pain of employees in the private sector who are always held to the high standard of proving but-for causation.
In other words, this matter shows just how biased any employer has to be before an employee can win an age discrimination claim. The TL;DR: very biased indeed.