The U.S. Court of Appeals for the District of Columbia Circuit issued a decision on Friday that offers federal employees more protection from discrimination than employees in the private sector currently enjoy. The decision is Ford v. Mabus, No. 09-5041 (DC Cir. 12-10-2010). Richard Ford worked for the U.S. Navy as an engineer from 1964 until his retirement in 1997. He returned to Navy employment in 2005. Managers decided to pick a younger and less experienced applicant to be branch head, and Ford sued for age discrimination. Applying Gross v. FBL Financial Services Inc., 129 S. Ct. 2343 (2009), the court held that Ford could not show that age was the "but-for" cause of the decision against him. (Congress should legislatively overrule Gross so that older workers have the same protections as workers complaining of race, gender and religious discrimination.) The Court then compared 29 U.S.C. § 623(a) (the private sector law) and 29 U.S.C. § 623a(a) (the law for federal employees). These provisions parallel the differences between 42 U.S.C. § 2000e-2(a)(1) and 42 U.S.C. §2000e-16(a), the Title VII laws against discrimination for private and federal sector employees.
But because of what this court has called section 633a’s “sweeping” language—“all [federal government] personnel actions . . . shall be made free from any discrimination based on age”—we hold that plaintiffs may also establish liability, though not necessarily entitlement to such remedies as reinstatement and backpay, by showing that consideration of age was a factor in the challenged personnel action. We therefore reverse the entry of judgment for the government and remand for further proceedings consistent with this opinion.
This language now opens the door for federal employees to win more age discrimination cases. The same logic can also help other federal employees seek a broader application of Title VII so that our federal government is "free from any discrimination." Congratulations to Richard Ford and his attorney Michael G. Kane of the Washington firm of Cashdan and Kane. My friend Daniel Kohrman and Melvin Radowitz, both of AARP, submitted an amicus brief to help win this important victory.