The Supreme Court recently heard arguments in Norris Babb v. Sec’y of Veteran Affairs, an Age Discrimination in Employment Act (“ADEA”) case raising the question of whether a federal employee must show that age was the “but for” cause of an adverse employment action or rather could succeed by showing only that age was a factor. Chief Justice Roberts, himself a baby boomer, presented Babb’s counsel with the following hypothetical:
Let’s say in the course of the, you know, weeks’ long process, you know, one comment about age, you know, the hiring person is younger, says, you know, “OK, boomer,” you know, once to the applicant…So is that actionable?
His reference to “OK, boomer” apparently sparked laughter from the gallery. While the use of the phrase brought some levity to the proceedings, it also reveals something companies and their counsel should note, i.e., even though Chief Justice Roberts’ question revealed skepticism that such a comment alone would be enough to succeed, the question presumes that “OK, boomer” is at least some evidence of age discrimination. For more of a summary of the case and the arguments, click here.