Is 'Ok, Boomer' enough to show age discrimination?

If a federal employer says "Ok, Boomer" to a job applicant, is that enough to show age discrimination? U.S. Supreme Court Chief Justice John Roberts asked a similar question during the oral argument of Babb v. Wilkie earlier this year, a case that now makes it easier to show federal employers have violated the Age Discrimination in Employment Act (ADEA).

Background

Noris Babb worked as a clinical pharmacist for the Veterans Affairs Medical Center (VA), a federal employer. She is a woman over 40 years of age. She applied for a promotion, which the VA denied after she participated in the equal employment opportunity (EEO) complaints of two other women over 40 whose applications were also rejected.

Babb filed suit against the VA under Title VII of the Civil Rights Act of 1964 and the ADEA. She alleged the VA discriminated against her based on gender and age and retaliated against her because she participated in EEO-related activity.

Lower courts' decisions

The district court granted summary judgment (dismissal without a trial) in favor of the VA. It applied the McDonnell Douglas burden-shifting framework, which requires employees to prove age was the "but for" cause of the adverse action (here, not getting the promotion). The district court held that although Babb had established her prima facie (minimally sufficient) discrimination case, the VA offered a legitimate nondiscriminatory and nonretaliatory reason for its actions, and she couldn't prove its stated reason was a pretext (an excuse) for discrimination or retaliation.