by Michael C. Dorf
During Wednesday's oral argument in Babb v. Wilkie, Chief Justice Roberts elicited laughter from the courtroom audience when he asked Roman Martinez, the lawyer for petitioner Noris Babb, whether one recitation of the phrase "okay Boomer" directed at an older person in the course of a weeks-long employment decision process would be actionable under the Age Discrimination in Employment Act (ADEA). There ensued a back-and-forth in which the Chief Justice sounded incredulous: "So calling somebody a 'boomer' and considering them for a position would be actionable?," he asked. Martinez did not directly answer the question, instead settling eventually on a reformulation of his core position in the case: "if the fact finder were to conclude that that statement . . . was one of the factors going into" the employment decision, then yes, he said, liability would follow.
At issue in Babb is whether a plaintiff alleging age discrimination under the federal sector provision of the ADEA must show that consideration of the plaintiff's age was a but-for cause of an adverse employment decision (as the Solicitor General argues), or whether it suffices for the plaintiff to show that age was a "motivating factor," as Babb's attorneys argue, drawing on a test taken from the Title VII context. The underlying statutory and case-law context is complex. The outcome in the case may turn on how the specific statutory language on which Babb relies--"free from any discrimination based on age"--interacts with the constitutional requirement of equal protection, other anti-discrimination provisions Congress has enacted, and the case law construing them. Readers looking for a good summary may wish to consult this explainer by attorney Dan Kohrman. Although Kohrman works for AARP, on whose behalf he submitted an amicus brief in support of petitioner Babb, the explainer is fairly neutral.
I won't directly address the merits of Babb. Instead, I want to linger over the Chief Justice's question and the unspoken premise that he and those in the audience who laughed at his "okay Boomer" line share.
In one of his follow-up questions during the "okay Boomer" colloquy, the Chief Justice expressed the worry that the position espoused by Martinez on behalf of Babb would become "really just a regulation of speech in the workplace." The Chief Justice appeared to reason that in the absence of a requirement of but-for causation, even "stray comments" expressing bias based on age would be actionable. Martinez tried to reassure Roberts by explaining that the statement would have to be in the context of an employment decision, adding in response to some friendly softballs tossed by Justice Breyer, that it would have to be a "motivating factor" rather than a stray comment.
I doubt that Martinez succeeded in persuading Roberts. Although the Chief Justice peppered Martinez with skeptical questions, he did not ask a single question of Solicitor General Noel Francisco. With the usual caveat that one can never be completely confident about how a justice will vote based on her or his questions at oral argument, I doubt that Martinez has the Chief Justice's vote.
But ultimate merits aside, note the assumption of the Chief Justice's question: that it would be harmful and certainly not required by statute for the Court to conclude that an occasional "okay Boomer" constitutes age discrimination. Is that assumption correct?
Maybe not. At issue in Babb is whether certain adverse employment decisions violated Babb's rights under the ADEA, but note that the ADEA has been construed by the Equal Employment Opportunity Commission and the federal appeals courts to forbid not just particular adverse decisions involving hiring, firing, and promotion, but also hostile work environment based on age. Just as Title VII covers sexual harassment and racial harassment, the ADEA covers age harassment. And in just about all cases of alleged age harassment, the actionable conduct will consist of speech.
Perhaps the most straightforward and generous way to understand the Chief Justice's "okay Boomer" line of questioning works with a limitation in harassment law itself. The EEOC summarizes the law governing what constitutes harassment under Title VII, the ADEA, and the Americans with Disabilities Act as follows: "Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality. To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people." Accordingly, we can understand Roberts to have been saying that a single use of the phrase "okay Boomer" would be an isolated incident that doesn't create a hostile work environment.
I want to be charitable, and so I'll assume that the concern the Chief Justice was expressing was mostly about stray comments. Still, I can't help but think that at least his audience and perhaps the Chief himself also thought that the very idea of "okay Boomer" as any part of the proof of age-based animus was--as indicated by the audience laughter--humorous.
As a matter of social meaning, one certainly oughtn't say that Boomer "is the n-word of ageism." The greater harmful force of the n-word is illustrated by the very fact that many people (including me in this blog post) are comfortable writing out "Boomer" but not the n-word. (Comedian John Mulaney made more or less the same point in contrasting the word "midget" with the n-word.) Accordingly, while even a single use of the n-word might create a hostile work environment based on race (under the EEOC's parenthetical "unless extremely serious" exception), a single use of Boomer would not rise to the level of "severe or pervasive," as required by the case law defining actionable harassment.
And yet I am left with the uneasy feeling that Chief Justice Roberts was expressing incredulity about the idea that federal anti-discrimination law could have as one of its consequences purging workplaces of hostile speech based on age-based stereotypes. Not to put too fine a point on it, I suspect that the Chief and most of the audience in the Supreme Court for the Babb oral argument think that calling someone a Boomer is funny. I also suspect that they would find calling someone any derogatory term for old person funny.
There exist truly offensive terms based on race, sex, sexual orientation, and nearly every ethnicity. There's just nothing comparable for age. Geezer? Codger? No one wants to be called one of these terms, but they simply lack the punch of slurs for other characteristics. The only really offensive age-based American English terms are for old women, and they derive their offensiveness from the sexism of treating aging so differently based on sex.
The absence of truly offensive terms for an old person (absent sexism) suggests that as a society, we don't take age discrimination all that seriously. This general phenomenon is compounded in the law by the fact that the justices all count as old. Roberts, Thomas, Alito, Sotomayor, and Kagan are Boomers, and while two justices (Gorsuch and Kavanaugh) are too young to be Boomer's (they're Gen-Xers) and two justices (Ginsburg and Breyer) are too old (they're Silent Generation members), all of the justices are eligible for protection against age discrimination (which kicks in at age 40). One might think that being old would make the justices sensitive to age discrimination, but it appears to have the opposite effect, given their own extremely privileged lives (regardless of what their lives were like when they were younger). Moreover, no federal judges or justices feel any personal need for the protections afforded by the ADEA, because life tenure under the Constitution's Article III gives them even greater protection.
If I'm right about all of the foregoing, is that a problem? Should the limits of a federal statute like the ADEA be drawn from the social meanings attached to age discrimination? To some degree, they inevitably will be, but I would suggest that anti-discrimination law aims not just to reflect existing social understandings but to reform them. The ADEA ought to incline the judges and justices who construe it to take age discrimination more seriously than they might in the absence of a federal statute on point.
Finally, although I have criticized Chief Justice Roberts here, I want to be clear that the attitude I'm attributing to him is widespread, as reflected by the laughter in the courtroom. Indeed, I am critiquing my own attitude as well, for I too am a tenured Boomer.