“The hiring person, who's younger, says, ‘OK, Boomer,' once to the applicant,” Roberts said as he conjured a hypothetical exchange to try to figure out when an older federal employee might be able to win a lawsuit under the Age Discrimination in Employment Act.
It was the first time, according to databases of high court arguments, the somewhat pejorative phrase used by younger people to criticize the less flexible, tolerant and tech savvy ways of their elders has been uttered in the Supreme Court, where the nine justices range in age from 52 (Neil Gorsuch) to 86 (Ruth Bader Ginsburg).
Supreme Court justices sometimes will imagine themselves in situations like the ones that land people before the high court, but that can be hard to do when the subject is employment discrimination because the justices have lifetime tenure.
In addition to Roberts' boomer reference, 81-year-old Justice Stephen Breyer talked about a made-up supervisor who was considering candidates for promotion. “I certainly don't want people who are over the age of 82," Breyer said, prompting laughter in the courtroom and on the bench.
The justices were considering the case of a Veterans Affairs Department employee who was in her early 50s when she sued for age discrimination after being denied promotions and training opportunities.
The issue before the court is whether an employee can prevail only if age discrimination is the key factor she didn't get what she sought, or whether it's enough that age discrimination was part of the process, even if the people who were selected were better qualified.
In 2009, the Supreme Court made it harder for older employees in the private sector to sue by ruling that age has to be the key factor in an employment decision. The Trump administration argues that the same standard should apply to federal workers, but several justices seemed troubled by the administration's position because the language of the law's provisions covering private and federal employees is different.
A decision in Babb v. Wilkie, 18-882, is expected by June.