Supreme Court Chief Justice Asks Whether ‘OK, Boomer’ Qualifies as Age Discrimination

By Janita Kan
Janita Kan
Janita Kan
Janita Kan is a reporter based in New York covering the Justice Department, courts, and First Amendment.
January 16, 2020 Updated: January 16, 2020

A popular catchphrase used among younger generations has made it on the Supreme Court record after the court’s chief invoked the term to understand what would qualify as age discrimination in the workplace.

Chief Justice John Roberts on Wednesday asked attorneys during oral arguments for a workplace discrimination case whether using the phrase, “OK, boomer,” a dismissive remark used by young people toward people of the Baby Boomer generation, born between 1946 and 1964, during a job interview would constitute actionable discrimination.

The case was brought by Norris Babb, a clinical pharmacist for the Department of Veteran Affairs (VA), who alleged that the department had discriminated against her based on gender and age when they did not select her for promotion. Babb claimed that the department had denied a group of female pharmacists over 50 career advancement opportunities over younger counterparts or older men. She also claims that the department was retaliating against her because she testified in support of two colleagues in their Equal Employment Opportunity (EEO) complaints.

She then sued the VA under the Age Discrimination in Employment Act (ADEA), which states that any personnel actions made by the federal government must be made “free from any discrimination based on age.” The district court judge ruled against her, and that decision was affirmed in the U.S. Court of Appeals for the Eleventh Circuit.

In the case, Babb is arguing that she only needs to prove that age was a “motivating factor” behind VA’s decision to not promote her to prove discrimination. Meanwhile, the department is arguing that for there to be discrimination, an individual would have to show that he or she would have obtained the job “but for” his or her age, which is a higher standard to meet.

At one point during the oral arguments on Wednesday, Roberts asked Babb’s attorney, Roman Martinez, in a hypothetical, whether using “OK, boomer” would count as age discrimination against older employees if age was viewed as a “motivating factor” in a decision.

“Let’s say in the course of the weeks’ long process … the hiring person is younger says, you know, “OK Boomer,” you know, once to the applicant,” Roberts asked (pdf). “Is that actionable?”

Roberts expressed concern, saying that if it does, it could possibly act to regulate speech.

“I’m just wondering if your position is going to become a … really just a regulation of speech in the workplace,” he said.

Martinez told the chief justice that it was not a regulation of speech, but if someone in the workplace uses ethnic slurs or calls “people ‘Boomer’ or [says] unflattering things about them in age when considering them for a position,” then it would constitute age discrimination.

The Trump administration also argued that the higher “but for” standard should apply to federal employees as applied to private-sector and local and state government workers.

The final ruling in the case, Babb v. Wilkie, is expected to be delivered later this year.

Janita Kan
Janita Kan is a reporter based in New York covering the Justice Department, courts, and First Amendment.