Chief Justice John Roberts questioned whether using the phrase “OK, boomer” would qualify as age discrimination.
On Wednesday, the court heard oral arguments for the case of Norris Babb, a Department of Veterans Affairs employee who says she was fired because of her age and gender. Babb sued the department because she was one of four women over the age of 50 to be denied a high-paying position on an innovative patient care program in Florida in 2010. She claimed that less qualified, younger female pharmacists were appointed to the team, as were older male doctors.
Babb’s attorneys claim that her age was a “motivating factor” in the decision not to promote her to the program. The department argued the law says that discrimination occurred if the individual would have gotten the job “but for” his or her age. The latter argument creates a much higher standard of evidence because the individual must prove that age was the only factor for being refused a position.
While the court was hearing oral arguments from Babb’s attorney, Roberts asked if using the popular phrase “OK, boomer,” a dismissive remark younger people use to jab people from the baby boomer generation, would count as discrimination.
“Is that actionable?” Roberts asked the attorney, prompting laughter in the courtroom.
[Opinion: No, ‘OK, boomer’ shouldn’t be considered ‘workplace discrimination’]
Roman Martinez, the attorney delivering the oral arguments, responded, “Well, if the speech in the workplace … calling someone ‘boomer’ or saying unflattering things about them in age, when considering them for a position, then yes, of course.”
Martinez added, “If the decision-makers are sitting around the table and they say, ‘We’ve got Candidate A, who’s 35, and we’ve got Candidate B, who’s 55 and is a boomer and is probably tired and, you know, doesn’t have a lot of computer skills’ — I think that absolutely would be actionable. “
The chief justice was trying to nail down whether a more lenient standard of discrimination would lead to “regulation of speech in the workplace” because people could put their jobs at risk by discussing age in any fashion, even a one-off “OK, boomer” joke.
According to a report from Bloomberg, Roberts and Justices Brett Kavanaugh and Neil Gorsuch seemed to doubt Babb’s case, but a final ruling will not be delivered until the spring.
