Employment Litigation · Primary-source case analysis

Babb: The Concurrence’s Example of Age-Biased Testing Costs

By Aneeta Mishra and Timothy Chan

Published August 18, 2026 · Updated October 18, 2026

Decision: Babb v. Wilkie, 589 U.S. 399 (2020).

Can an age-biased hiring step cause a loss even when the applicant gets the job? Justice Sotomayor’s concurrence in Babb v. Wilkie, joined by Justice Ginsburg, offered a concrete example: An older applicant hired after taking a test imposed only on applicants over forty. The example concerns the ADEA’s federal-sector provision, not a general rule for every employer. It was a hypothetical, not a finding about what happened to Noris Babb.

The applicant in the concurrence was hired

The concurrence described a fifty-year-old who passed a computer-aptitude test administered only to applicants over forty. Hiring that applicant would not necessarily answer whether the hiring decision was made free from age-based differential treatment. The question was about the unequal testing requirement, not whether an older person could perform the job. Sotomayor, J., concurring, page 1.

Testing expenses were a different claimed injury

Justice Sotomayor then identified a possible loss: Costs incurred to prepare for the discriminatorily administered test. Reimbursement of those expenses could restore the applicant to the position occupied without that treatment, even though age had not prevented hiring. She said the example may suggest a damages remedy; she did not announce that every test expense must be awarded. Sotomayor, J., concurring, page 1. This is a narrower question than claiming backpay for a job the applicant actually received.

The majority tied each remedy to the injury

The majority required age to cause the discriminatory differential treatment, while distinguishing that question from whether age changed the ultimate personnel outcome. It also held that hiring, reinstatement, backpay, and other relief tied to the outcome require the necessary causal connection to that outcome. Majority opinion, pages 5–7, 13–14. The concurrence’s expense example focused on harm from the discriminatory step itself. It did not remove causation or make a final award on a new category of losses.

The example did not decide an actual expense award

The Supreme Court reversed and remanded Babb’s case without determining her relief. The majority left appropriate remedies to the district court if she established a violation. Majority opinion, page 14. For a current federal personnel matter, separate the unequal requirement, the expense actually incurred because of it, and any claim that the final selection would have differed. A private-sector or California FEHA claim requires its own governing analysis; this federal-sector opinion does not automatically supply its test.

Key takeaways

• Identify the unequal requirement rather than assuming every age reference caused treatment.
• Distinguish expenses of that requirement from wages lost because of a selection outcome.
• Attribute the testing-cost example to the concurrence, not an actual damages holding.
• Keep the test instructions, eligibility rule, receipts, and final selection notice together.