5–27-08: The US Supreme Court in Gomez-Perez v. Pot­ter, 128 S. Ct. 1931 (2008) ruled that the Age Dis­crim­i­na­tion in Employ­ment Act of 1967, 29 U.S.C. § 621 et seq., pro­hib­it­ed retal­i­a­tion against fed­er­al employ­ees who had com­plained about age dis­crim­i­na­tion, even though the fed­er­al employ­ee sec­tion of the ADEA did not express­ly pro­hib­it retal­i­a­tion. This was a 6–3 deci­sion. The major­i­ty opin­ion was writ­ten by Jus­tice Ali­to, in which Jus­tices Stevens, Kennedy, Souter, Gins­burg, and Brey­er joined. Jus­tices Roberts, Scalia, and Thomas dis­sent­ed, with dis­sent­ing opin­ions being writ­ten by Jus­tices Roberts and Thomas.

The Gap in the Federal Employee Section of the ADEA

This was the prob­lem under the ADEA: The ADEA’s main sec­tion, in pro­hibit­ing dis­crim­i­na­tion against employ­ees 40 and old­er, only deals with pri­vate indus­try employ­ees and state gov­ern­ment employ­ees. I will call this sec­tion of the ADEA, the “pri­vate and state employ­ee sections”.

To address age dis­crim­i­na­tion against fed­er­al gov­ern­ment employ­ees, the ADEA has a sep­a­rate sec­tion, 29 U.S.C. § 633a, which con­tains a sep­a­rate state­ment of the pro­hi­bi­tions against age dis­crim­i­na­tion. While the pri­vate and state employ­ee sec­tions of the ADEA con­tain express­ly an anti-retal­i­a­tion pro­vi­sion (29 U.S.C. § 623(d)), the fed­er­al employ­ees sec­tion does not. The orig­i­nal ADEA was passed in 1967, but the fed­er­al employ­ees were not cov­ered until the statute was amend­ed in 1974 to cov­er them.

So that gets us to US Postal Ser­vice employ­ee Myr­na Gomez-Perez in Puer­to Rico, who asked for a trans­fer. The trans­fer was refused so she filed a com­plaint of age dis­crim­i­na­tion (she was 45). After she filed the age dis­crim­i­na­tion com­plaint, she claimed she was sub­ject­ed to var­i­ous forms of retal­i­a­tion. So she even­tu­al­ly filed suit in the Unit­ed Stat­ed Dis­trict Court for the Dis­trict of Puer­to Rico, claim­ing retal­i­a­tion. Ms. Gomez-Perez’s law­suit was dis­missed for a dif­fer­ent rea­son (sov­er­eign immu­ni­ty), and she then appealed to the US Court of Appeals for the First Cir­cuit (“First Cir­cuit”). The First Cir­cuit ruled in her favor on the sov­er­eign immu­ni­ty issue, but said her case was prop­er­ly dis­missed for a dif­fer­ent reason–she was a fed­er­al employ­ee and the ADEA’s fed­er­al employ­ee sec­tion (29 U.S.C. § 633a) did not pro­hib­it retal­i­a­tion. Under the First Cir­cuit’s log­ic, noth­ing ADEA pro­hib­it­ed retal­i­a­tion against fed­er­al employees.

The US Supreme Court Fills the Gap

So Ms. Gomez-Perez appealed to the US Supreme Court, which ruled that the fed­er­al employ­ee sec­tion of the ADEA pro­hibits “dis­crim­i­na­tion based on age” (29 U.S.C. § 633a(a)), and that implic­it­ly pro­hibits retal­i­a­tion that aris­es out of pri­or com­plaint of age dis­crim­i­na­tion. The con­tro­ver­sy between the major­i­ty opin­ion and the dis­sent­ing judges was whether it was appro­pri­ate to read into the age dis­crim­i­na­tion pro­hi­bi­tion a cor­re­spond­ing pro­hi­bi­tion for retal­i­a­tion relat­ed to an age dis­crim­i­na­tion com­plaint. The major­i­ty relied on pri­or deci­sions which had done pre­cise­ly the same thing in the con­text of oth­er anti-dis­crim­i­na­tion laws.

For exam­ple, in Jack­son v. Birm­ing­ham Board of Edu­ca­tion, 544 U. S. 167 (2005), Title IX of the Edu­ca­tion Amend­ments of 1972 pro­hib­it­ed “dis­crim­i­na­tion” on “the basis of sex” in con­nec­tion with any edu­ca­tion pro­gram receiv­ing fed­er­al aid. The con­tro­ver­sy in that case was over retal­i­a­tion after a com­plaint of sex dis­crim­i­na­tion, and that statute, like the fed­er­al employ­ee sec­tions of the ADEA, did not express­ly pro­hib­it retal­i­a­tion again some­one who com­plained about sex dis­crim­i­na­tion. The US Supreme Court there con­clud­ed that “retal­i­a­tion” was cov­ered by the sex dis­crim­i­na­tion pro­hi­bi­tion. In essence, the US Supreme Court held that if you retal­i­ate against some­one who has com­plained about sex dis­crim­i­na­tion, then the retal­i­a­tion is an act of sex dis­crim­i­na­tion.

So the US Supreme Court for Ms. Gomez-Perez applied the same log­ic for the ADEA: Since the ADEA pro­hib­it­ed age dis­crim­i­na­tion against fed­er­al employ­ees, then it was an act of age dis­crim­i­na­tion to retal­i­ate against some­one who com­plained of age dis­crim­i­na­tion.

The real issue then, in a set­ting where a statute does not express­ly pro­hib­it age retal­i­a­tion, is whether retal­i­a­tion is a sub­set of age dis­crim­i­na­tion (and there­fore cov­ered by the pro­hi­bi­tion against age dis­crim­i­na­tion); or whether the retal­i­a­tion is con­cep­tu­al­ly and ana­lyt­i­cal­ly dif­fer­ent. The US Supreme Court, for Ms. Gomez-Perez, and in com­pa­ra­ble dis­crim­i­na­tion set­tings, has found con­clud­ed that retal­i­a­tion is a sub­set of the broad­er pro­hi­bi­tion of discrimination.

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Drew M. Capuder

Attorney at Capuder Fantasia PLLC

Publisher of Drew Capuder's Employment Law Blog. Lawyer with more than 30 years of experience, focusing on employment law, commercial litigation, and mediation. Extensive trial and appellate experience in state and federal courts. Call Drew at 304-333-5261.

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