Oral Argument Transcript Analysis in Gomez-Perez Retaliation Case

The U.S. Supreme Court heard oral argument today in Gomez-Perez v. Potter, which asks the question of whether federal employees can bring a retaliation claim under the ADEA.  As discussed in a post last Fall, the issue comes down to whether the federal employee provisions of the ADEA must mention retaliation expressly or whether retaliation actions can be implied from the discrimination language and similar language in the non-federal employee parts of the ADEA.

Going into oral argument, my sense was that this case will pit those members of the Court who do not wish to imply private rights of action without express Congressional intent and that part of the Court which is willing to imply protections in order to meet the broader remedial aspects of the law.  The remedial part of the Court was successful in implying a retaliation action under Title IX without express language, but that decision in Jackson was written by Justice O'Connor in a 5-4 decision on a Court without Alito and Roberts.

The transcript today plays out like most people thought it would: Scalia, Alito, and Roberts expressing skepticism (and a silent Thomas apparently agreeing) that Congress could not have mistakenly left out the retaliation language, and Breyer, Souter, Ginsburg, and Stevens to varying degrees suggesting the lack of retaliation language in these provisions is not fatal given that the Court has read in such protections in cases like Jackson and that a discrimination right would mean little if an employee did not have protection from retaliation after filing such a claim.

These two quotes from the respective sides seem to sum up the arguments:

MR. GUERRA [attorney for plaintiff]: . . . .By its plain terms, Section 633a(a) bars retaliation against covered workers who have complained that have they suffered age discrimination. Such retaliation is directed at persons over --

JUSTICE SCALIA: Excuse me. By its plain terms?

MR. GUERRA: Yes, Justice Scalia.

JUSTICE SCALIA: Read it to me, would you?

And:

MR. GARRE [attorney for defendant]: . . . . The Age Discrimination and Employment Act does not expressly prohibit retaliation in the Federal sector context and it should not be read to impliedly prohibits such conduct either.

JUSTICE GINSBURG: Why not, given the Jackson precedent, where there was a similarly general ban on discrimination and we defined discrimination to include retaliation for complaining about discrimination?

Based on the make-up of this Court today, I see a 5-4 decision against the plaintiff. Although Kennedy was silent and as usual may be the decisive vote, he dissented in Jackson and is likely to do the same here.  Kennedy and the majority are likely to find that this case is different from the Jackson Title IX case because of the legislative history of the ADEA, these federal provisions' interaction with provisions in the Civil Service Reform Act of 1978, the difference between federal provisions in Title VII and the ADEA, and because the comparable provisions in Jackson were in a different statute, but are in the same statute here.

PS