Tuesday, May 27, 2008
I bet Paul is glad to be wrong about this one. According to the Liibulletin from Cornell, today the Supreme Court held 6-3 for the plaintiff in Gomez-Perez v. Potter (written by Alito no less!). I haven't read the decision yet, but the Court's syllabus states in part:
Held: Section 633a(a) [ADEA] prohibits retaliation against a federal employee who complains of age discrimination.
(a) In so concluding, the Court follows the reasoning of two prior decisions ruling that retaliation is covered by similar language in other antidiscrimination statutes. First, in Sullivan v. Little Hunting Park, Inc., 396 U. S. 229 , the Court held that a retaliation claim could be brought under 42 U. S. C. sec.1982, which provides that "[a]ll citizens ... shall have the same right ... as is enjoyed by white citizens ... to inherit, purchase, lease, sell, hold, and convey real and personal property." While sec.1982 does not use the phrase "discrimination based on race," that is its plain meaning. See, e.g., Jackson v. Birmingham Bd. of Ed., 544 U. S. 167 . Second, the Jackson Court, id., at 173-174, relied on Sullivan in holding that Title IX of the Education Amendments of 1972, 20 U. S. C. sec.1681(a), which prohibits "discrimination" "on the basis of sex" in educational programs receiving federal aid, reached retaliation against a public school teacher for complaining about sex discrimination in his school's athletic program. 544 U. S., at 176-177. The ADEA language at issue ("discrimination based on age") is not materially different from the language at issue in Jackson and is the functional equivalent of the language at issue in Sullivan, see Jackson, supra, at 177. And the context in which the statutory language appears is the same in all three cases: remedial provisions aimed at prohibiting discrimination. Respondent neither asks the Court to overrule Sullivan or Jackson nor questions those decisions' reasoning, and the Government, both in Jackson and in CBOCS West, Inc. v. Humphries, ante, p. ___, has specifically urged the Court to follow Sullivan's reasoning. . . .
(c) Respondent's other arguments supporting the contention that sec.633a(a) does not encompass retaliation claims are rejected.
(1) Respondent places too much reliance on the presence of an ADEA provision specifically prohibiting retaliation against individuals complaining about private-sector age discrimination, sec.623(d), and the absence of a similar provision in sec.633a. Because sec.sec.623 and 633a were enacted seven years apart rather than simultaneously, see Lindh v. Murphy, 521 U. S. 320 , and because they are couched in very different terms--with sec.sec.623(a)(1)-(3) listing specific forbidden employer practices in contrast to sec.633a(a)'s broad prohibition of "discrimination"--the absence of a federal-sector provision similar to sec.623(d) does not provide a sufficient reason to depart from Sullivan and Jackson.
(2) There is even less merit in respondent's reliance on sec.633a(f), which provides that personnel actions by a federal entity covered by sec.633a "shall not be subject to, or affected by, any provision of this chapter" other than sec.633a and sec.631(b), which restricts ADEA coverage to persons at least 40 years old. Respondent's contention that recognizing federal-sector retaliation claims would make sec.623(d) applicable to federal-sector employers in contravention of sec.633a(f) is unsound because the Court's holding today is not based on sec.623(d) but on sec.633a(a) itself, "unaffected by other [ADEA] sections," Lehman v. Nakshian, 453 U. S. 156 . P. 13.
(3) Also unavailing is respondent's argument that the history of congressional and Executive Branch responses to discrimination in federal employment demonstrates that when Congress enacted sec.633a, it anticipated that the pre-existing reprisal regulations of the Civil Service Commission (CSC) would be extended to cover federal-sector age discrimination and be the exclusive avenue for asserting retaliation claims. This argument is not supported by direct evidence, but rests on unsupported speculation, and, in any event, is self-contradictory in that, if sec.633a(a) does not confer an antiretaliation right, there is no reason to assume that Congress expected the CSC to issue new regulations prohibiting retaliation. . . .
Very good news for federal employees.