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Supreme Court Wrap-Up II: Court Finds Implied Claim of Retaliation in Age Discrimination Act

It has been a good Supreme Court term for employees. In a recent post, we wrote about the Supreme Court’s decision in CBOCS West, Inc. v. Humphries, in which the Court held that 42 U.S.C. § 1981 (Section 1981) encompasses retaliation claims even though the text of the statute contains no reference to retaliation. In today’s post, we discuss another retaliation decision by the Supreme Court, Gomez-Perez v. Potter, in which the Court held that under the Age Discrimination in Employment Act (ADEA), a federal employee who is a victim of retaliation in response to the filing of a complaint of age discrimination may assert a retaliation claim under the federal-sector provision of the ADEA.

In the case, Myrna Gomez-Perez was employed by the United States Postal Service (USPS) and was 45 years old at the time when she requested a job transfer. When her supervisor rejected her request for a transfer she filed an internal age discrimination complaint, alleging that the denial of her transfer request was based on her age and therefore discriminatory. Ms. Gomez-Perez claimed that in response to her complaint, she was retaliated against by the USPS in various ways, including groundless complaints about her work and a significant reduction in her work hours.

In response to the alleged retaliation, Ms. Gomez Perez filed a discrimination lawsuit under the federal sector provision of the ADEA, 29 U. S. C. § 633a(a), alleging that she was retaliated against for filing her internal complaint of age discrimination. Both the district court and the First Circuit Court of Appeals ruled against Ms. Gomez-Perez, holding that that the federal sector provision of the ADEA does not encompass claims of retaliation.

On appeal to the Supreme Court, the Court first noted that Section 633a(a) does not contain any reference whatsoever to retaliation. Rather, it states simply that “all personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . shall be made free from any discrimination based on age.” Despite this lack of an express reference to retaliation, the Court concluded that the phrase “discrimination based on age” includes retaliation based on the filing of an age discrimination complaint.

In reaching its holding, the Court, as it did in Humphries, relied on other civil rights cases in which it had previously found an implied right of retaliation in the statute, noting that the “cases involve remedial provisions aimed at prohibiting discrimination.”

In a term in which the Court has been careful to rely on original intent and close textual analysis in reaching its decisions, the decisions in Humphries and Gomez-Perez reflect quite a different approach.

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