Gomez-Perez v. Potter

Today I attended Supreme Court arguments in Gomez-Perez v. Potter, a case that asks whether the Age Discrimination in Employment Act (ADEA) prohibits federal employers, as opposed to private employers, from retaliating against employees who file complaints alleging age discrimination. Most members of the Court (Alito, Roberts, Scalia) seemed of the view that because the statute did not explicitly prohibit retaliation, it is not prohibited. A minority (Ginsburg, Souter) seemed ready to imply a retaliation cause of action. It was hard to read Breyer and Stevens, and Kennedy and Thomas were silent.

Surprisingly, some Justices suggested that the Court could go farther and say that TITLE VII does not prohibit retaliation against federal employees. Even the Justice Department was not asking for that, saying it was an open question. Scalia in particular complained that he needed to examine the text of Title VII. Scalia and others suggested that federal employees may have remedies through the Civil Service Reform Act or collective bargaining agreement.

It would be quite something if the Court says that Title VII does not provide for retaliation claims by federal employees (although, again, it is not explicitly provided for in the statute, and Congress knew how to write anti-retaliation language for the private sector). Because the Court likes to stick to statutory language, I predict that they will hold that a federal employee may not make a retaliation claim under the ADEA.