WASHINGTON, D.C. — A split U.S. Supreme Court ruled May 27 that the Age Discrimination in Employment Act’s federal-sector provision bars retaliation against an employee who alleges age bias (Myrna Gomez-Perez v. John E. Potter, No. 06-1321, U.S. Sup.).
In the 6-3 ruling, the high court majority opined that the respondent, Postmaster General John E. Potter, erred in basing his argument primarily on the ADEA’s provision addressing employees in the private sector.
“In the private-sector provision, Congress set out a specific list of forbidden employer practices. See 29 U. S. C. §623(a). The omission from such a list of a specific prohibition of retaliation might have been interpreted as suggesting that Congress did not want to reach retaliation, and therefore Congress had reason to include a specific prohibition of retaliation, §623(d), in order to dispel any such inference,” Justice Samuel A. Alito Jr. wrote for the majority.
“The ADEA federal-sector provision, however, was not modeled after §623(d) and is couched in very different terms,” he continued. “The ADEA federal-sector provision was patterned ‘directly after’ Title VII’s federal-sector discrimination ban. Like the ADEA’s federal-sector provision, Title VII’s federal-sector provision, contains a broad prohibition of ‘discrimination,’ rather than a list of specific prohibited practices.”
The majority also rejected Potter’s argument that under the principles of sovereign immunity, the federal-sector provision should be read narrowly so as to bar age discrimination but not retaliation. Justices John P. Stevens, Anthony M. Kennedy, David H. Souter, Ruth B. Ginsburg and Stephen G. Breyer joined in the opinion.
Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Antonin Scalia dissented.
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