Gomez-Perez v. Potter Decision--allowing a retaliation claim under 633 of the ADEA

Surprise, surprise. By a 6-3 vote (opinion by Alito; dissent by Roberts, Scalia, Thomas), the Court decided that Sec. 633a(a) of the Age Discrimination in Employment Act of 1967 (ADEA) prohibits retaliation against a federal employee who complains of age discrimination. When I penned my essay summarizing the case as it came to the Court, I was sure that the Court wouldn't extend the reach of their 2005 Jackson decision, which allowed retaliation claims in Title IX cases. But Justice Alito surprised us--by finding that the logic of the Jackson case applied here after all.

Let me summarize some facts of the case briefly, from the Syllabus, before following some of his argument.

Relevant Facts in Brief

"Petitioner, a 45-year-old postal worker, filed suit claiming that her employer had violated the federal-sector provision of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 633a(a)-which requires that “[a]ll personnel actions affecting employees ... at least 40 years of age ... be made free from any discrimination based on age”-by subjecting her to various forms of retaliation after she filed an administrative ADEA complaint. The District Court granted respondent summary judgment. The First Circuit affirmed on the ground that § 633a(a)'s prohibition of “discrimination based on age” does not cover retaliation."

The Court's Reasoning

Justice Alito made several points in his majority opinion. First, the Court followed its reasoning in two prior decisions ruling that retaliatin is covered by similar language in other antidiscrimination statutes.

"First, in Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 237, 90 S.Ct. 400, 24 L.Ed.2d 386, the Court held that a retaliation claim could be brought under 42 U.S.C. § 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 § 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, 177, 125 S.Ct. 1497, 161 L.Ed.2d 361. Second, the Jackson Court, id., at 173-174, 125 S.Ct. 1497, relied on Sullivan in holding that Title IX of the Education Amendments of 1972, 20 U.S.C. § 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, 125 S.Ct. 1497. 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, 125 S.Ct. 1497. 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, has specifically urged the Court to follow Sullivan's reasoning."

This "reasoning by analogy" was, I think, the decisive issue in the majority opinion. He argues, second, that the grounds used by the lower courts which sought to distinguish Jackson, and sought to argue that there was a clear difference between causes of action for discrimination and for retaliation aren't persuasive. Two of the unconvincing grounds are as follows:

"(1) The Circuit places too much reliance on the fact that the ADEA expressly creates a private right of action, whereas the right of action under Title IX, the statute at issue in Jackson, is implied and not express, see Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560. The assertion that this distinction allowed the Jackson Court greater leeway to adopt an expansive interpretation of Title IX improperly conflates the analytically distinct questions whether a statute confers a private right of action and whether the statute's substantive prohibition reaches a particular form of conduct. Moreover, confusing these questions would lead to exceedingly strange results. For example, Title IX's prohibition of “discrimination” “on the basis of sex” either does or does not reach retaliation, and the presence or absence of another statutory provision expressly creating a private right of action cannot alter § 1681(a)'s scope.

(2) Also unavailing is the Circuit's attempt to distinguish Jackson on the ground that retaliation claims play a more important role under Title IX than under the ADEA. This argument ignores the basis for Jackson, which did not hold that Title IX prohibits retaliation because such claims are important as a policy matter, but, instead, relied on an interpretation of the “text of Title IX.” 544 U.S., at 173, 178, 125 S.Ct. 1497. Jackson's statement that “teachers ... are often in the best position to vindicate [student] rights,” id., at 181, 125 S.Ct. 1497, did not address the question whether the statutory term “discrimination” encompasses retaliation, but was made in response to the school board's argument that only a “victim of the discrimination,” not third parties, should be allowed to assert a retaliation claim, id., at 179-182, 125 S.Ct. 1497.

Conclusion

So, here was Alito, a textualist of the Scalia-Thomas mold, talking about the text and what might reasonably be inferred from the text. It is the same debate, actually, that Biblical scholars have had since the 1970s on issues of gay ordination, women's ordination and other issues. What Biblical scholars learned as time goes along is that textualits, or "conservatives," begin to use the text against other textualists, in such a way to show, ultimately, the subjective nature of this supposedly most "objective" discipline (just reading the text). This is a good thing for the Supreme Court to learn, too, and Justice Alito's opinion shows us just how much "flex" there is in the textualist's methods of interpretation.

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