High Court to Decide Reprisal Issue

You are a federal employee. You file a complaint of age discrimination under the Age Discrimination in Employment Act, (ADEA), against your supervisor, as you have the legal right to do. Your supervisor then retaliates against you for filing the age discrimination complaint. Here is the question: Does the ADEA protect you against retaliation? Put another way, can you file an EEO complaint alleging that the act of retaliation for filing the age complaint was illegal and seek a remedy from the courts? The Answer: It depends where you live. The U.S. Court of Appeals for the District of Columbia Circuit says such an act of retaliation is illegal. The U.S. Court of Appeals for the First Circuit, having jurisdiction over Massachusetts, Maine, New Hampshire, Rhode Island, and Puerto Rico, says the ADEA does not protect against acts of reprisal. Because of the disagreement between the courts, the U.S. Supreme Court has now agreed to settle the matter.

The First Circuit, in Gomez-Perez v. Potter, Postmaster General USPS, 476 F.3d 54, U.S. No. 06-1321, cert. granted 9/25/07, found that the ADEA provisions applicable to federal employees do not contain express language forbidding reprisal as do the provisions relating to private sector employees. Specifically, the First Circuit found that the definition of "employer" in the retaliation section of the Act did not include the federal government. Because the federal-sector portion of the Act did not contain an express prohibition on reprisal as the ADEA does for employees in the private sector, the First Circuit declined to read the Act as providing that protection. Thus, Ms. Gomez-Perez's lawsuit against the Postal Service for retaliation was dismissed. A different result would have occurred had Ms. Gomez-Perez worked in the District of Columbia.

In Forman v. Small, Sec'y, Smithsonian Institute, 271 F.3d 285 (D.C. Cir. 2001), the D.C. Circuit was confronted with the same legal issue about whether the ADEA prohibited retaliation against federal employees. The D.C. Circuit ruled that the provision of the ADEA waiving sovereign immunity for age discrimination claims extended to claims of retaliation. The D.C. Circuit found that the congressional prohibition of age discrimination against federal employees was broader that the prohibition of age discrimination against other employees. Rather than enumerating proscribed personnel actions, as it did for the private sector, the Congress, in protecting federal employees, prohibited discrimination based on age in "all personnel actions." The D.C. Circuit then reasoned that "analytically, a reprisal for an age discrimination charge is an action in which age bias is a substantial factor." The D.C. Circuit went on to state that it would be difficult to image how a workplace could be free from any discrimination based on age if, in response to an age discrimination claim, a federal employer could fire or take some other action adverse to the employee. The D.C. Circuit concluded that nothing in the ADEA indicated that Congress intended the federal workplace to be less free of discrimination than the private sector workplace, and to the contrary, Congress intended broader protections for federal employees.

For its part, the EEOC believes that retaliation for filing an age complaint is illegal. In fact, the EEOC's own regulations, at 29 C.F.R. § 1614.101(b), provide that retaliation for engaging in protected activity under ADEA is prohibited: "No person shall be subject to retaliation for opposing any practice made unlawful by . . . the Age Discrimination in Employment Act." The Justice Department disagreed, arguing in opposition to the Supreme's Court taking this case up on appeal.

A decision is not expected from the Supreme Court on this matter until late next spring. In the meantime, if you have a claim of reprisal for filing an age complaint or complaining about age discrimination, you would be best advised to keep your complaint in the administrative forum and not file in a U.S. district court. Unless, that is, you work in the District of Columbia.