U.S. Supreme Court

High Court Considers Retaliation Cases, Two Days in a Row

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Yesterday the U.S. Supreme Court considered whether Congress intended to protect federal workers from retaliation for making age discrimination complaints. Today it will take up a second case about the scope of retaliation protection in a post-Civil War law that bars discrimination in business dealings.

Lawyer Joseph Guerra, who represents postal worker Myrna Gomez-Perez, argued yesterday that the plain language of the age discrimination law, amended in 1974 to cover federal workers, covers retaliation claims, the Washington Post reports. The law says all federal workers over 40 “shall be free from any discrimination based on age.”

But Chief Justice John G. Roberts Jr. and Justice Antonin Scalia said there was nothing about retaliation in that plain language, the Post story says. “I can see your argument that it ought to be covered, but to say that the plain language covers it, I mean that’s extraordinary,” Scalia said.

Professor Paul Secunda of the University of Mississippi summarizes the legal controversy this way on Workplace Prof Blog: “The issue comes down to whether the federal employee provisions of the ADEA must mention retaliation expressly or whether retaliation actions can be implied from the discrimination language and similar language in the nonfederal employee parts of the ADEA.” He predicts a 5-4 decision against the plaintiff.

The case, Gomez-Perez v. Potter, is one of two involving retaliation being argued this week, according to the Christian Science Monitor, and one of five involving allegations of age discrimination, the Associated Press reports. The San Francisco Chronicle briefly described all five cases.

Both retaliation cases concern interpretation of laws covering age discrimination. The second case, CBOCS West v. Humphries, will be argued today. At issue is whether Section 1981 of the Civil Rights Act covers retaliation although it does not specifically mention the word. A third retaliation case asks whether a worker who was fired after cooperating in an internal probe of sexual harassment may sue for retaliation. It has not been set for argument.

Other issues presented by the employment cases include whether retirement-age workers are entitled to disability payments and whether “me too” evidence may be used to prove discrimination, the AP story says. In Sprint/United Management Co. v. Mendelsohn, a laid-off employee wants to introduce evidence of age discrimination against other employees, even though they worked for different supervisors.

AP points out that the justices range in age from 53 to 87, but don’t have to worry about age discrimination because they have life tenure.

Updated 1:04 p.m. to include information from the San Francisco Chronicle.

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