Supreme Court To Decide Whether Age Discrimination in Employment Act (ADEA) Prohibits Retaliation Against Federal Employees

The Age Discrimination in Employment Act (ADEA) of 1967 prohibits employers from refusing to hire, discharge, or otherwise discriminate against employees who are at least 40 years of age. The goal of the ADEA is to promote the employment of older persons and to prohibit employers from engaging in arbitrary discrimination based on age.

This term, the Supreme Court will hear no less than five cases involving age discrimination. As reported by National Public Radio (NPR) in an article entitled
Age Discrimination Hits Supreme Court, the traditional notions of retirement are changing:

The percentage of people 65 and over who continue to work has grown from 10.8 percent in 1985 to 16 percent last year …. For people 55 to 64, the numbers also are up, from 54.2 percent in 1985 to 63.8 percent in 2007.

Novel issues abound. In Gomez-Perez v. Potter, for instance, Myrna Gómez-Pérez worked as a clerk for the United States Postal Service in Puerto Rico. After filing an age discrimination charge against her supervisors under the ADEA, Gómez alleged that she suffered retaliation. The federal district court granted summary judgment for the Postal Service, reasoning that the United States had not waived sovereign immunity as to retaliation claims under the ADEA.

Gómez appealed to the United States Court of Appeals for the First Circuit. The First Circuit reversed, in part, holding that the United States did waive sovereign immunity, but that Section 15 of the ADEA does not provide a cause of action for retaliation by federal employers.

As reported in an article by the Washington Post entitled Public Workers’ Shield Against Reprisal for Bias Claims Pondered, Chief Justice John G. Roberts Jr. and Justice Antonin Scalia will likely interpret this issue differently from Justice Ruth Bader Ginsburg.