Public Workers' Shield Against Reprisal for Bias Claims Pondered

By Robert Barnes
Washington Post Staff Writer
Wednesday, February 20, 2008

Congress decided more than 30 years ago to make it clear that the nation's age discrimination law protects federal employees. So does it make sense that Congress at the same time chose not to shield workers from retaliation for making discrimination allegations?

That was the question posed to the Supreme Court yesterday, and the answer will say much about how broadly the court is willing to protect workers from retaliation when the discrimination laws in question do not specifically mention freedom from reprisals.

Yesterday's case involving the U.S. Postal Service was the first of two such cases the court will hear this week, and one of several the court has accepted concerning employment discrimination and retaliation.

As the American workforce ages and diversifies, it is an issue that is raised with increasing frequency. Jocelyn Frye, general counsel for the National Partnership for Women and Families, said the number of retaliation claims filed with the Equal Employment Opportunity Commission has nearly doubled since 1992.

Washington lawyer Joseph R. Guerra, representing Puerto Rican postal worker Myrna Gomez-Perez, told the justices that Congress clearly intended to cover both discrimination and retaliation when it amended the Age Discrimination in Employment Act (ADEA) in 1974 to cover federal workers.

Guerra said he relied on the "plain language" of the law, which says that all personnel actions concerning those 40 and older "shall be free from any discrimination based on age."

But Guerra quickly ran into trouble with Chief Justice John G. Roberts Jr. and Justice Antonin Scalia, who pointed out that those words say nothing about retaliation. Because Congress explicitly protected private employees from retaliation, they said, it must mean something that it did not offer the same protection regarding public employees.

"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. "The plain language doesn't cover it."

That was the argument Deputy Solicitor General Gregory G. Garre, representing the Postal Service, offered. But he faced tough questions about why Congress would make such distinctions.

"As I think you would recognize, retaliation claims go hand in hand with discrimination claims," Justice Ruth Bader Ginsburg said. "A person who is discriminated against will quite commonly say: I was not promoted because that was discrimination, and then because I complained about it, all these bad things happened to me."

Garre's job was complicated by the fact that the federal government has argued in the past that workers are protected from retaliation even if that word is not specifically mentioned in the discrimination law at issue.

Indeed, the government has taken the side of a black restaurant manager who is suing for retaliation under a post-Civil War law that does not specifically mention the word. The court will hear that case today.

"Would it be unkind to say that the government's position seems to be that a general ban on discrimination includes a ban on retaliation except when the government is being sued?'' Justice Samuel A. Alito Jr. asked.

Garre said federal employees have other remedies, such as civil service laws, for bringing their complaints, although Guerra said large groups of federal workers still would not be protected from retaliation.

Alito's views on the case could be pivotal. The court in 2005 found that retaliation was a form of discrimination outlawed by Title IX, which covers gender discrimination, even though it is not specifically mentioned in the text. That 5 to 4 decision was written by former justice Sandra Day O'Connor, whom Alito replaced upon her retirement.

Yesterday's case is Gomez-Perez v. Potter.

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