Age Discrimination In Employment Act Prohibits Not Only Age Discrimination But Also Retaliation For Making Age Discrimination Complaints

In Gomez-Perez v. Potter, (— S. Ct. —, 2008 WL 2167189, U.S., May 27, 2008), the United States Supreme Court considered whether the Age Discrimination in Employment Act of 1967 (“ADEA”) encompasses not only complaints of age discrimination, which its language expressly provides, but also claims of retaliation for complaining about discrimination, which its language does not. Citing similar rulings finding that laws banning discrimination based on race and sex prohibited retaliation for discrimination-related complaints, the Court found that ADEA’s ban on age discrimination also protected workers from retaliation for making age discrimination complaints.


Myrna Gomez-Perez, age 45, worked for the United States Postal Service (“USPS”) in Puerto Rico in 2002 when she requested and received a transfer to another office in Puerto Rico to be closer to her ill mother. A short time later, she requested a transfer back to her original office but this request was declined. Gomez-Perez subsequently filed an unsuccessful union grievance followed by an age discrimination complaint with the USPS. Gomez-Perez claimed she was then subjected to retaliation, including false and groundless accusations and complaints made against her, and reduced hours. She filed suit in United States District Court naming Postmaster John Potter as a defendant and alleging retaliation against her for complaining about age discrimination in violation of the ADEA.

The district court granted summary judgment to Potter and the USPS citing sovereign immunity. The United States Court of Appeals ruled that the USPS does not have sovereign immunity but that the ADEA ban on age discrimination does not encompass retaliation thus affirming the district court’s decision. Gomez-Perez appealed.

Supreme Court Decision

The Supreme Court said it was guided by prior decisions interpreting similar language in other anti-discrimination statutes.

In Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969), the Court considered the case of a white man expelled from a corporation that leased homes and operated a park and playground, for renting his house and assigning his shares to an African-American man. There, the Court ruled that to uphold such retaliation for seeking to implement an anti-discrimination law would have effectively perpetuated the illegal restrictions banned by the statute outlawing racial discrimination in selling or renting property.

Similarly, in Jackson v. Birmingham Bd. Of Ed., 544 U.S. 167 (2005), the court noted it relied on Sullivan to interpret that Title IX of the Education Amendments of 1972 precluded a school board from retaliating against a teacher for complaining about sex discrimination in the high school’s athletic program. Jackson flowed naturally from Sullivan, the court said, because retaliation for advocating the rights of the girls’ basketball team constituted sex discrimination just as retaliation for advocating the rights of the African-American lessee in Sullivan constituted race discrimination.

The Gomez-Perez case is similar because all three deal with statutory language in the same context; specifically, remedial provisions aimed at prohibiting discrimination, the court said. Therefore, it follows that allowing retaliation for complaining about age discrimination effectually perpetuates the discrimination. The argument that because a separate statute prohibits retaliation for age discrimination complaints in the private sector, but does not expressly do so for federal employment, ADEA should not be construed to preclude retaliation in the federal employment, is not a sufficient reason to depart from the precedents of Sullivan and Jackson, the court added.

The judgment of the Court of Appeals was reversed and remanded for further proceedings consistent with the Supreme Court’s ruling.