This post continues a discussion of Tuesday’s decisions in CBOCS v. Humphries, and Gomez-Perez v. Potter, that I started here.

III.         Gomez-Perez and the Meaning of Silence

The plaintiff in Gomez-Perez alleged that after she complained about age discrimination at a federal agency, she was subject to various forms of retaliation.  She challenged that retaliation under the Age Discrimination in Employment Act (ADEA).  As originally enacted, the ADEA applied only to private employers and included a list of prohibited conduct, including retaliation.  In 1974, Congress amended the statute to cover federal employees as well.  But rather than simply subjecting federal employers to the existing list of prohibited conduct, Congress enacted an entirely separate, and more broadly worded provision that provides that “[a]ll personnel actions affecting [federal] employees … who are at least 40 years of age … shall be made free from any discrimination based on age.”  Congress did not include a separate provision prohibiting retaliation.  Thus, the same basic question arose as in the CBOCS case: did the prohibition against age discrimination include within it protection against retaliation?

With one exception, the same majority that decided CBOCS in the employee’s favor reached the same conclusion with respect to the ADEA.  In fact, the two decisions begin almost identically, rehearsing the history of the Court’s prior construction of other antidiscrimination statutes in Sullivan v. Little Hunting Park, 396 U.S. 229 (1969) (construing 42 U.S.C. § 1982), and Jackson v. City of Birmingham, 544 U.S. 167 (2005) (construing Title IX).  And like the majority in CBOCS, the majority in Gomez-Perez concluded that the similarities in language and general purpose between the ADEA and these prior antidiscrimination statutes supported giving the general federal sector provision the same reading.

There is, however, a significant difference between the Section 1981, as construed in CBOCS, and the federal sector ADEA provision, one that led the Chief Justice to jump from the majority in CBOCS to the dissent in Gomez-Perez: unlike the Civil Rights Act of 1866 (from which Section 1981 is derived), the ADEA has a separate express anti-retaliation provision, but one that was included in the private-sector provisions, not the public-sector provisions.  To the Chief Justice – and to the United States, which had supported the employee’s reading of Section 1981 in CBOCS, and the plaintiff’s reading of Title IX in Jackson – that made all the difference.

The inclusion of an anti-retaliation provision in one part of the ADEA, but not another, posed a common interpretive question: how to construe congressional silence upon a question upon which Congress has spoken in another context.  The question arose in CBOCS, when the employer pointed out that Congress has spoken specifically and directly about retaliation in some modern-day civil rights statutes, but not in Section 1981.  That gave rise, the defendant argued, to the presumption that Congress’s failure to specifically include one in Section 1981 (either as enacted, or more plausibly, when amended in 1991) signaled its intent that retaliation should not be prohibited under Section 1981.

A stronger version of the same argument arose in Gomez-Perez.  Here, Congress included an anti-retaliation provision not in some completely separate statute passed at a different time; Congress included it within the very same statute, but limited it to private sector suits.

While acknowledging that the argument had some force, Justice Alito and the majority concluded that it was not enough to overcome the other reasons for concluding that the general proscription against discrimination contained within it a prohibition against retaliation.  Justice Alito noted that although the private sector anti-retaliation provision is codified within the same statute, Congress actually passed the private and federal sector provision at different times (the federal provision was added some seven years later).  Moreover, the negative inference would have been stronger, the Court concluded, if Congress has modeled the federal sector provision on the private sector provision, setting our a list of prohibited conduct but excluding retaliation from the list.  But Congress didn’t do that.  Instead, it modeled the federal sector provision on a prior statute that had extended Title VI’s prohibition against employment discrimination to the federal government.  And both provisions simple proscribed, in broad terms, discrimination writ large.

As mentioned before, the Chief Justice took a different view.  While he was willing to acknowledge that sometimes a general prohibition against discrimination should be read to prohibit retaliation (hence, his vote with the majority in CBOCS), he viewed this as a presumption that could be overcome by other indicia of legislative intent, including, as here, the inclusion of an anti-retaliation provision in one part of a statute, but not anther.

Why, one might ask, would Congress intend to permit retaliation in the federal employment context?  It didn’t, in the Chief Justice’s view.  Instead, he concluded, Congress intended for federal employment retaliation claims to be dealt with administratively, not judicially, through the executive orders prohibiting retaliation that are subject to enforcement through the civil service system.

Sticking to their guns, Justices Thomas and Scalia also dissented, finding the Chief Justice’s contextual argument persuasive but also reiterating their disagreement with the basic premise that an anti-discrimination provision can be read to prohibit retaliation.

IV.         Concluding Thoughts

What to take away from these decisions?

First, I think that the Court has more or less established a general presumption that federal civil rights statutes prohibit retaliation whether they say so explicitly or not.   Defendants hoping to avoid such liability will have to show some pretty clear indication of a contrary legislative intent; the fact that Congress elsewhere (or even in the same statute) prohibited retaliation explicitly, is unlikely to carry the day.

Second, I find the comparison between the tenor of Justice Breyer and Justice Alito’s opinions quite interesting.  Breyer bends over backwards to emphasize that his opinion is grounded principally in stare decisis, even to the extent of almost seeming apologetic for having to follow questionable prior precedent.  Justice Alito, on the other hand, mentions stare decisis only once, in a footnote.  His opinion, in contrast, reads as if convinced that the decisions in Sullivan and Jackson were rightly decided and would be followed even setting aside respect for prior precedent.

I seriously doubt that Justice Breyer has greater doubts about those cases than Justice Alito – after all, Breyer signed on to the majority opinion in Jackson.  Instead, I wonder whether in writing his opinion, Breyer was worried that straying too far from a stare decisis rationale might lose him votes, particularly the votes of Justice Kennedy, who dissented in Jackson, and the Chief, who by that time had presumably voted in favor of reversal in Gomez-Perez.

Even more interesting to me is the question of whether Justice Alito actually thinks that Jackson and Sullivan were rightly decided.  It is hard to say.  Perhaps so, which would be heartening to the civil rights community.  But the tenor of the opinion could also simply be a stylistic choice or might reflect that Alito knew that the CBOCS opinion was already addressing stare decisis in detail.

Third, these opinions have to be a real disappointment to conservatives who thought that the recent changes in the Court would call into question many of the Court’s 5-4 decisions in which Justice O’Connor cast the deciding vote.  Indeed, many (including myself) thought that the Court had likely granted certiorari in CBOCS to circumscribe Jackson, given that the Court took the case in the absence of any asserted circuit split.

But not only did the new members decline to find a way to circumscribe O’Connor’s Jackson decision – a decision that offended many conservatives not only for its pro-plaintiff result, but also for what they perceived as its failure to adhere to core textualist principles – they extended that decision to another context and, in the case of Justice Alito, seemingly used the decision to establish a broad principle of implied anti-retaliation protection across-the-board in civil rights statutes.

To be sure, there are important counter-examples in the area of affirmative action and abortion in which the Chief and Justice Alito have been less reticent to depart from prior 5-4 decisions of the recent past. But the decisions this week add support to the view that on issues they care less deeply about, the Chief Justice and Justice Alito are more amenable to stare decisis arguments than some had hoped and others had feared.

Posted in Gomez-Perez v. Potter, Uncategorized