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Gomez-Perez v. Potter
Gomez-perez V. Potter Oral Argument Transcript (html)
Docket No. 06-1321
Oral Argument: Tuesday, February 19, 2008
Decided: Tuesday, May 27, 2008

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Transcript: 

Argument of Joseph R. Guerra

Chief Justice Roberts: We'll hear argument first today in Case No. 06-1321, Gomez-Perez v. Potter.

Mr. Guerra.

Mr. Guerra: Mr. Chief Justice, and may it please the Court: The government claims in this case that Congress decided to treat retaliation against Federal workers who complain of age discrimination differently than every other species of retaliatory conduct, that for age based retaliation alone Congress created a four part patchwork scheme in which a small cadre of Federal employees have a full judicial remedy, but tens of thousands of others who suffer retaliatory conduct have absolutely no remedies at all.

This scheme is inconsistent with over three decades of administrative interpretations by the agencies charged with administering and enforcing the statute and it is flatly inconsistent, most importantly, with the plain language and historical origins of the statute itself.

By its plain terms, Section 633a(a) bars retaliation against covered workers who have complained that have they suffered age discrimination.

Such retaliation is directed at persons over--

Justice Scalia: Excuse me.

By its plain terms?

Mr. Guerra: --Yes, Justice Scalia.

Justice Scalia: Read it to me, would you?

Mr. Guerra: The provision is:

"All personnel actions shall be made... affecting covered employees shall be made free from any discrimination based on age. "

Justice Scalia: Is retaliation discrimination based on age?

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.

The plain language doesn't cover it.

Mr. Guerra: With respect, Justice Scalia, I submit it does cover it for at least three reasons.

First of all discrimination... retaliatory conduct aimed at a 40-year-old or someone over age 40 because he or she is asserting rights she possesses by virtue of being age 40 or older is discrimination based on age.

Chief Justice Roberts: No, it's not.

I mean, a company could have a policy of firing everybody who complains about anything and the fact that a worker is over the age of 40 and is fired does not mean that he is being fired because of age.

Mr. Guerra: Mr. Chief Justice, the issue in this case is whether plaintiff is entitled to allege and ultimately prove that she was... she suffered adverse personnel actions because she complained of age discrimination.

It may be that in some, that in a certain case the employer could demonstrate that in fact the retaliatory conduct was not triggered by the nature of the complaint, and in fact there have been Title VII cases where the courts have found that it was the manner in which a complaint was lodged, that there was, that there was false statements or it was too inflammatory, and so the employer prevailed.

But if... the issue here is whether, if Ms. Gomez can prove ultimately that the retaliatory conduct was a function of the fact that as a 40-year-old she was asserting her rights to be free from age discrimination, we submit that is covered by the plain language of the statute.

And that is confirmed by this court's interpretation of Title IX in the Jackson case because there the Court--

Chief Justice Roberts: Of course the statute that covers age discrimination in the private sector does have an express provision addressing retaliation.

The one that governs Federal employees does not, and that's the government's main argument, that it's expressed in the private sector, it's not there in the public sector and so you shouldn't imply one.

What's your answer to that?

Mr. Guerra: --Mr. Chief Justice, three responses to that.

First of you, as this Court explained in Jackson itself, it's improper to narrow the scope of a stand alone general discrimination ban that does not identify any discriminatory practices based on a comparison with an enumeration ban that sets forth a detailed series of prohibitions.

And that's precisely the comparison that the Court rejected in Jackson and the government is asking the court to draw here.

Justice Scalia: But in Jackson it was in a different statute and here it's in the same statute.

Surely that makes a big difference.

Mr. Guerra: It doesn't in this case, Justice Scalia, for two reasons.

First of all, subsection (f) of section 633a effectively deems the private sector and the Federal sector provisions of the Age Act to be the functional equivalents of two separate statutes.

So I think that distinction is refuted by that provision.

But more fundamentally, the government's argument--

Justice Scalia: I'm not familiar with that provision.

What does that provision say?

Mr. Guerra: --That is the provision that the government cites in its brief and it provides that:

"Any personnel action of any department, agency, or other entity referred to in subsection (a) of this section shall not be subject to or affected by any provision of this chapter other than the provisions of Section 631b of this title. "

And the government's position is that that provision makes these statutory schemes utterly distinct from one another.

Justice Scalia: Well, no.

I mean, they're all in the same, in the same statute, and what that provision says is that just because we give certain relief in, in the portion applicable to private discrimination, does not mean that we give that relief in the section applicable to government discrimination, where it is explicitly withheld... it can't be explicitly withheld... where it is withheld, although it's explicitly included for private discrimination.

I think that's the only sensible way to read that provision.

It surely doesn't make two statutes out of, out of one.

It is simply one statute.

Mr. Guerra: Justice Scalia, if I may, two points.

One is it's clear that the scope of the language of 633a(a) is broader in its own right than 623a, which is the... or 623a and 623b operate in conjunction with each other.

So we know that the stand alone prohibition in the Federal sector side is intended to be broader than the... the discrimination ban of 623(a).

So it's not anomalous at all to conclude that because it sweeps more broadly and because it's not limited by any other provision that operates in conjunction with it, that there's no basis for drawing a negative inference.

Justice Alito: Well, why would Congress have taken this drafting approach?

The private sector provisions were already in existence when it made the statute applicable to Federal workers and there was a specific provision prohibiting retaliation in the private sector.

If Congress wanted to carry that over to the Federal sector, why wouldn't they have either copied that or incorporated it?

And they did neither, and in fact they enacted a provision that says that the private sector provisions are not incorporated unless they're specifically noted.

And this isn't one of the ones that's noted.

Mr. Guerra: Justice Alito, if I could... the second point I was going to address to Justice Scalia I think answers this, this point.

Congress did the exact same thing in Title VII two years earlier.

It could have added Federal employers to the definition of employer and subjected them to the private sector regime there, but instead it created a stand alone prohibition.

If you take the government's logic in this case and apply it to Title VII, it would lead to the conclusion that the Federal sector ban in Title VII, which is 717(a), does not bar retaliation either, and yet we know that's not true.

Because--

Justice Ginsburg: Why?

This Court hasn't so held.

We haven't had that issue before us.

Mr. Guerra: --You... that's correct, Your Honor.

It's not true because of this Court's holdings, but it's true because of the structure of the statute, the consistent interpretations of the lower courts and the administrative agency.

The structure of the statute is, in 717(a), the language, the prohibition there is virtually identical to the prohibition here except it proscribes race discrimination, et cetera, instead of age discrimination.

Then, in the remedy section Congress explicitly made a remedy for retaliation available for violations of 717(a)'s substantive norm.

The only reason to do that was because Congress understood that substantive norm to prohibit retaliation.

Congress then copied that very same language into 633a(a), thereby giving it the same breadth.

And so the negative inference theory the government puts forward with respect to Title VII fails on that statute because of the incorporation of the remedies, we know that that prohibition bars retaliation.

And because the norm at issue here was copied from that Federal sector prohibition in Title VII, the same reasoning dictates that the argument fail here as well.

Chief Justice Roberts: The Federal employee, though, has all of the remedies under the Civil Service Reform Act for any type of employment practice.

Those remedies are elaborately reticulated and almost impenetrable, and yet this would add complication.

In other words, despite all the remedies under the CSRA that says in some cases you go here, in other cases you go here, and you get different types of review depending on the facts, all of that would be wiped away if you can bring a direct action under the age discrimination statute.

Mr. Guerra: Three points, Mr. Chief Justice: First of all, everything you just said would be equally true of discrimination under Title VII, and yet the government acknowledges that retaliatory conduct for race discrimination claims, sex discrimination claims, can all be brought directly in court, notwithstanding the existence of the CSRA.

Justice Ginsburg: Did the government... well, we'll ask the government, but I thought they kind of qualified that in their brief.

The brief says that the case... this case presents no occasion to consider whether Title VII's ban on discrimination against Federal sector employees incorporates that Act's private sector retaliation ban.

So they haven't made a concession.

Mr. Guerra: Well, I... Justice Ginsburg, I read them to be conceding for purposes of this case and the analysis of this case, and if they're willing to acknowledge, at least for purposes of this case, that all these other retaliatory claims can be brought outside of the CSRA regime, it makes no sense, I submit, to single out retaliation based on age discrimination claims.

And, in fact, Congress--

Justice Scalia: I think you're saying even if, even if that were the case, they would still urge the Court to come out the way they do.

I don't think they're conceding that that's the case.

Mr. Guerra: --But, Justice Scalia, even if... if... even if taken on the CSRA is the exclusive remedy for retaliation for age complaints and yet not for retaliation under Title VII.

Also, Mr. Chief Justice, the CSRA itself explicitly carves out claims under the ADEA and Title VII.

So, Congress did not view it as the exclusive--

Chief Justice Roberts: But not retaliation claims.

In other words, although the direct claims, as you put it, may or may not be carved out, a retaliation claim fits under the employment practices provisions of the CSRA, regardless of the basis for retaliation.

In other words, you took personnel action against me for an impermissible basis and therefore I'm entitled to the various civil service remedies.

Mr. Guerra: --That's... that's correct, Mr. Chief Justice.

And of course, the CSRA covers retaliation that has nothing to do with complaints of employment discrimination as well.

So it would not be rendered a dead letter by recognizing our position.

Justice Souter: Does it cover your client?

Mr. Guerra: I don't believe it would, Justice Souter, because she did not suffer an adverse action.

No, and in fact putting that aside--

Justice Ginsburg: She could complain; it's just that she couldn't go very far with the complaint.

Mr. Guerra: --Well, more fundamentally, Justice Ginsburg, she's not covered at all by the CSRA.

And that was the third point I wanted to make.

The CSRA excludes thousands of employees.

Chief Justice Roberts: But it does that for a reason.

We have a lot of cases in the Federal Circuit and the D.C. Circuit that addresses a lot of these problems say that when the CSRA excludes certain types of claims of employees, they do it for a reason.

In other words, it's not simply that they didn't cover them or inadvertence, but they make the decision that the remedies that they've provided don't apply in a particular case.

And to say that those people who are excluded under the CSRA nonetheless have remedies for employment practices seems to me to undermine that... that judgment.

Mr. Guerra: Mr. Chief Justice, with respect, the problem with the government's reliance on the statute is that it doesn't... on their view, White House employees and congressional employees have a full judicial remedy for retaliation suffered for raising age discrimination complaints.

And our argument is it makes no sense to permit that one band of employees, many high level policy employee... policymakers, to bring retaliation claims in Federal court, while excluding Postal Service workers who have only collective bargaining rights and tens of thousands of other employees for--

Justice Breyer: The answer is that it doesn't exclude them, that they have all these collective bargaining rights; they have the civil service rights; they can go and bring their same claim with other remedies.

You could make the opposite claim: Why should they have two rights?

Everybody else has one.

I mean, that seems to me what they're argument is underlying this.

Then when you go to Title VII... and this I don't understand fully.

Look at Title VII and Title VII in 16(e) has a basic ban.

Is that right?

Mr. Guerra: --That's correct, Justice Breyer.

Justice Breyer: And then, in 16(d) it says certain of those things govern Federal suits, suits against the Federal Government.

Then it incorporates some provisions.

And it says that you get that certain relief against the Federal Government where there is discrimination on account of race, color, religion, sex, or national origin.

Then it says 3(a)> ["].

And then 3(a) refers to retaliation.

So it looks like Title VII does give you a remedy, in 3(a), for retaliation.

And it's rather specific, and that suggests that those other words don't pick up retaliation.

It's rather that specific thing.

Now, what have I missed?

Mr. Guerra: Justice Breyer, the... you are right to focus on these remedies, but the remedies themselves are not incorporated as substantive bans.

They are simply remedies, and our point is by making a retaliation remedy available for a violation of the ban that you identified in subsection 717(a), Congress necessarily understood that substantive ban, 717(a), to prohibit retaliation.

Otherwise there would be no reason to provide a remedy for retaliation as one of the remedies for a violation of--

Justice Breyer: Well, you could say that, but you could also say, well, look here in Title VII Congress has some words, and these words give you a specific... if you're a Federal employee and somebody's retaliating against you because you went and complained about race or something, just read those words; you can bring a lawsuit, right?

Am I right about that?

Mr. Guerra: --I don't think so--

Justice Breyer: No?

Mr. Guerra: --Justice Breyer.

You can bring a lawsuit under section--

Justice Breyer: You go to the EEOC?

Mr. Guerra: --Well, you can bring a lawsuit under Title VII if you are a person, an employee or applicant aggrieved.

Justice Scalia: Where is this stuff?

Where is this text that we're talking about?

Mr. Guerra: I apologize, Justice Scalia.

It is not in--

Justice Scalia: It's not in your brief.

It's not in the appendix.

So I don't know what you're talking about.

Mr. Guerra: --I am talking about subsection (c) of 717a, the Federal sector provisions of Title VII.

Justice Scalia: Which we don't have here now.

I guess I can ask--

Justice Breyer: Well, I'm not totally certain what I'm talking about either.

So we could go on.

[Laughter]

Mr. Guerra: I'd like to think I... I can illuminate the... the language that authorizes Federal employees to bring suits for violations of Title VII says that if they are aggrieved by final disposition of the complaint, they may bring a civil action under Title VII, and aggrieved... they can bring complaints for violations of subsection (a), which like subsection (a) in our statute says

"all personnel actions affecting employees or applicants for employment shall be made free from any discrimination based on race, color, religion. "

et cetera.

Justice Breyer: Or in violation of--

Mr. Guerra: No, it does not say that, Justice Breyer.

The prohibition of subsection (a) of 717a in substantive terms is identical, except it specifies a different protected status.

So this is a ban on discrimination based on race, color, religion, and you are authorized to bring a suit if you are aggrieved by a violation of that provision, and one of the remedies that's made available is a remedy that's available for violations of the private sector provision on retaliation.

Justice Ginsburg: Why is that so clear, because section 2000e, 16(d) says section, whatever it is, f through k of this title, as applicable, shall govern civil actions brought hereunder.

And if there is no right against retaliation, then the remedy wouldn't be applicable.

Mr. Guerra: Justice Ginsburg, the language "as applicable" I submit has to be referring to whether the case itself would implicate the need for that remedy.

In other words, it would not be applicable to have a reinstatement remedy in a case where there was no discharge.

But the reading that you have suggested assumes that Congress didn't know what it was... the scope of the prohibition it enacted in Section 717(a) and was effectively saying: Here are some remedies; we don't know whether they apply or not, but if they do, go ahead and use them.

And I submit that is an improper assumption about congressional understanding of its own legislation.

The proper assumption is that Congress understood 717(a) to bar retaliation.

That's why it provided a retaliation remedy, and that assumption is buttressed by the fact that, as this Court explained in the Brown v. GSA case, Congress adopted Title VII precisely because it found that fear of reprisal had made the old scheme ineffective.

So it makes perfect sense that it would want to prohibit retaliation under Title VII in the Federal sector because reprisals had rendered the old protections useless.

Justice Breyer: --Well, could you proceed with that?

That is, a very simple way of thinking of this as one possible way of reading it is that Congress says: When private employers discriminate, there can be whistleblower's, and they need protection; so let's put some in.

When State officials discriminate, say, on the basis of race, there can be some whistleblower's.

Maybe they protect them in some States; maybe they don't protect them in others.

We better put some in.

When Federal Government officials discriminate against on the basis of race, whistleblower's should be protected.

But we have a whole system here to protect them.

And so let's just use that system and treat all whistleblower's alike, and that's the end of the matter.

We don't need any special protection for whistleblower's here.

Now, the answer to that is what?

Mr. Guerra: That is the very system that Congress had deemed ineffective to prevent retaliation for the very claims you're talking about in... and that's why it chose to adopt the amendments to Title VII in 1972.

That's what the Brown case canvasses; and, in fact--

Justice Scalia: --Well, that's sort of begging the question.

I mean, you're saying it's not true because our interpretation of Title VII is true.

But the point goes to how you ought to interpret Title VII.

That is, it makes more sense to say when it's retaliatory action you use your Federally prescribed remedies within the agency.

I mean, it doesn't answer the point that Justice Breyer made to say, because we want to interpret Title VII the way we want to interpret it.

His point is: One reason to interpret it the way you do want to interpret it is that it makes more sense to have all of the Federal remedies applied through the agency, through the agency mechanism, rather than in court.

Mr. Guerra: --Justice Scalia, I apologize if I wasn't clear in my response, but what I'm saying is that in the Brown case this Court looked at the legislative history of Title VII... excuse me... yes, in 1972 and 1977... and said that the reason Congress adopted these, this new prohibition, was because the very scheme that Justice Breyer is suggesting would have been a fix for whistle blowing was ineffective.

That--

Justice Souter: Then it's ineffective here.

Mr. Guerra: --And it is ineffective here.

Justice Souter: And if it's ineffective here and Congress has made it clear that the only way to cure the ineffectiveness is with a separate provision and you don't have a separate provision, you're out.

Mr. Guerra: That's correct.

And the ineffectiveness here is because of the extraordinarily limited nature of the types of conduct that would trigger any rights that the employee could control under the CSRA.

Retaliation rarely takes the form of a removal from position or a suspension of more than 14 days.

The most typical things are poor performance evaluations, what we have in this case, allegations of groundless charges of misconduct.

Chief Justice Roberts: When you qualified your answer by saying that the employee can control, was that a way to dismiss the collective bargaining rights?

Mr. Guerra: Well, I was talking about actually the... the... you can complain about non adverse actions under the CSRA, but all you can do is ask the Office of Special Counsel to investigate.

And then you have no right to compel any further action at any step of the process.

So if the counsel decides not to investigate, that's the end of the matter.

If they do and the agency refuses to take their advice, that's the end of the matter.

There's no judicial remedy for the vast majority of retaliatory actions that a Federal employee could suffer under the CSRA.

Chief Justice Roberts: What about review under... by the Merit Systems Protection Board?

Mr. Guerra: That is the remedy under the CSRA, Mr. Chief Justice.

Chief Justice Roberts: So when you're talking about the Office of Special Counsel--

Mr. Guerra: If the Office of Special Counsel doesn't pursue the case... and the statistics in the NTEU brief suggest that it rarely... out of thousands and thousands of complaints, it pursued only in a small handful.

You have no right as the employee to do anything, to go to the MSPB or to any Federal court, if they decide not to pursue that claim.

And so that is... and, again, both because Title VII, I submit, clearly based on the remedial structure, would allow employees to bring all types of retaliation claims unrelated to age discrimination complaints in Federal court, it doesn't make sense for Congress to have relegated older workers who suffer age discrimination to this one scheme, especially because it excludes... Petitioner herself has no rights under the CSRA.

Justice Stevens: Mr. Guerra, can you help me on a provision of the statute that I'm a little puzzled about?

Am I correct in believing that Section 2000e-16, which is the provision under Title... 42 U.S.C.... I'm using the code number... that that is the provision that makes the Federal Government liable for retaliation based on sex and race?

Mr. Guerra: That is.

Justice Stevens: Is there another provision that is necessary for there to be a remedy against the Federal Government?

Mr. Guerra: For retaliation based on race and sex?

Justice Stevens: Under Title VII.

Mr. Guerra: No.

That's the remedy.

Justice Stevens: Then... your argument, if I understand it, is that precisely the same language that's found in 2000-16e is found in 233a.

Mr. Guerra: 633a.

Justice Stevens: 633a.

Mr. Guerra: Yes, Justice Stevens.

Justice Stevens: And, therefore, the two should be treated alike?

Mr. Guerra: Precisely.

That is the... that is our... one of our central arguments.

Of course, we also realize--

Justice Stevens: In other words, that the language

"shall be made free from any discrimination based on race, color, or religion. "

and so forth, covers retaliation.

And when you use the same language based on age it also would cover retaliation.

Mr. Guerra: --Absolutely, Justice Stevens.

Justice Stevens: It's just as simple as those two provisions being exactly--

Justice Ginsburg: It isn't that simple because the government hasn't conceded that, with respect to Title VII, Federal employees are covered for retaliation.

If the Government... we'll ask them... will make that concession, then the argument is very strong.

The words are identical.

Mr. Guerra: Justice Ginsburg, even if, as I anticipate, they will not make that concession, the fact of the matter is that the remedial structure of Title VII, the Federal sector provision, confirms that the substantive ban that Justice Stevens read necessarily covers retaliation.

Otherwise, Congress wouldn't have made a retaliation remedy available.

Chief Justice Roberts: --Well, another reason it's not that simple is that under the Age Discrimination Act you have a private remedy that specifically provides for retaliation.

And that is noticeably absent from the Federal remedy.

And I thought that was the strongest argument on the government's side.

Mr. Guerra: Well, Mr. Chief Justice, that is precisely the same... the same is precisely true of Title VII.

Section 704a of Title VII is the analog to 623(b) in our case.

Chief Justice Roberts: I thought there was a more express incorporation in Title VII of the private anti retaliation remedy, and you don't have that in this case.

Mr. Guerra: That is true, but our position--

Chief Justice Roberts: So that makes it not precisely the same situation.

Mr. Guerra: --Not precisely the same, Mr. Chief Justice, but this Court's... in that case, for example, this court said when you copy language verbatim into another statute, there must be some compelling evidence that you've intended to have given it a different meaning.

If you look at the remedy section of Section 633a(c), all you see there is not some dramatic difference, but what Congress did was it replicated the civil action provisions of the private sector in the Federal sector provision.

So it's not as though there's some stark evidence that Congress intended to have a drastically different regime.

It simply didn't... rather than incorporate subsection (c) of the private section, 626c, it simply replicated it.

I would like to reserve the balance of my time.

Argument of Gregory G. Garre

Chief Justice Roberts: Thank you, counsel.

Mr. Garre.

Mr. Garre: Thank you, Mr. Chief Justice, and may it please the Court: The Age Discrimination and Employment Act does not expressly prohibit retaliation in the Federal sector context and it should not be read to impliedly prohibits such conduct either.

Justice Ginsburg: Why not, given the Jackson precedent, where there was a similarly general ban on discrimination and we defined discrimination to include retaliation for complaining about discrimination?

Mr. Garre: Justice Ginsburg, the Court did so very, very focused on Title IX, the Court's cases interpreting the language of discrimination in Title IX broadly.

And it specifically distinguished statutes like Title VII and the Age Discrimination Act which delineate different types of discrimination.

In fact, on page 175 of the Court's decision in Jackson, the Court said because Congress did not list any specific discriminatory practices when it wrote Title IX, its failure to mention one such practice does not tell us anything.

And then it pointed to the fact that Title VII had delineated certain types of practices.

Justice Alito: Would it be... 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?

In Jackson the government argued that discrimination on the basis of sex included retaliation.

Tomorrow the government is going to argue that the prohibition of discrimination in section 1981 includes retaliation.

And yet here you're arguing exactly, what seems to me exactly the opposite position.

Mr. Garre: I think that would be unfair, Justice Alito.

The government's position is that statutory context matters.

It made that clear in footnote 1 of its Jackson brief before this Court.

It's made it clear in this case.

In this case, there are several indicia of statutory intent that are lacking where you have a general prohibition in the context of the inferred right that has... that this Court has treated differently, as it did in Jackson and as it should in the did in the CBOCS case that you'll hear about tomorrow.

In the Age Discrimination Act you have separate provisions of the Act which explicitly delineate different types of discrimination, including retaliatory discrimination, and in the Federal sector prohibition the Congress added in 1974, it added that at a time where it decided to treat State employers like Federal employers, specifically put the State employers in the definition of employer for the Federal... for the private sector provision of the Age Discrimination Act, and it created a stand alone provision for Federal employers.

And then it went even further.

It specifically said in subsection (f) of section 633a, the Federal sector provision, that the Federal sector provision should be unaffected by the private sector provision, the bootstrap to make clear that courts should not be reading into the Federal sector provision the additional protections or other provisions in the private sector provisions.

And this Court recognized the significance of that construction, that statutory scheme in the Lehman v. Nakshian case.

In that case, the Court considered whether Federal employees were entitled to a right to a jury trial in an action for discrimination under the Federal sector prohibition.

Private sector employees were entitled to that.

And so the plaintiffs in that case made an argument very much similar to the argument made by Petitioners in this case: Well, the private sector provisions covered a jury trial right; it would make no sense not to have a jury trial--

Justice Ginsburg: But that's... Mr. Garre, that's traditionally when you're suing the government, you don't get a jury.

And so that's on one side.

Here, as I think you would recognize, retaliation claims go hand in hand with discrimination claims.

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.

It's very common that those two go together.

And yet, without any indication that Congress meant to send a Federal employee off to one forum to argue discrimination and another forum to argue retaliation, without any hint that that's what Congress had in mind, it would be rather strange.

Mr. Garre: --Well, let me try to answer that question, Justice Ginsburg, but I just want to make one final point on Lehman and the statutory construction in that case.

The Court specifically said on page 162 of its decision that because Congress demonstrated that it knew how to provide a statutory right to a jury trial when it wished to do so elsewhere in the very legislation cited, but in section 633a it explicitly failed to do so, and it said that that was the conclusive point of statutory construction in that case.

So we do think the Lehman case is very on point here.

With respect to the general notion that it's uncommon to provide... not to provide an anti retaliation right when you do have an underlying anti discrimination prohibition, certainly we would agree with you that it is uncommon, but we don't think that it is absurd.

It's certainly not absurd where Congress was aware that there was a separate set of protections available for Federal workers--

Justice Ginsburg: But you... I recognize it's not absurd.

But if there is ambiguity and one interpretation is, well, that in every other context retaliation goes together with discrimination, why would Congress leave out this one category of persons, especially when it might have said, well, the Supreme Court says discrimination includes retaliation?

Mr. Garre: --Well, we know that Congress in the Civil Service Reform Act, as the Chief Justice noted, we know that it didn't think that additional anti retaliation protections were necessary for some Federal employees.

So the fact that Congress wouldn't have a separate anti retaliation... anti retaliation right in some situation in itself is not unprecedented.

We do think that the statute has several indicia that make clear that Congress did not intend to provide an anti retaliation right here.

Not only the contrast between the private sector and Federal sector provisions, but look at what Congress expressed in section 633a.

In at least three respects this is materially unlike the typical anti retaliation right.

Justice Alito: Can you say what the government's position is on Title VII, whether there is a retaliation remedy against the Federal Government?

Mr. Garre: As we make clear in our brief, we have not conceded that, Justice Alito.

We don't think it's necessary for the courts to decide that in this case--

Justice Ginsburg: What is the government's position?

What does, for example, EEOC or whoever passes on these complaints, what is the government's position in practice with respect to a Federal employee who complains, A, I was discriminated against because of my race and then they retaliated against me for complaining?

Mr. Garre: --I think in practice, Your Honor, we have not challenged the interpretation of the Federal courts that have found that Title VII does incorporate an anti retaliation right.

But there are at least--

Justice Ginsburg: Has any Federal court found otherwise?

Mr. Garre: --I'm not aware of a circuit court that has gone the other way on Title VII.

Certainly the Age Discrimination Act is different.

The First Circuit in this case explicitly recognized that the textual differences between Title VII and the Age Act call for a different result.

And there are at least two differences that we do think call for a different result under the Age Act.

The first is the fact that, whereas Title VII expressly incorporates the private sector provisions of the Act and by reference the anti retaliation provision of the Act--

Justice Ginsburg: So you agree... then you agree with Mr. Garre about the meaning of those words "as applicable"?

Mr. Garre: --Well, this Court actually has interpreted that phrase, v. Radabush.

It wasn't cited in the brief, but it is directly responsive to that question.

And the cite there is 425 U.S. 840.

And in that case the Court said that the "as applicable" language just means that there are certain provisions of the private sector remedies that are inherently incompatible in the Federal sector context.

And it pointed to the provisions in the private sector part of Title VII that allowed EEOC or the attorney general to intervene in the private action and take over the suit.

So the "as applicable" doesn't undermine the express incorporation of private sector remedies and anti retaliation.

And that's a critical difference between Title VII and the Age Act.

The Age Act not only does not include that express incorporation, it goes in just the opposite direction, and Congress went out of its way to say don't import the private sector provisions... it did that in section 633a(f)... don't incorporate those provisions, and that's what this Court recognized.

Justice Ginsburg: Do we know what Congress had in mind when it said don't incorporate private sector?

Mr. Garre: Well, this Court in the--

Justice Ginsburg: There must be an explanation for that section.

Mr. Garre: --I don't think there is any legislative history on point.

The Petitioners argue that it meant don't incorporate the more restrictive features.

But that argument is directly contradicted by this Court's decision in Lehman, where it pointed to section, subsection (f) of that provision as a reason to not import in the jury trial right that was not recognized for private sector employees.

The other way--

Chief Justice Roberts: Do you agree with your friend that this employee has no remedy under the Civil Service Reform Act?

Mr. Garre: --Yes.

She is a nonpreference eligible employee of the Postal Service.

That means that she has to pursue her remedies under the collective bargaining arrangement, which gives her a remedy to complain about reprisal.

And it means that the union representative would present that grievance on her behalf.

But it also means that if for some reason she felt that her right of... her obligation of fair representation was not carried through, she could go to court and complain about that.

This Court in a case called Bowen v. United States Postal Service recognized that employees who don't get fair representation can go into court and complain about that.

So she is protected--

Justice Ginsburg: What could she get... what could she get by way of remedy?

And you recognize that this employee is not covered by the Civil Service Act, but does have collective bargaining rights.

Suppose there is a finding of reprisal in that forum.

Mr. Garre: --I believe the remedies are largely co extensive in that the principal remedy that you would get under the Age Act, under the Civil Service Reform Act and I believe under the collective bargaining agreements, although I frankly am not certain about that--

Justice Ginsburg: What about--

Mr. Garre: +,... is corrective... is corrective action, Justice Ginsburg.

There is no right... unlike Title VII, there is no right to compensatory damages under the Age Act for things like pain and suffering or emotional distress; and so in that respect the Age Act is quite different.

What you typically get... you get this under the Civil Service Reform Act and under the Age Act for discrimination claims... is back pay, front pay and corrective action to... to address the discrimination.

The other way in which the Age Act, section 663a, is different than Title VII... and this is actually another thing that makes it inherently incompatible with an anti retaliation right... is that the prohibition in section 663a, the Federal sector provision of the Age Act, is limited to employees who fit within the protected class, employees over the age of 40.

Chief Justice Roberts: Why is that?

I mean, if you have the private... the private sector remedy is not so limited, right?

Mr. Garre: --Right.

Chief Justice Roberts: Well, if we imply or incorporate into the Federal anti discrimination remedy an anti retaliation provision, I assume it would be in the same scope as the private anti... the private antiretaliation provision.

Mr. Garre: Well, then this Court would be directly disregarding the express intent in section 663a, where it says affecting employees or applicants of employees... for employment who are at least 40 years of age.

And further, in section 633--

Justice Souter: Well, Mr. Garre isn't the most that argument gets you that the only individuals who could complain against retaliation are those over 40?

It doesn't get you out... it doesn't get you where you want to go.

It's not retaliation right at all.

Mr. Garre: --I think that's right, but if we're going to talk about anomalies then we have to recognize that that is an anomalous grant of retaliation protection right that only protects people within the protected class with respect to discrimination.

Justice Souter: Well, is it any more anomalous than the fact that the only protection of the age protection is simply for people over 40?

In other words, Congress didn't care whether there are employers in the world who don't like youthful people.

Mr. Garre: If--

Justice Souter: They're just worried about the age.

So if it's an anomaly it's an anomaly across the board in the statute.

Mr. Garre: --I think it's a great deal more anomalous, with respect, Justice Souter.

With both anti retaliation provisions, whistleblower provisions, all the provisions that the government is aware of, including all the ones cited in Petitioners in its brief, protect all employees, all--

Justice Stevens: But the same anomaly applies to the private sector, because section 631a applies to the private sector and 631b to the public sector.

Mr. Garre: --Well, that's not the way the courts have interpreted it, Justice--

Justice Stevens: The language is the same.

They both are limited to prohibitions to people who are over 40.

Mr. Garre: --What the courts have focused on is the 623d of the private sector provisions.

And that's the way--

Justice Stevens: But that's no reason why that trumps... any more reason why that trumps 631a than 631b.

Mr. Garre: --And that's the longstanding interpretation of the EEOC and I don't think there's been any doubt in the courts to date that under the private sector provision you can bring claims for retaliation if you're an employee, and of course that's the way it is under Title VII.

We do think that it would be anomalous to say that employees who complain about age discrimination or who testify about age discrimination in a case are not entitled to protection if there is an anti retaliation right, and if they are under the age of 40; and there is at least two other respects in which--

Justice Stevens: I don't think it says that... the protection doesn't apply.

The word is prohibition... but that--

Mr. Garre: --Well, I think that that's right.

But it's odd to say that this prohibition in 663a, which is clearly limited to people... and I think by--

Justice Stevens: --That's the explanation why the problem doesn't arise in the private sector.

The same explanation would apply to the public sector, if you choose the word prohibition as talking about these people who are protected by the--

Mr. Garre: --That's not... that's not the way the courts have interpreted for more than 20 years under the statute.

Justice Scalia: I though we are talking here a prohibition against taking retaliatory action.

Isn't that a prohibition?

Mr. Garre: It is a prohibition.

Justice Scalia: Yes.

Mr. Garre: Right, and then that would be... their argument is that 663a contains that prohibition, and so therefore it is limited by 631b.

Chief Justice Roberts: Isn't this an unusual retaliation case in that the person allegedly retaliated against also has substantive anti discrimination claims?

And I gather... I think it would take a particularly incompetent lawyer that couldn't phrase retaliation in those cases as underlying discrimination.

Mr. Garre: I wouldn't disagree with that, Mr. Chief Justice.

I'm not sure it's unusual to have retaliation claims piggyback on discrimination claims, but I think you're right.

Justice Alito: Isn't it quite the contrary, Mr. Garre, that most... if you did a statistical analysis of all the cases in which there was a retaliation claim, you doubt that you would find that a very high percentage of those are cases in which the person claiming retaliation is also the person who claimed the underlying discrimination?

Mr. Garre: I wouldn't doubt that.

I think in most cases you do have discrimination claims.

I would say, though, that our research indicated that in the Age Discrimination Act context, at least the private sector context, only 14 percent of the claims involve... cases involve retaliation claims, which is lower than other statutes.

I wanted to point out two respects--

Chief Justice Roberts: Are those, are those mostly witness cases?

Mr. Garre: --I don't know.

Chief Justice Roberts: In other words, it's a witness saying I think so and so was fired because of his age.

Mr. Garre: I don't know the answer to that question.

Justice Ginsburg: Isn't the typical retaliations claim, though, like the one in this case, whether it's under Title VII or the Age Discrimination Act?

That is, I think I have a solid claim of discrimination, but maybe not.

Nevertheless, once I filed that complaint, this unit doesn't like people who complain about sex discrimination, age discrimination.

Therefore, I was retaliated against.

In this case, isn't it the fact that the age discrimination claim, the claim of direct discrimination, was rejected and the question is but nonetheless, was there a retaliation claim?

Mr. Garre: She abandoned that claim at the summary judgment stage.

That's my understanding, Justice Ginsburg, and of course we are here today because she is still pursuing her anti retaliation claim; and certainly if there is an anti retaliation right, we've agreed that you could pursue that independent of whether you complained about the underlying discrimination, but we do think that in at least three respects the prohibition in 663a is incompatible with an anti retaliation right.

One, we think it is limited only to the people within the protected class, people 40 years old.

Two, it's limited to personnel actions, which means if you think about it in the context of this Court's decision in the Burlington Northern case and the Oregon case, it's limited to workplace related things that happened to you, and in Burlington Northern the Court specifically said, in holding that Title VII's anti retaliatory provision was broader than that, was that it would defeat or at least limit the purpose of achieving the purpose of an anti retaliation provision, to limit it workplace related harm.

And then third, of course, the discrimination that's expressed in section 633 is discrimination based on age, not discrimination based on conduct... the conduct of complaining about or exercising your rights under Federal law.

And that, that--

Chief Justice Roberts: That does bring up Justice Alito's point.

I mean, tomorrow you're going to argue the exact opposite, right?

Mr. Garre: --With respect--

Chief Justice Roberts: Or else that distinction between conduct and status would require you to lose.

Mr. Garre: --I think if we have the conduct and status alone, then I think you're in the Jackson box.

But where you've got the three indicia that you have here, which indicate that this provision is incompatible with the typical anti retaliatory provision, and you couple that with other indicia of statutory intent... you have the competing schemes in the statute between private sector where Congress specifically delineated an anti retaliation right, with the fact that it didn't delineate that right in the Federal sector scheme; the evolution of the statute... where you have Congress specifically deciding not to put in Federal employers with private employers, as it did for States having the separate provision; and the distinctions between 663a and 623 of the Act... 623 of the Act is the main private sector prohibition; 663a, the Federal sector provision, doesn't have all the other types of practices that are prohibited by 623.

For example, pensions... pensions are specifically addressed by 623.

Congress didn't address that in 663a of this Act.

It presumably understood that it either would address it through other means if there were other protections out there.

Similarly we think with respect to retaliation.

Congress knew how to express an anti retaliation right.

It did so forcibly in the private sector provisions of the Act; and that language which you find in 623d of the Act is simply completely absent in 663a of the Act.

Justice Alito: Do you think it's plausible that Congress intended to treat the issue of retaliation in the Federal sector differently under the various Federal anti discrimination statutes?

Mr. Garre: I do think that, Justice Alito.

There certainly are several differences between Title VII and the Age Act, and I'm not sure that Congress has explained each difference, but nevertheless they exist and this Court has recognized them, most recently in the Smith v. City of Jackson case, where the Court noted that because of textual differences between acts, there is less protection with disparate impacts of discrimination under the Age Act and Title VII.

It's also the case that Congress has provided for compensatory damages in Title VII and not in the Age Act.

It's also the case that there is a right, a Federal right to a jury trial in Federal sector actions in Title VII but not in the age act.

And this Court has recognized, in Smith v. City of Jackson, that Congress has treated age discrimination as if it's qualitatively different and presumably accorded different protections taking that into account.

So, the notion that this... that the Age Act is different than Title VII or different than other Federal statutes in itself with respect to retaliation in itself is not unusual, and it's especially not unusual when you take into account that there is this back stop protection that's--

Justice Stevens: --Mr. Garre, can I go back to the authority you're pointing out for a moment?

Is it your reading of 631a, the private sector section, that says

"the prohibitions in this chapter shall be limited to individuals who are at least 40 years of age. "

that it's correctly read as the prohibitions in this chapter, except those contained in 623a, shall be limited?

That's the way you read it?

Mr. Garre: --Well, we... no, Justice Stevens.

I think that the textual argument that the courts have embraced with respect to 623d, the anti retaliation provision, is because in 623d the Congress specifically said

"with respect to any employees or applicants. "

It couldn't have meant with respect to only 40, only employees who are over 40.

And, again, that's the way it's been interpreted consistently for decades under the statute.

And we think, though, that giving effect to the language in 633a, you have express prohibition limited to people over 40 years old, and that it is anomaly, and we're not aware of any other situation that--

Justice Stevens: But the effect of giving the effect to the word "any" in this section is in effect to read in this exception.

Mr. Garre: --I think--

Justice Stevens: Do you--

Mr. Garre: I think--

Justice Stevens: --That's the practical effect?

Mr. Garre: --I think that is the practical effect.

This Court has recognized, in Bush... in the Bush v. Lucas case, which dealt with the question of whether to infer a retaliation remedy for constitutional claims by a Federal employee... that Federal employment practices present different questions.

It's an area in which this Court uniquely defers to the policy judgments of Congress, recognizing that Congress has greater resources to police Federal employment, that there are a number of balances that have to be struck between government efficiency and the rights of Federal employees.

Justice Breyer: Am I right now in thinking, just as a matter of practice, where there is retaliation, a claim of retaliation in respect to race discrimination, Federal Government, that the person making that claim can go to the EEOC and then to court?

That's right?

Mr. Garre: That's true--

Justice Breyer: The same thing in respect to age, they can't, and what they have to do is they go through the civil service system or the collective bargaining agreement; is that right?

Mr. Garre: --Well, what would happen, if you had an employee alleging discrimination on the basis of age and retaliation, that would be a so called mixed complaint.

They could bring that to the--

Justice Breyer: No, not what they do if their claim is a retaliation claim.

Mr. Garre: --If it's purely--

Justice Breyer: Yes.

Mr. Garre: --a retaliation claim, they'd have to bring it under the protections afforded by the Civil Service Reform Act.

Justice Breyer: Yes.

And now, do you have... two things: A, do you have any evidence one way or the other that one of these two systems... the civil service plus collective bargaining, on the other hand; or EEOC plus the court, on the other... works better, works the same, works worse?

Mr. Garre: I don't have any evidence.

Justice Breyer: No.

So we don't know.

Mr. Garre: I wasn't--

Justice Breyer: Yes.

Now what reason... okay.

So we don't know.

Mr. Garre: --Well, I guess, if I could just add though, I don't think there's any reason to doubt that certainly Congress had any concerns about whether the system under the Civil Service Reform Act is working properly.

Justice Breyer: But that's drawing something from where you don't know.

Okay.

So that's fair enough.

But is there any... what is the best reason, in your opinion, that Congress would have wanted to make this distinction?

What are the best two or three reasons?

If you were just starting with a blank slate, why would Congress have wanted to send the one to the one route and the other to the other route.

Mr. Garre: My assumption is that Congress felt that the back stop protections that were available for Federal workers at the time it passed the Age Discrimination Act and that were subsequently codified by Congress in the Civil Service Reform Act were appropriate for people who complained about age.

As I mentioned earlier--

Justice Breyer: For the people who complained about race.

Mr. Garre: --I don't know the... Congress didn't tell us the answer to that.

Justice Breyer: But I'm asking you, and if you were sitting there writing it, my... my thought... the conclusion that I would reach from what you're saying is you can't think of any reason why you'd treat them differently.

Mr. Garre: Well, I think the reason would be that Congress viewed age discrimination as materially different than other types of discrimination, and it... either it felt that the risk of retaliation wasn't as great or that the protections... that it didn't need to add protections.

And as I mentioned--

Justice Souter: But why would it have thought that?

In other words, if... I can understand why you say... if you're going to put a rational gloss on it, that must be what they were thinking, but why would they think such a thing?

Mr. Garre: --Your Honor, again, Congress didn't say... I'm not... I think you can make the same argument with respect to why it gave Federal employees a jury trial right under Title VII but not under the Age Act, why it gave Federal employees compensatory damages under Title VII but not under the Age Act.

Justice Ginsburg: Mr. Garre, I just want to make sure I understood something you said before, rather pleadingly.

One is if one could imagine a claim just for reprisal, but you called something a "mixed claim" if you're suing, as she started out to sue, for both.

So if you're suing for both, on your theory you still must split them up?

You cannot bring the reprisal claim together with the discrimination claim?

Mr. Garre: Well, you can bring them together.

What you would do is you would bring a discrimination claim under the Age Act and you'd bring a reprisal claim under the Civil Service Reform Act.

Justice Ginsburg: But there's a different administrative mechanism.

Mr. Garre: You can bring them both together before the Merit Systems Protection Board, if you're--

Justice Ginsburg: Oh, oh, but how about court?

Mr. Garre: --Well, in... what would happen there is you would have your proceeding in the Merit Systems Protection Board, which would decide the discrimination claim and the retaliation claim.

At that point, the employee could decide to go to the EEOC to try to fight on discrimination, or the employee could go to Federal court, and in Federal court he would get a de novo trial on his... on his discrimination claim and a record review--

Justice Ginsburg: But then you... you would be putting everything under the civil service umbrella and nothing under the--

Mr. Garre: --No, I don't think so.

And it's not different.

There are several types of mixed claims that can be brought in this fashion.

Once you get to Federal court on your Age Act discrimination claim, you get a trial de novo on that claim.

You just only get record review of the Civil Service Reform Act claim because that's what Congress deemed appropriate.

Justice Ginsburg: --But if it didn't amount to an adverse action under the Civil Service Act--

Mr. Garre: If it doesn't amount to an adverse action, then you have to go the route that Congress thought appropriate for--

Justice Ginsburg: --And you wouldn't get to court.

Mr. Garre: --Well, you would have... you would... it would be investigated by the Office of Special Counsel.

Justice Ginsburg: Yes, but it would not be within your control.

It would not be up to the--

Mr. Garre: It would not, and that's what Congress deemed appropriate for those types of actions.

Justice Stevens: But it seems to me, Mr. Garre, that, following up on Justice Breyer's question of what's the reason for it, the most striking thing to me is that Congress used precisely the same language in the two sections:

"All personnel actions shall be made free from any discrimination based on race, color. "

and so forth.

That clearly includes retaliation.

But

"all personnel actions shall be made free from discrimination on account of age. "

does not include retaliation seems to me rather anomalous.

Mr. Garre: But there are at least two material textual differences between Title VII and the ADA... and the Age Act.

The first is that the Title... the Title VII--

Justice Stevens: In the key section describing the prohibition, the language is exactly the same.

Mr. Garre: --Well, to understand the meaning of that section you have to understand the meaning of the whole section itself including this express incorporation.

And, secondly--

Justice Scalia: Mr. Garre, are we going to have to decide the Title VII question in this case?

We don't even have the materials in front of us.

They haven't been put in the appendix to the briefs.

And in order to decide this case, we're going to have to decide a Title VII case that hasn't even been presented?

Mr. Garre: --The Court does not have to decide the--

Chief Justice Roberts: Counsel, I would have thought the answer to Justice Breyer's question would be: This is an unusual situation where you have the employer writing the law about what the employees can do, and Congress realized, perhaps unlike the situation in Title VII, everybody over 40 would be covered; and every time somebody over 40 was fired or disciplined or didn't get a raise, they could claim that it was age discrimination; and Congress decided that they as the employer didn't want to face that disturbance, particularly since they have the Civil Service Reform Act already.

Mr. Garre: --I think that that's right, Mr. Chief Justice, and I think this Court recognized similar considerations in the Bush versus Lucas case.

Justice Ginsburg: --Wasn't there... there was something that was said about this... that doesn't apply to congressional employees or White House employees, that they would have a claim of retaliation.

Mr. Garre: Well... and that's because Congress gave them one, and this is--

Justice Ginsburg: So why would Congress say when you... when it's Congress that's doing the reprisal, we're going to give you a suit, but not if some other--

Mr. Garre: --I think, at least with respect to congressional employees, I'm not sure that they would have been protected by the Civil Service Reform Act protections that existed for executive agency employees, but... but look at the statutes... and we cite them at page 36 in the appendix and our brief... in those two statutes, Congress used the same substantive prohibition that is in section 633(a):

"All personnel actions affecting these employees shall be made free from discrimination based on age. "

But they explicitly included a separate anti retaliation provision, which, again... that's a subsequent statute, but that's... again, that's another indication that Congress doesn't think that this kind of general prohibition in section 633(a) covers discrimination.

When it wants to cover retaliation, it passes an express anti retaliation provision Thank you.

Rebuttal of Joseph R. Guerra

Chief Justice Roberts: Thank you, Mr. Garre.

Mr. Guerra, you have four minutes remaining.

Mr. Guerra: I'd like to make three points.

First, I want to emphasize the practical reality that there are thousands of employees who have no remedies under any of the schemes we are talking about: Employees of TVA, employees of the General Accounting Office, these employees of the Transportation Security Administration.

They have no collective bargaining remedies, no CSR remedy, and, according to the Government, no remedy under the ADEA.

Justice Ginsburg, on Title VII, not only has the Government failed to challenge the lower... consistent lower court interpretations.

The EEOC's interpretation of this provision is that it bars retaliation in the Title VII sector... Title VII bans.

And so when you--

Justice Scalia: Excuse me.

Would you clarify your earlier statement: These people have no remedies just for retaliation?

They do have remedies for the age discrimination, but not for retaliation?

Mr. Guerra: --They have no remedies for retaliation under--

Justice Scalia: But they have remedies for age discrimination?

Mr. Guerra: --They do, Justice Scalia, but my point is--

Justice Scalia: Okay.

Mr. Guerra: --Our argument is that it makes no sense to give some people remedies under one scheme and leave some... congressional employees getting full remedial relief, people under the CSRA getting a limited remedial relief, others getting remedies under the collective bargaining rights and thousands of others have no remedies only with respect--

Chief Justice Roberts: Is that because they may not engage in collective bargaining, or because they have chosen not to?

Mr. Guerra: --I believe they are not allowed to.

The entities I mentioned, I believe, are not allowed to.

Justice Scalia: To have a remedy.

Mr. Guerra: Because they simply have none of the remedies the Government has put before--

Justice Breyer: Who... who is such a person?

Mr. Guerra: --An employee of the Transportation Security Administration.

Justice Breyer: Why can't they... why can't they go to like the Merit System Protection Board?

Mr. Guerra: They are excluded from the Civil Service Reform Act.

Justice Breyer: So they are outside the Civil Service, and they don't have unions?

Mr. Guerra: They don't have bargaining rights.

Justice Breyer: They don't have a union?

Mr. Guerra: Correct.

Justice Breyer: So they could be fired for anything.

Mr. Guerra: Well, they have claims for discrimination if they suffer age discrimination directly, but if they complain about age discrimination and then get fired in retaliation, they have nothing.

And... and just--

Chief Justice Roberts: I suppose that's consistent with whatever prohibition it is that precludes them from engaging in collective bargaining.

Mr. Guerra: --But it's not consistent with their rights under Title VII, Mr. Chief Justice, because as the EEOC has... an... is entitled to deference, it has said, for three decades.

Chief Justice Roberts: So you think we do have to decide the Title VII question if you are to prevail.

Mr. Guerra: I do.

Well, I don't know that you necessarily do, but I certainly think it compels the conclusion I am advocating if you reach... if you reach the issue.

Justice Scalia: You should have given us the statute to look at if that's the case.

Mr. Guerra: I recognize that, Justice Scalia, and I apologize.

I would also like to note that there was a suggestion that perhaps Congress didn't care as much about age discrimination.

That's refuted by the House report that accompanied this very statute.

It's quoted at page 23 of the AARP brief where the Congress said age is as great an evil in our society as discrimination based on race and religion.

Whether or not this Court agrees with that assessment as an objective matter, that's the view of the Congress that adopted this statute.

And, as Justice Stevens noted, they have... they adopted the statute by incorporating the language from Title VII, the exact same language where Title VII's remedial scheme makes clear, and the EEOC's consistent interpretation confirms, that that then prohibits retaliation for complaints of race or gender discrimination.

By incorporating that same language in the ADEA's federal sector provision, Congress necessarily gave it the same scope; and, by doing so, eliminated the various anomalies, to put it mildly, that the Government's position leads to.

If the Court has no further questions--

Chief Justice Roberts: Thank you counsel.

The case is submitted.


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