Chapter 22 - § 22.5 • ADDITIONAL CONSIDERATIONS FOR GOVERNMENTAL EMPLOYEES

• Jurisdiction: Colorado

§ 22.5 • ADDITIONAL CONSIDERATIONS FOR GOVERNMENTAL EMPLOYEES

The purpose of this section is to advise practitioners of some of the many different avenues a public employment claim might travel — depending upon whether the employment issues arise from employment with a city, county, public agency, the State of Colorado, or the United States. As stated in the introduction to this chapter, the need for thorough research, including the gathering of governing materials and rules for the particular public employer, cannot be overstated.

§ 22.5.1—Federal Employees And Retaliation Claims Under The Age Discrimination In Employment Act (ADEA)

In the spring of 2008, the U.S. Supreme Court held that employees in the federal sector may bring ADEA retaliation claims under 29 U.S.C. § 633a(a) — despite the absence of express language prohibiting retaliation, such as that used in the private sector statutory provision. Gomez-Perez v. Potter, 553 U.S. 474, 486-88 (2008). The majority decision determined that "discrimination based on age" encompassed, by implication, claims of retaliation. In doing so, the Court relied upon two of its earlier decisions: Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969), a § 1982 case; and Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2005), a Title IX case. In Sullivan, a Caucasian belonged to a corporation where homeowners also owned a park and a playground. When Mr. Sullivan rented his home and tried to assign his share to an African-American, the corporation refused to allow the assignment and then expelled Mr. Sullivan. The Court reasoned that precluding retaliation claims under § 1982 "[would have] punished [Mr. Sullivan] for trying to vindicate the rights of minorities" and thereby perpetrated "'racial restrictions on property.'" Gomez-Perez, 553 U.S. at 480 (citing and quoting Sullivan, 396 U.S. at 237). In Jackson, a public school teacher sued the school board, alleging he had been retaliated against after complaining about sex discrimination. The Court reasoned that Title IX banned retaliation because retaliation is another form of intentional discrimination on the basis of sex. Id. (citing Jackson, 544 U.S. at 176-77).

In Gomez-Potter, the Court found that the purposes of the underlying statutes in Sullivan and Jackson, and the reasoning in those decisions, was sufficiently similar under stare decisis to allow federal employees to bring retaliation claims under the ADEA:

Following the reasoning of Sullivan and Jackso

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