The majority decision, written by Justice Alito, essentially grants protection to those federal workers on the same terms that private workers have long had. In doing so, the Court has now made it clear that retaliation against workers, whether they work for the federal government or for private employers, for complaints of age discrimination is prohibited.
Regardless, for private employers, this case has no real immediate impact because retaliation against their employees on the basis of age has been prohibited under federal law and, in Connecticut, under state law.
What remains unclear — and to which I suspect the commentary about this case will focus on — is whether the court’s logic — by finding retaliation claims can be "read into" claims of discrimination — will apply to other statute or claims.
Justice Thomas and Scalia (who dissented on the other retaliation case decided today, CBOCS West v. Humpries) are joined by Chief Justice Roberts, who writes a lengthy dissent. Justice Roberts takes the majority to task for creating a cause of action not found explicitly in the statute:
The Court today holds that the federal-sector provisions of the Age Discrimination in Employment Act encompasses not only claims of age discrimination—which its language expressly provides—but also claims of retaliation for complaining about age discrimination—which its language does not. Protection against discrimination may include protection against retaliation for complaining about discrimination, but that is not always the case. The separate treatment of each in the private-sector provision of the ADEA makes that clear. In my view, the statutory language and structure, as well as the fact that Congress has always protected federal employees from retaliation through the established civil service process, confirm that Congress did not intend those employees to have a separate judicial remedy for retaliation under the ADEA. I respectfully dissent.