Executive Summary: On March 12, 2019, the U.S. Court of Appeals for the Third Circuit clarified in a published opinion that federal employees may bring retaliation claims under Title VII of the Civil Rights Act of 1964 even though the federal-sector provision does not explicitly reference retaliation. Komus v. Secretary of the United States Department of Labor (3d Cir. 2019).
The Third Circuit joined “every circuit to consider the question” in holding that federal employees may bring retaliation claims under Title VII. The court noted that although the language of the federal-sector provisions differs from the private-sector antidiscrimination and antiretaliation provisions, many courts from coast to coast have consistently interpreted the federal-sector provisions to give federal employees the same rights as private employees.
If there were any doubt, the court wrote, it was dispelled by the Supreme Court’s 2008 opinion in Gomez-Perez v. Potter, where the Court addressed whether the federal-sector provision of the Age Discrimination in Employment Act (ADEA) prohibits retaliation by the federal government. Rejecting the government’s narrow reading of the federal-sector provision, the court held that the federal-sector provision of the ADEA confers on employees the right to bring retaliation claims. And because the text of the ADEA and Title VII federal-section provisions is nearly identical, the Third Circuit concluded that Title VII bars retaliation in the federal sector.