Employment: Age Discrimination – Public Employers

The Age Discrimination in Employment Act (“ADEA” ) applies to all public employers, including those with fewer than 20 employees, a unanimous Supreme Court held in its first merits decision of the October 2018 term. Thus, the 20-employee minimum that applies to private employers does not apply to a state or its subdivisions. The 8-0 decision, Mount Lemmon Fire Dist. V. Buido, _ S. Ct._, 202 L. Ed. 2d 262 (2018), resolves a split of authority between the Ninth Circuit on one hand and the Sixth, Seventh, Eighth, and Tenth Circuits on the other.

The case arose when a fire district in Arizona, faced with a budget shortfall, laid off its two oldest full-time firefighters – Fire Captains who were aged 46 and 54. Not surprisingly, the firefighters brought suit against the fire district for age discrimination. In seeking to dismiss the suit, the fire district argued that it was too small to qualify as an “employer” under the ADEA. The district court agreed, granting summary judgment for the fire district, but the Ninth Circuit reversed, holding that the 20-employee minimum that applies to private employers does not apply to a state or its subdivisions.

In an opinion by Justice Ginsburg, the Supreme Court first noted that the ADEA’s controlling definitional provision (29 U.S.C. § 630(b )) reads in relevant part: “The term  ’employer’ means a person engaged in an industry affecting commerce who has twenty or more employees …. The term also means (l) any agent of such a person, and (2 ) a State or .political subdivision of a State …. ” (Emphasis added.) The Court explained that initially both Title VII of the Civil Rights Act of 1964 and the ADEA applied solely to private sector employers. In 1974, however, Congress amended the ADEA to cover state and local governments. A 1972 amendment to Title VII had added states and their subdivisions to the definition of “person[ s ],” specifying that such entities are engaged in an industry affecting commerce. The Title VII amendment thus subjected states and their subdivisions to liability only if they employed a threshold number of workers (currently 1sr By contrast, the 1974 ADEA amendment added state and local governments directly to the definition of “employer.” The same 1974 enactment also amended the Fair Labor Standards Act (“FLSA”), on which many aspects of the ADEA were based, to reach all government employers regardless of their size.

The Court then held that the ADEA definition’s two-sentence delineation, together with the phrase “also means” at the start of the second sentence, combined to establish two separate categories: (1) persons engaged in an industry affecting commerce with 20 or more employees; and (2) states or political subdivisions with no attendant limitation on number of employees. First and foremost, the ordinary meaning of “also means” is additive rather than clarifying. The phrase occurs dozens of times throughout the United States Code, typically carrying an additive meaning. Further, the second sentence of the ADEA’s definition paired states and their political subdivisions with agents, a discrete category carrying no numerical limitation.
The Court acknowledged that reading the ADEA definition as written, that is, to apply to state and political subdivisions regardless of size, would give the ADEA a broader reach than that of Title VII, but believed that the disparity was a consequence of the different language Congress chose to employ. The better comparator for the ADEA was the FLSA, which also ranked states and political subdivisions as “employers” regardless of the number of employees.

Concerning the fire district’s argument that ADEA liability might endanger the operations of small public employers, the Court stated that “[n]o untoward service shrinkages have been documented,” even though the EEOC has for 30 years interpreted the ADEA to cover political subdivisions regardless of size, and a majority of states impose age discrimination proscriptions on political subdivisions with no numerical threshold.
The Court affirmed the Ninth Circuit’s decisions (859 F.3d 1168 (9th Cir. 2017)) and abrogated the contrary authority from other circuits, including Kelly v. Wauconda Park Dist., 801 F.2d 269 (7th Cir. 1986), Cinkv. Grant County, 635 F. App’x470 (10th Cir. 2015), Palmer v. Ark. Council on Econ. Educ., 154 F.3d 892 (8th Cir. 1998), and EEOC v. Monclova Twp., 920 F.2d 360 (6th Cir. 1990). These courts had interpreted the 1974 ADEA amendment consistently with the 1972 Title VII amendment despite the different language employed. The Seventh Circuit, for example, believed that the legislative histories of both the ADEA and the Title VII amendments indicated that Congress’s main purpose was to put public and private employers on the same footing. Kelly, 801 F.2d at 271.

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