U.S. Supreme Court Holds All Public Employers Are Covered By The ADEA


By: Brent Bean

On November 6, 2018, the U.S. Supreme Court issued its long-anticipated opinion in Mount Lemmon Fire Dist. v. Guido, 586 U.S. __ (2018), which FMG previously discussed here.  At issue was whether the Age Discrimination in Employment Act (“ADEA”) applies to all state and political subdivisions, regardless of the size of their workforce.
The ADEA generally prohibits employers from discriminating in their employment decisions against employees over the age of forty.  29 U.S.C. § 621-634.  The ADEA, however, only applies to private sector employers with more than twenty employees.  To that end, ADEA defines “employer” as:

a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year. . . .  The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State, and any interstate agency, but such term does not include the United States.  29 U.S.C. 630(b) (emphases added).

The Supreme Court took this case to resolve the circuit split among the Sixth, Seventh, Eighth, and Tenth Circuits on the one hand, all of which had held that the ADEA’s twenty-employee threshold applies to a State or political subdivision, and the Ninth Circuit, on the other hand, which ruled that the ADEA’s twenty-employee minimum does not apply to those employers.
Writing for a unanimous Court, Justice Ginsburg held that the plain language of the statute, “also means,” is additive, rather than clarifying.  As such, there is no twenty-employee threshold for a State or political subdivisions.  The Court rejected the fire district’s argument that the ADEA should be analogized to Title VII, where numerical limits apply to private and public sector employers with equal force.  Instead, Justice Ginsburg wrote, the ADEA, amended in 1974 to cover state and local governments, was more akin to the FLSA, amended that same year, which has no workforce limit.
Accordingly, the ADEA applies with greater scope to cover all state and political subdivisions without limitation to the size of their workforce.  We recommend that public sector employers, especially those which have smaller workforces, revisit their handbooks and training on complying with, and avoiding litigation under, the ADEA.
If you have any questions or would like more information, please contact Brent Bean at