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U.S. Supreme Court to Decide Whether Age Discrimination Statute Applies to Small Public Employers

9/27/18

By: Brent Bean & Koty Newman

The U.S. Supreme Court recently granted certiorari in Mount Lemmon Fire Dist. v. Guido, 200 L. Ed. 313, (U.S., Feb. 26, 2018), to determine whether the Age Discrimination in Employment Act (“ADEA”) applies to state political subdivisions, regardless of size.
Generally, the ADEA prohibits employers from discriminating against individuals based on the individual’s age if that individual is at least forty years of age.  29 U.S.C. § 621-634.  But who qualifies as an employer for the purposes of the ADEA?  The 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).

The Sixth, Seventh, Eighth, and Tenth Circuits have all held that the ADEA’s twenty-employee threshold applies to state political subdivisions.  However, the Ninth Circuit recently disagreed and ruled that the ADEA’s twenty-employee minimum does not apply to state political subdivisions, reasoning that the statute can be read to include all state and political subdivisions without the cap.
In the case before the Ninth Circuit, John Guido and Dennis Rankin were hired in 2000 by the Mount Lemmon Fire District.  They were the two oldest full-time employees of the Fire District when they were both terminated on the same day, June 15, 2009.  The district court dismissed their case, agreeing with the Sixth, Seventh, Eight, and Tenth Circuits that the ADEA twenty-employee requirement applies to state political subdivisions.  However, on appeal, the Ninth Circuit reversed, accepting the argument that the word “also” in the statute supports the proposition that there are three distinct groups of employers: (1) private employers who employ twenty or more employees; (2) their agents; and (3) state public employers regardless of how many people they employ.
Despite these arguments, the Fire District has a “powerful rebuttal,”—as the Ninth Circuit recognized but ultimately dismissed—because it has the weight of four other circuits on its side, who have all declared 29 U.S.C. § 630(b) to be ambiguous.  The Fire District asserts that the “also means” sentence in § 630(b) “clarifies what the first includes,” and therefore does not create a separate distinct category of public employer that is not subject to the ADEA’s twenty-employee threshold.
The Supreme Court has scheduled argument for October 1, 2018.  Thus, it will not be too long before the legal world can start reading the tea leaves regarding the Justices’ reactions to the parties’ arguments.
If you have any questions or would like more information please contact Brent Bean bbean@fmglaw.com or Koty Newman at mnewman@fmglaw.com.