Last year, Arizona found itself at the center of the first opinion of the new U.S. Supreme Court term. The opinion, authored by the Court’s oldest member, Associate Justice Ruth Bader Ginsberg (86), took on the issue of whether state and local governments with fewer than 20 employees can be sued for age discrimination. With all the talk of division among the justices, the Court’s decision was unanimous (8-0) that state and local governments, regardless of size, can be sued for age discrimination. Associate Justice Brett Kavanaugh took no part in the consideration of this case since it was argued before his Senate confirmation. Thanks to this decision, Baby Boomers working for small public employers can let out a huge sigh of relief.
Source: Jaromir Chalabala / shutterstock
Lower Court Proceedings
When the Mount Lemmon Fire District, a political subdivision of the state of Arizona, was faced with a budget shortfall, it laid off its two oldest firefighters, John Guido (then 46) and Dennis Rankin (then 54). The firefighters sued, alleging the fire district violated the Age Discrimination in Employment Act of 1967 (ADEA) when it terminated their employment.
The fire district asked the U.S. District Court for the District of Arizona to enter judgment in its favor, arguing that it was too small to qualify as an employer under the ADEA. The Act defines employers covered by the prohibition on age discrimination to be those with 20 or more employees in each of 20 or more calendar weeks in the current or preceding year. The fire district, which covers a 12.5-square-mile Ponderosa pine forest, one of southern Arizona’s famed Sky Islands, in the Santa Catalina Mountains northeast of Tucson, did not employ the requisite 20. The district court agreed with the count and the fire district’s interpretation of the ADEA definition and entered judgment against the firefighters.
The U.S. 9th Circuit Court of Appeals, which hears federal appeals from Arizona, resurrected the firefighters’ claims, disagreeing with the district court and the fire district. Specifically, the 9th Circuit held that a political subdivision of a state does not need to have 20 or more employees to be an employer covered by the ADEA, pointing to a separate sentence in the statutory definition that brought such government entities within the definition of “employer.” In typical 9th Circuit fashion, the appellate court disagreed with four of its sister circuits, which had found the specific statutory provision within the ADEA ambiguous. This circuit split primed the issue for U.S. Supreme Court intervention.
Resolving the Circuit Split
Because lower courts across the country have disagreed about whether the ADEA applies to any government unit regardless of size, the Supreme Court decided to hear and finally resolve the dispute. The Mount Lemmon case settles the issue with a ruling that the ADEA applies to all states and their political subdivisions regardless of size. The Court specifically held that “the text of the ADEA’s definitional provision, also its kinship to the [Fair Labor Standards Act (FLSA)] and differences from Title VII [of the Civil Rights Act of 1964], leave scant room for doubt that the state and local governments are ‘employer[s]’ covered by the ADEA regardless of their size.”
In an opinion discussing “qualifiers” and statutory construction that only (some) lawyers find interesting, the Court focused on the ADEA’s plain language. It first noted that the original 1967 law applied only to private employers with at least 20 workers. Then it acknowledged that a 1974 amendment added political subdivisions to the definition of “employer.” But that addition did not include the “[20] or more employees” qualifier when referencing states and their political subdivisions. Therefore, the Court rejected the fire district’s argument that the qualifier applied to both private and public employers alike.
The Court’s decision means these men can continue their lawsuit. It also opens up the federal courts to other public-sector plaintiffs alleging age discrimination in similar situations.
Takeaway
Some states already have antidiscrimination laws that apply to employers (private and public alike), regardless of size and some do not. For example, the Arizona Civil Rights Act prohibits age discrimination and covers both public and private employers, but only those with 15 or more employees. Thus, the Court’s ruling will have an impact on smaller political subdivisions like the Mount Lemmon Fire District.
Local government entities should ensure they have properly implemented policies and maintain practices that comply with the ADEA. This ruling makes clear that the Act applies to them.
Jodi R. Bohr is a Shareholder at Gallagher & Kennedy, P.A., in Phoenix, Arizona. She is also an Editor for the Arizona Employment Law Letter and may be reached at jodi.bohr@gknet.com.