Legal Alerts Nov 12, 2018

Public Employers Covered by the ADEA of 1967

U.S. Supreme Court Holds that Number of Employees Doesn't Set Local Government Agencies Apart Under Anti-Discrimination Law

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Federal law prohibiting age discrimination in employment applies to state and local governments, regardless of their size, the U.S. Supreme Court said last week. In the first opinion of the term, the unanimous decision Tuesday written by Justice Ruth Bader Ginsburg focused on the Age Discrimination in Employment Act of 1967. The Court settled conflicting, lower court opinions on whether or not public employers are subject to the numerical threshold of 20 employees, as private employers are, to be subject to the ADEA.
 
The case of Mount Lemmon Fire District v. Guido began in 2009 when the Mount Lemmon Fire District laid off captains John Guido and Dennis Rankin — the two oldest firefighters in the Department at the time. The firefighters filed a claim with the Equal Employment Opportunity Commission, citing the ADEA.
 
The Fire District, in turn, argued that Guido, 46 at the time of his layoff, and Rankin, 54, were let go because they did not participate in volunteer wildland assignments, not because of their age. The District also argued that the ADEA did not apply to it because it was too small to qualify as an “employer” under the ADEA. At the time of Guido and Rankin’s layoffs, the District had 13 employees, which was well below the 20-worker threshold for private businesses — exempting them from the law.
 
The ADEA defines “employer” as “a person engaged in an industry affecting commerce who has 20 or more employees for each working day.” It goes on to say that employer “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.” Lower courts disagreed about whether the phrase “also means” swept into the statute any government unit, or only those with 20 or more employees.
 
The Supreme Court held that the phrase “also means” adds a separate category of employers under ADEA’s purview. The ordinary meaning of the phrase “also means” as applied to state and political subdivisions is additive, not clarifying. The definition of “employer” and the phrase “also means” in the second sentence combine to establish two separate categories of employers covered by the ADEA: Those engaged in an industry effecting commerce with 20 or more employees and states or political subdivisions with no numerical requirement.
 
For more information about this decision and how it may impact your agency, contact the author of this Legal Alert listed at the right in the firm’s Labor & Employment practice group or your BB&K attorney.
 
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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

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