In the first opinion of its new term, the United States Supreme Court unanimously held that the federal Age Discrimination in Employment Act (the “ADEA”) applies to all public employers, regardless of the number of employees that the entity has. The ruling in Mount Lemmon Fire District v. Guido affirmed the Ninth Circuit Court of Appeals, which was alone among the circuits in holding that the ADEA applies to small as well as larger public employers.
The fire district involved in the case is a political subdivision in Arizona, and in order to resolve a budget shortfall, laid off its two oldest full-time firefighters (aged 46 and 54). The firefighters sued the fire district and alleged that their termination violated the ADEA. The fire district moved to dismiss the suit on the ground that the district was too small to qualify as an “employer,” as defined by the ADEA. The ADEA’s definitional provision, which can be found at 29 U.S.C. § 630(b), states as follows:
The term “employer” means a person engaged in an industry affecting commerce who has twenty or more employees . . . . The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State . . . .
The Equal Employment Opportunity Commission (the “EEOC”) found reasonable cause that the fire district had discriminated against the fire fighters. The district court reversed and—following the at least four other circuit courts, including the Seventh Circuit—held that the 20-employee threshold applied to state and local public employers. The Ninth Circuit reversed the district court.
In an opinion written by Justice Ruth Bader Ginsburg, the Court sided 8-0 with the Ninth Circuit and the fire fighters (Justice Kavanaugh took no part). The Court briefly recounted that the ADEA originally imposed liability on private employers only and even then only when those entities “met a numerical threshold” for employees. Slip op. at 2. When Congress amended the ADEA to cover state and local governments, it added them to the definition of employer at the end of the definitional provision. Thus, the Court focused on the parties’ dispute over the phrase “also means”: Does it “add new categories to the definition of ‘employer,’ or does it merely clarify that States and their political subdivisions are a type of ‘person’ included” in the first sentence? Id.
The Court concluded the former interpretation—that in adding “also means,” Congress added new categories of employers to the ADEA—was the right one. “First and foremost, the ordinary meaning of ‘also means’ is additive rather than clarifying.” Id. at 4. The Court also noted that the phrase appears “dozens of times throughout the U.S. Code, typically carrying an additive meaning.” Id. at 4–5. Finally, the Court rejected the fire district’s warning that applying the ADEA to small public employers “risks curtailment of vital public services such as fire protection,” as the EEOC has consistently interpreted the ADEA as covering all public employers regardless of size and many state age discrimination statutes do the same, and “[n]o untoward service shrinkages have been documented.” Id. at 6.
Although it is a short and unanimous opinion, Mount Lemmon is notable in that the Court sided with employees and the oft-maligned Ninth Circuit. And, for a more local angle, the Supreme Court has implicitly overruled the Seventh Circuit’s decision in Kelly v. Wauconda Park District, 801 F.2d 269 (7th Cir. 1986), which held that the ADEA covered state and local governments only if they have at least 20 employees. Small Wisconsin municipalities and other political subdivisions should take note of their vulnerability to age discrimination claims filed with the EEOC. Of course, similar claims filed under Wisconsin law do not face any numerosity requirement for any kind of employer. See Wis. Stat. §§ 111.32(6), .321–.322.