Supreme Court Holds That The Age Discrimination In Employment Act (ADEA) Applies To State And Local Governments Of Any Size

Tuesday, November 13, 2018

A recent decision of the United States Supreme Court establishes that the Age Discrimination in Employment Act’s (ADEA) coverage standard (twenty or more employees) does not apply to state entities (including state political subdivisions).

Siding with the Ninth Circuit on an issue over which the federal appeals courts have divided, Justice Ginsburg, writing for a unanimous Supreme Court, held that "the text of the ADEA’s definitional provision, also its kinship to the FLSA and differences from Title VII, leave scant room for doubt that state and local governments are ‘employer[s]’ covered by the ADEA regardless of their size" (Mount Lemmon Fire District v. Guido, November 6, 2018, Ginsburg R.).

Lower court proceedings. When Mount Lemmon Fire District, a political subdivision in Arizona, laid off its two oldest full-time firefighters at the ages of forty-six and fifty-four, they sued alleging their terminations violated the ADEA. Granting summary judgment in favor of the Fire District, the district court held that the ADEA’s twenty-employee minimum applies to political subdivisions and the Fire District was too small to qualify as an employer under the Act. Reversing, the Ninth Circuit, disagreeing with four of its sister circuits which found the statutory provision at issue ambiguous, held that a political subdivision of a state need not have twenty or more employees in order to qualify as an employer under the ADEA.

Title VII and the ADEA. The Supreme Court observed that the ADEA, like Title VII, initially applied solely to private-sector employers and both statutes defined employers to include "a person engaged in an industry affecting commerce" whose employees met a numerical threshold. While the ADEA was amended two years later to cover state and local governments, rather than adding these entities to the Act’s definition of "person," Congress added them directly to the definition of "employer."

FLSA is better comparator. Also rejected was the Fire District’s contention that the ADEA should be interpreted in line with Title VII, which only applies to state and local governments if they meet a numerosity specification. The better comparator, reasoned the Court, is the FLSA, on which many aspects of the ADEA are based and which, like the ADEA, ranks states and political subdivisions as "employer[s]" regardless of the number of employees they have.

And while the Fire District warned that applying the ADEA to small public entities risks curtailment of vital public services such as fire protection, the Court pointed out that "a majority of States forbid age discrimination by political subdivisions of any size… No untoward service shrinkages have been documented."

Note: In New York, any employers who have at least four employees are subject to the Human Rights law with regard to all protected classes (including age), except for claims of sexual harassment, which all employers are subject to. Accordingly, the Mount Lemmon decision will extend the application of the ADEA to those very small municipal entities with less than four employees.

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