This morning a unanimous Supreme Court ruled
that the provisions of the Age Discrimination in Employment Act apply to all
governmental employers regardless of size.
Mt.
Lemmon Fire District v. Guido, No. 17-587 (11-6-18).
Thus, a fire department with
fewer than 20 employees would be subject to ADEA claims challenging its
reduction in force. The Court found that the amendment of the ADEA
adding government subdivision liability was more similar to the amendment of
the FLSA, which applies to all governmental employers regardless of size, than
to the amendment of Title VII, which only applies to employers – including governments
– with more than 15 employees. This is
consistent with how the EEOC has traditionally interpreted the statutes, but is
contrary to a 1990 Sixth Circuit holding (governing Ohio). The Court’s holding was based on the different
language used to amend the ADEA to include governments because the phrase “the
term also means” typically is interpreted to create an additional, separate
category than to modify or clarify a prior term.
According to the Court’s opinion, the
defendant fire district laid off its two oldest full-time firefighters as part
of a budgetary reduction in force. The
plaintiffs filed suit challenging their termination under the ADEA. The employer moved to dismiss on the grounds
that, with fewer than 20 employee, it was not subject to the ADEA.
When originally enacted, neither Title VII nor
the ADEA covered state or local governmental entities. However, Title VII was amended to include
governmental employers in 1972. The ADEA
and the FLSA were amended two years later to include local and state
governmental entities.
Following the amendment, Title VII defined
employers to include “persons”: “[t]he term ‘employer’ means a person engaged in an industry
affecting commerce who has fifteen or more employees . . . .” 42 U. S. C. §2000e(a)–(b). In turn, “persons” was defined to include
governmental employers: “[t]he term ‘person’ includes one or more individuals,
governments, governmental agencies, [and] political subdivisions,” as well as other specified entities. Thus, all employers must have 15 or more
employees and can include governmental entities.
In contrast, the ADEA defines employers
differently:
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 . . . .
29 U. S. C. §630(b) (emphasis added). Thus,
the Court was faced with deciding whether the ADEA’s failure to define “person”
as it did in Title VII to include governmental entities meant that governmental
entities were not subject to the 20-employee threshold that applied to other
persons. “Does “also means” 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 §630(b)’s first sentence?” In other words, does the “term” refer to “employer”
or to “person” in the preceding sentence?
In further contrast, the FLSA was amended to
define covered employers to include: “any person acting directly or indirectly in the
interest of an employer in relation to an employee and includes a public agency, but does not include any labor
organization (other than when acting as an employer) or anyone acting in the
capacity of officer or agent of such labor organization.” 29 U.S.C. §203(d). Further, “[p]ublic agency” means the Government of the United States; the
government of a State or political subdivision thereof; any agency of the
United States (including the United States Postal Service and Postal Regulatory
Commission), a State, or a political subdivision of a State; or any interstate
governmental agency.” Id. at §203(x).
In interpreting the three
different definitions of “employer,” the Court based its ruling on a number of
factors. “First and foremost, the
ordinary meaning of ‘also means’ is additive rather than clarifying.” “Also” is generally understood to mean “in
addition to” or “besides” or “likewise.”
It can be read to create an additional category of employer. In
other statutes, “also means” is generally interpreted to recognize separate and
additional categories from the earlier categories. The Court
had previously held that the ADEA did not violate state government’s Tenth
Amendment immunity and noted in that it applied to employers with so many
employees and to state and federal governments as though governments were never
subject to the numerical threshold.
Second, reading the statute otherwise
would create a “strange” result by requiring a 20-employee threshold for persons
and government entities, but not for agents, “a discrete category that, beyond
doubt, carries no numerical limitation.”
Why would “agents” be included as a separate category if they were
required to also employ 20 employees?
Third, the Court rejected the
argument that the ADEA should be interpreted to be consistent with Title VII
because the statutes utilized different language to define their coverage. Rather, the Court found the ADEA language to
be more similar to the FLSA, on which some of the ADEA is based. Governmental employers are covered by the
FLSA regardless of size. For that
matter, however, “persons” are also covered by the FLSA regardless of workforce
because the FLSA relies on a different threshold for its coverage (i.e., gross
volume of sales) that is unrelated to the number of individuals employed. Nonetheless, the Court did not seem to
consider that fact.
NOTICE: This summary is designed merely to inform and alert you of
recent legal developments. It does not constitute legal advice and does not
apply to any particular situation because different facts could lead to
different results. Information here can be changed or amended without
notice. Readers should not act upon this information without legal advice. If
you have any questions about anything you have read, you should consult with or
retain an employment attorney.
