11.7.18

On November 6, the U.S. Supreme Court handed down its opinion in Mount Lemmon Fire District v. Guido, holding 8-0 that the Age Discrimination in Employment Act of 1967 applies to all state and local governmental employers, regardless of the number of employees. Justice Ruth Bader Ginsburg wrote the opinion. Justice Brett Kavanaugh took no part in the consideration or decision of the case.

According to the Court, Section 630(b) of the ADEA has two separate categories of “employer.” “Employer” means (1)  “a person engaged in an industry affecting commerce who has twenty or more employees . . .,” and (2) “also means . . . a State or political subdivision of a State ....” The Court noted that the language “also means” should be read as connoting “in addition to.” Accordingly, the Court ruled that the 20-employee minimum applicable to private sector employers did not apply to state or local governmental employers.

The employer unsuccessfully argued that the ADEA should be interpreted in accordance with Title VII of the Civil Rights Act of 1964, which applies to states and political subdivisions with 15 or more employees. In rejecting the employer’s argument, the Court noted that, when enacted, neither Title VII nor the ADEA applied to state or local governments at all. Congress amended Title VII in 1972, and the ADEA in 1974, to apply to state and local governments, but in doing so, had used different language.

Notably, the 1972 amendments to Title VII did not change the definition of the term “employer” – “a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year . . ..” Nevertheless, the amendments changed the definitions of “person,” and “industry affecting commerce.” Specifically, Congress changed the Title VII definition of  “person” to include “governments, governmental agencies, [and] political subdivisions . . ..”  Congress changed the definition of “industry affecting commerce” to “include any governmental industry, business, or activity.” As a result of these two definitional changes, since 1972, all governmental entities are Title VII “employers” if they have 15 or more employees.

By contrast, the 1974 amendments to the ADEA did not alter the existing definitions of “person” or “industry affecting commerce” as set forth in that statute. Instead, Congress changed the ADEA definition of “employer” as described above. Thus, the Supreme Court found that the amendments to Title VII and the ADEA were significantly different, and that the ADEA – unlike Title VII – has no minimum-employee threshold if the employer is a state or local governmental entity.

The impact of the Court’s decision in Mount Lemmon is expected to be considerable, as state and local governmental employers with fewer than 20 employees are now subject to suit under the ADEA. (Public employers with 20 or more employees were already covered by the ADEA before the Court’s decision.) Although the Eleventh Amendment to the U.S. Constitution will shield state employers of all sizes from private ADEA actions, state employers with fewer than 20 employees will be subject to age discrimination lawsuits filed by governmental entities such as the Equal Employment Opportunity Commission. Moreover, because Eleventh Amendment immunity does not apply to local governmental entities such as municipalities, counties, and school boards, the Mount Lemmon decision exposes those local governmental employers with fewer than 20 employees to suit under the ADEA from private and governmental plaintiffs alike.

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