The Lawletter Vol 44 No 5
The Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621-634, is federal legislation intended "to prohibit arbitrary age discrimination in employment." 29 U.S.C. § 621(b). In relevant part, the ADEA provides that "[i]t shall be unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." Id. § 623(a)(1).
A threshold determination for implicating the ADEA is whether a potential defendant is an "employer" within the meaning of the ADEA. The ADEA defines "employer," in part, as "a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year." Id. § 630(b). One notable qualifier for "employer" is having a minimum of 20 employees. However, in a separate sentence of the ADEA's definition of "employer," the ADEA goes on to state as follows:
The term 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, and any interstate agency, but such term does not include the United States, or a corporation wholly owned by the Government of the United States.
Id. Notably absent from this portion of the definition is the requirement of having at least 20 employees. This raises the question of whether the numerosity requirement in the first part of the statute's definition of employer applies to the second part of the statute's definition regarding governmental employers.
Most courts to have addressed the issue determined that the numerosity requirement of § 630(b) applies to governmental employers. See Kelly v. Wauconda Park Dist., 801 F.2d 269 (7th Cir. 1986); Cink v. Grant County, 635 F. App'x 470 (10th Cir. 2015); Palmer v. Ark. Council on Econ. Educ., 154 F.3d 892 (8th Cir. 1998); EEOC v. Monclova, 920 F.2d 360 (6th Cir. 1990). However, the U.S. Court of Appeals for the Ninth Circuit took the opposition position, holding that the ADEA applies to governmental employers regardless of the number of employees. See Guido v. Mount Lemmon Fire Dist., 859 F.3d 1168 (9th Cir. 2017).
The governmental defendant in Guido sought review in the U.S. Supreme Court, which granted certiorari to resolve the conflict. See Mt. Lemmon Fire Dist. v. Guido, 139 S. Ct. 22, 25 (2018). Rejecting what had been the majority view on the question, the Supreme Court agreed with the Ninth Circuit and expressly held that the ADEA's 20-employee minimum requirement for employers does not apply to state entities, including political subdivisions.
Specifically, the Supreme Court held that the ADEA's 20-employee minimum requirement for employers applied only to "a person engaged in an industry affecting commerce" and not to "a State or political subdivision of a State," reasoning that the expression "also means," combined with the provision's two-sentence delineation, established additional employer categories with no numerical limitation with regard to the number of employees. The ordinary meaning of the phrase "also means" connotes additive language, not clarification, and that is its typical meaning throughout the U.S. Code. See id. at 25-26. Furthermore, the provision pairs "political subdivisions" with the category of "agents," which clearly "carries no numerical limitation." See id. at 26. Thus, to apply the 20-employee minimum to one but not to the other would do injustice to the text, as the judiciary is not at liberty to add words that Congress did not deem fit to include. See id. Moreover, the language at issue was added in the same 1974 enactment that amended the Fair Labor Standards Act (on which parts of the ADEA had been modeled) to reach all government employers, regardless of size. See id. at 27.