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What “Also Means” Means – the U.S. Supreme Court Rules the ADEA Applies to Local Governments Regardless of Number of Employees

As Published in the December, 2018 Issue of the PELRAS Newsletter

Published on: Sat 1st Dec, 2018 By: Paul N. Lalley

Managers from municipalities with a small number of employees are probably aware from prior PELRAS presentations that some federal statutes may not fully apply to them. For example, Title VII of the Civil Rights Act of 1964 applies only to local governments that employ at least 15 people, and although the Family and Medical Leave Act’s notice requirements apply to all local governments, actual FMLA leave rights only apply when a municipality has at least 50 employees. But what about the Age Discrimination in Employment Act of 1967, which applies to private employers that have at least 20 employees?

In a decision issued on November 6, 2018, Mount Lemmon Fire Dist. v. Guido (No. 17-587), the United States Supreme Court ruled that the ADEA applies to local governments regardless of the number of employees. The plaintiffs in Mount Lemmon Fire were two firefighters who were over the age of 40 and were laid off due to budgetary issues. The question presented to the Supreme Court was straightforward: does a local governmental entity need to have at least 20 employees to be subject to the ADEA? The ADEA defines “employer” to mean a “person engaged in an industry affecting commerce who has twenty or more employees…. The term also means (1) any agent of such person, and (2) a State or political subdivision of a State….”

The Court looked to legislative history of the ADEA. When Title VII, the ADEA, and the Fair Labor Standards Act were originally enacted, none applied to local governments. Congress changed that by later amendments, first by amending Title VII in 1972, and then by amending the ADEA and the FLSA in 1974, so that those laws applied to local governments. But the language used in these amendments was different. When Congress amended Title VII, it amended the definition of “persons” subject to the law to include state and local governments, but by doing so, it simply incorporated the 15-employee threshold that applies to private employers.

By comparison, the 1974 FLSA amendments made all state and local governments subject to the FLSA, regardless of the number of employees. In interpreting the ADEA, the Court concluded that Congress’ intention in amending the definition of “employer” was to follow the model of the FLSA, rather than Title VII. The Court focused on the use of the phrase “also means” in the ADEA’s amended definition of “employer” as creating a separate category of “employer,” not simply adding a subcategory where the 20-employee threshold applies. The Court noted that its ruling that the ADEA applies to local governments regardless of the number of employees was consistent with how the EEOC had interpreted the ADEA for 30 years. In doing so, however, the Court overruled a number of federal circuit courts of appeals that had interpreted the ADEA as applying to local governments only if they had at least 20 employees.

It is, of course, always recommended that you consult with your labor and employment attorneys when you have a question about whether a particular federal or state law applies to your municipality, so that you may get the most up-to-date guidance.