Daily Labor Report®

Justices Mull Age Bias Law’s Hold on Small Government Employers (1)

Oct. 1, 2018, 4:51 PMUpdated: Oct. 1, 2018, 9:36 PM

Federal employment law prohibits even the smallest state and local government entities from discriminating against a worker based on age, the lawyer for a pair of Arizona firefighters told the U.S. Supreme Court Oct. 1.

At issue is whether the federal Age Discrimination in Employment Act applies to Mount Lemmon Fire District, a local “special district” in southern Arizona’s Sky Islands, and similarly small political subdivisions.

The district, which provides fire, EMS, and related services to three communities in Coronado National Forest in the Santa Catalina Mountains, has fewer than 20 employees. It argued to the justices that the ADEA only covers state and local governments with 20 or more workers.

A Supreme Court decision in the case stands to affect the job protections of tens of thousands of state and local government workers nationwide—and potentially the fate of some small political subdivisions—as there are more than 38,000 special districts like Mount Lemmon scattered throughout the country, according to the 2012 Census.

Five federal appeals courts have addressed the issue, with four—the Sixth, Seventh, Eighth, and Tenth—holding that the ADEA applies to special districts and similar entities only if they have 20 or more employees. The fifth—the U.S. Court of Appeals for the Ninth Circuit in the case now before the high court—reached the opposite conclusion.

To answer the question of what entities are covered, the justices will have to parse the meaning of a 1974 amendment to the ADEA that for the first time brought state and local governments under the federal age bias law’s umbrella.

Their questions for the lawyers for the firefighters, the fire district, and the U.S government focused on whether the language in the law could only mean that all state political subdivisions are covered by the ADEA, as the Ninth Circuit found below, or whether the text of the law is unclear, requiring the court to consider other sources as well, such as the ADEA’s underlying history and purpose.

The high court offered no clear signals on where it might ultimately come out in the case.

Laid Off During Fiscal Crisis

Counsel for firefighters Capt. John Guido and Capt. Dennis Rankin told the justices that the ADEA applies to all state and local government employers, regardless of size. The two men lost their jobs in a 2009 layoff the fire district says was made necessary by a fiscal crisis.

Guido, then 46, and Rankin, 54, were the district’s two oldest full-time firefighters at the time and the only two laid off. Guido was included in the reduction in force even though his additional certification as a paramedic should have afforded him extra protection from the layoff. The pair ultimately had their jobs filled by younger firefighters.

While many employees of small political subdivisions are shielded from job bias based on age under state and/or local laws, not all of them are, Stanford Law’s Jeffrey L. Fisher told the justices. Guido and Rankin are backed in the case by the U.S government as well as AARP and the National Employment Lawyers Association.

But Congress didn’t intend to impose extra burdens on small state and local governments that it didn’t impose on small private businesses, E. Joshua Rosenkranz told the justices.

Title VII of the 1964 Civil Rights Act, another anti-discrimination law like the ADEA, doesn’t apply to private-sector employers unless they have more than 20 employees, he said. And because Title VII doesn’t apply to public-sector employers unless they have more than 20 employees, the ADEA should be read the same way, he said. Rosenkranz, who represents the fire district, is a partner with Orrick, Herrington & Sutcliffe LLP in New York and heads his firm’s Supreme Court & Appellate Litigation practice.

‘Impossible to Predict’

“It’s impossible to predict” how the justices will rule based on the questions that were asked, AARP Foundation’s Daniel B. Kohrman told Bloomberg Law Oct. 1. Both sides faced tough scrutiny from the justices, he said.

It was certainly “a daunting session” for counsel for Mount Lemmon, and Guido and Rankin have the more straightforward argument, he said. But some justices raised issues that may signal support for the fire district, Kohrman said.

Mount Lemmon has the backing of several groups—headed by the National Conference of State Legislatures—that advocate for broader protections for government officials in serving the public. Their attorney agreed with Kohrman that Guido and Rankin have the more direct argument.

That argument, however, may be asking the justices to “leave too many questions for another day” about the potential consequences of their reading of the ADEA provision at issue, Collin O’Connor Udell said Oct. 1. These include whether that reading of the ADEA may open up the potential for individual employees to be liable to other workers under the law.

Justice Samuel Alito “seemed to be the most receptive” member of the court to the fire district’s concerns, Udell said. She is a partner with Jackson Lewis P.C. in Hartford, Conn.

The Ninth Circuit’s view treats age bias different from race, sex, and the types of bias outlawed by Title VII and the Americans with Disabilities Act, Rosenkranz told the court. That’s “unfathomable,” as is its holding that small public employers, but not small businesses, fall under the ADEA’s coverage, he said.

But Fisher told Alito that could very well have been the intent of Congress, as the ADEA is a “hybrid” of Title VII and the federal Fair Labor Standards Act. It’s part civil rights law and part labor law, he said.

It’s more appropriate to look to the FLSA, rather than Title VII, in determining the ADEA’s application to public employers with fewer than 20 workers, he said. The FLSA has never been interpreted as containing a minimum-employee threshold for coverage, Fisher said.

The case is Mount Lemmon Fire Dist. v. Guido, U.S., No. 17-587, oral argument 10/1/18.

(Updated with additional reporting)

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bloomberglaw.com

To contact the editor responsible for this story: Terence Hyland at thyland@bloomberglaw.com

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