What is a Government Employer Anyway? The Ninth Circuit Splits with Decades of Precedent and Holds that the ADEA's 20-Employee Requirement Does Not Apply to Public Employers

The Age Discrimination in Employment Act (ADEA) prohibits employers from discriminating against employees because of their age.  But applying the ADEA's definition of "employer" is not as simple as it sounds.  Recently complicating that definition is disagreement among the circuit courts regarding the meaning of the ADEA's language.  In June 2017, the Ninth Circuit Court of Appeals diverged from other circuits and held in Guido v. Mount Lemmon Fire Dist., 859 F.3d 1168 (9th Cir. 2017), that the 20-employee requirement for an entity to satisfy the definition of an employer under the ADEA does not apply to public employers.

John Guido and Dennis Rankin were employed at the Mount Lemmon Fire District, a political subdivision of Arizona, as full-time firefighter Captains.  Mr. Guido and Mr. Rankin brought suit alleging age discrimination after they were terminated.  The district court granted summary judgment in favor of the Mount Lemmon Fire District and held that the fire district did not meet the definition of an employer under the ADEA.  Mr. Guido and Mr. Rankin appealed, arguing that the ADEA's requirement that an employer have 20 or more employees was not applicable to political subdivisions of a state based on the way the statute is worded.

Under the ADEA, an employer is 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" or "[t]he term also means…a State or political subdivision of a State and any agency or instrumentality of a State or political subdivision of a State."  29 U.S.C. § 630(b).  "Person" is defined as "one or more individuals, partnerships, associations, labor organizations, corporations, business trusts, legal representatives, or any organized groups of persons."  29 U.S.C. § 630(a).

Mr. Guido and Mr. Rankin asserted that the plain language of the statute creates distinct categories of employers:  (1) a "person" engaged in an industry affecting commerce, the term also means (2) any agent of such a "person", and (3) a state or political subdivision of a state.  The crux of this argument is the word "also."  Mr. Guido and Mr. Rankin argued that Congress's inclusion of the term "also" after the first definition of "employer" demonstrates that the language of the first category does not apply to the second and third categories.  The court agreed, adding that "[t]he word 'also' is a term of enhancement; it means 'in addition; besides' and 'likewise; too.' "  To illustrate, the court set forth an example using password parameters:

For example, imagine someone saying:  "The password can be an even number.  The password can also be an odd number greater than one hundred."  These are two separate definitions of what an acceptable password can be, and the clarifying language does not apply to both definitions.  If the sentences are reversed, the "greater than one hundred" limiting language would still not carry over to the second sentence discussing even numbers.  See Holloway v. Water Works & Sewer Bd. Of Town of Vernon, 24 F.Supp.3d 1112, 1117 (N.D. Ala. 2014).  This becomes more obvious when it would be illogical to carry clarifying language over.  If a statute said "The word bank means `the rising ground bordering a lake, river, or sea' and the word also means `a place where something is held available,'" the second definition would not be describing a place that must border a lake, river, or sea. Merriam-Webster, https://www.merriam-webster.com/ dictionary/bank.  The phrase "also means" indicates that a second, additional definition is being described.  See § 630(b) (using the phrase "also means").

Guido, 859 F.3d at 1171-72.

Relying on rationale set forth in other circuits' decisions, the Mount Lemmon Fire District argued that the language of § 630(b) is ambiguous because the statute presented multiple reasonable interpretations.  The Ninth Circuit rejected this rationale, explaining that the other circuits did not elucidate how and why these alternative interpretations were reasonable.

Accordingly, the Ninth Circuit held that the statute is unambiguous, meaning that political subdivisions of a state do not need to satisfy the twenty-employee requirement in order for the ADEA to apply.  In other words, the ADEA applies to public employers regardless of the size of its workforce.  This decision is a significant divergence from decades of law and creates a circuit split with four other circuits–the Sixth, Seventh, Eighth, and Tenth Circuits[1], which held that § 630(b) is ambiguous–and interpreted it as applying only to state political subdivisions that have twenty or more employees.  The Mount Lemmon Fire District filed a petition for certiorari on October 18, 2017, which the Supreme Court granted on February 26, 2018.

[1] Cink v. Grant Cty., 635 F. App’x 470, 474 n.5 (10th Cir. 2015); Palmer v. Ark. Council on Econ. Educ., 154 F.3d 892, 896 (8th Cir. 1998); EEOC v. Monclova Twp., 920 F.2d 360, 362-63 (6th Cir. 1990); Kelly v. Wauconda Park Dist., 801 F.2d 269, 270-73 (7th Cir. 1986).

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Melissa L. Watt | Faruki Attorney