SCOTUS: ADEA employee threshold doesn’t apply to public sector

The Age Discrimination in Employment Act of 1967 (ADEA) prohibits employers from discriminating against people who are 40 or older. The ADEA defines an employer 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. … 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.”

So, private-sector employers with 20 or more employees are subject to the ADEA. But what about public employers: local, state, and federal agencies? Must they have 20 employees to be subject to the ADEA?

The question resulted in a split among the federal circuit courts. The Sixth, Seventh, Eighth, and Tenth Circuits, while noting that the definition is ambiguous, ruled that the phrase “the term also means” is meant to imply clarification of the previous term. In other words, they held that public-sector employers with fewer than 20 employees are exempt from the ADEA. Only the Ninth Circuit applied the ADEA to all public-sector employers.

In its first ruling of the term, a unanimous, eight-member Supreme Court (without Justice Kavanaugh) agreed with the Ninth Circuit, and thus with two firefighters who tried to sue their small fire district for age discrimination.

Justice Ginsburg, writing for the Court, examined not only the grammatical structure of the ADEA’s definition but also its congressional history and Supreme Court precedent. Taking those factors together, Ginsburg determined that what Congress meant was clear: the 20-employee threshold only applies to private sector employers, the ADEA applies to public-sector workplaces of all sizes.

The small fire district urged the court to consider that holding tiny state and local agencies liable for discrimination could be ruinous for them and endanger their continuing operations. The court pointed out that the EEOC has long held that the law applies to public-sector employees of all sizes and “no untoward service shrinkages have been documented.”


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