Notice & Comment

Guido v. Mt. Lemmon School District: The Supreme Court Decides

Yesterday, the Court decided Mount Lemon First District v. Guido, Dkt No. 17-587, 2018 WL 5794639 (Nov. 6, 2018), its first merits opinion of the October 2018 term.  The question presented was whether the Age Discrimination in Employment Act of 1967 (ADEA) applied to political subdivisions regardless of whether they employed 20 or more employees.  The Circuits had split on the question.  I previewed the issues in the case in a series of two blog posts last May (here and here).

Writing for a unanimous Court, Justice Ginsburg concluded that the ADEA’s general numerosity requirement did not apply to political subdivisions.  The decision was largely driven by a textual analysis of the ADEA’s definition of employer.

The ADEA defines employer as follows:

(b) The term “employer” means 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, . . .

Justice Ginsburg noted that the numerosity requirement in the first sentence, underlined above, applied only to “persons engaged in an industry affecting commerce.”  The term “also means” in the second sentence signaled the addition of two distinct categories of entities to be covered as employers, namely (1) agents of those engaged in interstate commerce and (2) states, political subdivisions, and similar public entities.  As Justice Ginsburg explained, ordinarily the term “also means” is “additive rather than clarifying.”  Slip op. at 4.  Thus, the second sentence of the definition of “employer” was not meant to assist in defining the “persons engaged in an industry affecting commerce” to whom the numerosity requirement applied, but to add categories of covered entities for whom there was no numerosity requirement.  She noted that the phrase “also means” is often used in the U.S. Code in the same manner, id. at 4-5, referencing 12 U.S.C. § 1715z–1(i)(4),[1] as an example.

Moreover, relying on a concession by the Fire District’s counsel at oral argument, Justice Ginsburg asserted that the numerosity requirement unquestionably applied to agents.  Id. at 5.  Thus the numerosity requirement could not apply to government entities. The statute could not reasonably be read to impose a numerosity requirement on agents but not on public bodies, since both were brought within the definition of “employer” by the same sentence.  Nor was there any need to justify interpreting the definition of “employer” differently for purposes of the ADEA and Title VII, such a disparity was simply “a consequence of the different language Congress chose to employ” in the two statutes.  Slip op. at 6.

Justice Ginsburg also rejected the Fire District’s argument that applying the ADEA to small public entities would have untoward effects on the provision of vital public services, observing starchily that “experience suggests otherwise.”  Id.  In this context she noted that the EEOC had for over 30 years construed the ADEA to have no numerosity requirement for public bodies.  Id.

So the Justices unanimously agreed that there was no need to debate the applicability of the Gregory v. Ashcroft federalism clear statement rule, Gregory v. Ashcroft, 501 U.S. 452, 460, 464 (1991).  Nor was the any need to plumb the legislative history or otherwise seek to discern the Congress’s rationale for failing to provide a numerosity limitation on liability under the ADEA as it had for Title VII.  Nor did conservatives’ traditional inclination to protect the sovereign immunity of public entities, particularly state and local government, come into play.

Who knew resolving the case would be so simple and non-contentious?

[1] “[T]he term ‘elderly families’ means families which consist of two or more persons the head of which (or his spouse) is sixty-two years of age or over or is handicapped. Such term also means a single person who is sixty-two years of age or over or is handicapped.”

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