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Small Government Not Exempt From Age Discrimination

By George Khoury, Esq. | Last updated on

This week, the High Court issued their first opinion of the Fall 2018 term. The case, Mount Lemmon Fire District v. Guido, involved the statutory interpretation of the Age Discrimination in Employment Act's 1974 revision which added liability to state and local governments.

At issue was whether that liability existed regardless of the size of the local government, as the ADEA only applies to private employers with 20 or more employees. There is a circuit split as to whether the 20 or more employee requirement applies to state and local governments, or whether the revised statute wholesale included state and local governments as categories covered by the ADEA regardless of size.

Splitting Years

The eight justices deciding the case were in agreement, with each other and the Ninth Circuit, that the language pointed towards liability being possible against local governments regardless of size. (Rookie Justice Kavanaugh did not hear or participate in the case).

The Court looked at similar language used in the FLSA (which was revised in the same year) and Title VII to show that Congressional intent strongly suggested that the ADEA intended to hold all government employers liable for violations regardless of size, unlike private employers. Basically, the Court's ruling puts all public employers within the reach of the ADEA.

Notably, the Court went into detail explaining why the common legal usages of the phrase "also means" tended to be additive. In responding to the challengers' request to read it as clarifying rather than additive, Justice Ginsburg, who authored the first opinion of the term again, flat out states: "We resist a reading so strange."

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