Size No Longer Matters: ADEA Applies to All State and Local Government Employees

The Supreme Court of the United States has ruled that state and local government entities must comply with the Age Discrimination and Employment Act (“ADEA”) even if the entity employs fewer than twenty (20) employees.

For the past forty (40) years, lower courts have disagreed on whether the ADEA’s requirement for an employer to have at least twenty (20) employees applied to small local government agencies. Many courts have held that government agencies with less than twenty (20) employees were not covered by the ADEA.

This decision issued on November 6, 2018 involves a case brought after a local fire department in Arizona laid off its two oldest, full-time fire fighters due to budget cuts. The fire department argued that the ADEA did not apply because it had only twelve (12) employees, and it pointed out that Title VII (which prohibits race, sex and religious discrimination) only applies to state and local government entities if they have at least fifteen (15) employees. The Court noted the disparity but ruled the language of the ADEA gives it a broader reach than Title VII and it was clear Congress chose to treat the two types of protections differently. It then noted that the better comparator is the Fair Labor Standards Act, which applies to all state and political subdivision employers regardless of the number of employees that they have. The court allowed the claim to go forward against the local fire department. Mount Lemmon Fire District v. Guido, No. 17587 (Nov. 6, 2018).

Following Mount Lemmon, all state and other local political entities must now be mindful of the protections provided to workers who are 40 and older in all aspects of employment. These entities must remember that an age discrimination claim can be brought, even in situations where a younger worker is not hired as a replacement, if there is other evidence of a discriminatory intent against older workers. Moreover, in a situation where a governmental agency decides to terminate an employee who is 40 or older, it must comply with the Older Worker Benefit Protection Act, which requires certain disclosures and a revocation period if the agents want a release of claims for age discrimination. This ruling does not apply to small business or non-profit employers with less than twenty (20) employees.

For more information, contact members of Gentry Locke’s Employment Law team.

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