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Ninth Circuit Expands ADEA’s Reach Over Public Employers

Two firefighters working for the Mount Lemmon Fire District in Arizona will now be entitled to protection from the Age Discrimination in Employment Act. These two fire captains were aged 46 and 54 at the time of their terminations, making them the oldest full-time employees in their district. Mount Lemmon contested the suit because the district had less than 20 full-time employees.

The ADEA provides protection from age discrimination for employers with 20 or more employees. Some courts have applied that restriction to political subdivisions of a state, like Mount Lemmon. The Ninth Circuit Court of Appeals has held that public employers may be bound by the ADEA even if they have less than 20 employees.

In creating a split among circuit courts, the Ninth Circuit carefully parsed out the language of the statute. “The term ‘employer’ means a person engaged in industry affecting commerce who has twenty or more employees... The term also means (1) any agent of such a person, and (2) a State or political subdivision of State…” (Italics added) According to Ninth Circuit, the term “also” reflected an intention to create another definition of employer and was not meant to clarify the 20-person definition. Per the court, if Congress had wanted to clarify it would have used the word “include” as “[t]he word ‘also’ is not used in common speech to mean ‘includes.’” In support of its conclusion, the Ninth Circuit also relied on the 1972 Amendment to Title VII, which made it clear by its language that the employee minimum did apply to political subdivisions. The same language was not utilized in the ADEA’s amendment two years later.