High court affirms 9th Circuit in age discrimination lawsuit

The U.S. Supreme Court expanded the scope of federal employment protections in its first opinion of the new session Tuesday.

The 8-0 decision, in which newly-appointed Justice Brett Kavanaugh did not participate, rejected an argument from an Arizona fire district that the Age in Discrimination Employment Act, or ADEA, should not apply to the public entity because it employs fewer than 20 people.

"The Equal Employment Opportunity Commission has, for 30 years, interpreted the ADEA to cover political subdivisions regardless of size, and a majority of the states impose age discrimination proscriptions on political subdivisions with no numerical threshold," wrote Supreme Court Justice Ruth Bader Ginsburg, who authored the opinion, which affirmed a 9th U.S. Circuit Court of Appeals decision written by conservative Judge Diarmuid O'Scannlain.

The justices ruled in favor of firefighters claiming age discrimination by the Mount Lemmon Fire District and remanded the case back to district court.

The two sides disputed whether a 1974 amendment to the age discrimination act added state and local government employers to the scope of protection regardless of the provision's employee threshold, or if the act applies only if the employer has at least 20 employees as the fire district argued.

Ginsburg found the expression "also means" the act should be interpreted to establish separate categories of private employers with 20 or more employees and "political subdivisions with no numerosity limitation."

"First and foremost, the ordinary meaning of 'also means' is additive rather than clarifying," she wrote.

The two plaintiffs alleged age discrimination by the fire district when it laid them off. Mount Lemmon Fire District v. Guido, 17-587.

Michael Rubin of Altshuler Berzon LLP said he was not surprised the Supreme Court's first opinion was unanimous and focused on a case which emphasized language interpretation. He added the opinion will not affect jurisdictions which subject local entities to state anti-discrimination laws but is nonetheless significant because courts were divided on the issue.

"The scope of the act will be broadened as Congress always intended, and it will discourage smaller public entities from discriminating on basis of age because they will face liability," he said.

The fire district warned that applying the act to small public entities risks diminishing the efficacy of vital public services like fire prevention.

"Experience suggests otherwise," Ginsburg wrote, adding a majority of states forbid age discrimination by local entities of any size.

A federal judge initially dismissed the terminated employees' discrimination claims because the fire district only had 11 employees not afforded protection under the act.

Similar lawsuits against public agencies were dismissed by the 6th, 7th, 8th and 10th circuits.

But the 9th Circuit sided with the Mount Lemmon firefighters that the statute should be read to classify public entities apart from private employers, which are subject to the employee threshold.

"'Also' is a term of enhancement; it means 'in addition; besides' and 'likewise; too,'" wrote O'Scannlain in the 9th Circuit opinion.