Considering Whether a Federal Age Discrimination Law Applies to Small Public Agencies

Firefighters John Guido and Dennis Rankin contend that the decision to lay them off during a budget shortfall in 2009 was based on their ages. At 46 and 54, they were the oldest of the 13 full-time employees at the Mount Lemmon Fire District.

But when the U.S. Supreme Court hears arguments in their discrimination lawsuit on Monday, the focus won’t be on why Guido and Rankin lost their jobs. Instead the spotlight will be on whether the federal law banning employers from discriminating on the basis of age applies to small local agencies like the Arizona fire district that provides fire protection, EMS and rescue services within 12.5 square miles in the Santa Catalina Mountains.

Attorneys for Guido and Rankin, joined by the federal Equal Employment Opportunity Commission, argue it does. But the fire district, along with advocates for state and local government agencies, says that federal law only applies to either government bodies or private companies with 20 or more employees.

While the Supreme Court won’t deal with the substance of the discrimination argument, the fire district in legal filings has said that the agency in 2009 faced a $67,000 hole after property tax revenues dropped. The district ended up laying off Rankin and Guido, both captains with the agency, telling them they were chosen at least in part because they hadn’t recently worked any extra wildfire suppression shifts that helped generate money for the agency, one legal filing asserts.

But Rankin and Guido, who was also a paramedic, said the wildfire work was not mentioned in their termination letters and they were subsequently replaced by less experienced, younger employees (including one who also hadn’t done wildfire shifts). In 2012, the EEOC agreed with the two former firefighters that there was “reasonable cause” that the fire district violated federal anti-discrimination law in their terminations.

Organizations representing state and local governments filed an amicus brief supporting Mount Lemmon, saying it isn’t fair to apply this employment law to small public employers when small private companies are shielded. There are thousands of districts like Mount Lemmon, which operate on lean budgets and utilize small staffs, and are “ill-equipped to handle expensive employment discrimination lawsuits,” wrote Collin O’Connor Udell, an attorney representing the State & Local Legal Center.

But the AARP, a lobbying organization representing people older than 50, noted that many state discrimination laws already cover small public employers like the Mount Lemmon district. (Arizona’s law does not, however, according to another legal brief.)

Lawyers for the fire district “greatly exaggerate potential adverse effects on small state and local public entities of having to comply” with the federal law, the AARP asserted. The group argued that employees of small local and state agencies also deserve to be protected by the federal law banning age discrimination.

Ann Hodges, a law professor at University of Richmond who specializes in employment law, said that the 9th U.S. Circuit Court of Appeals split from four other appellate courts in 2017 when it decided the Age Discrimination in Employment Act covered all state and local agencies.

While the other court decisions favor the public employers, Hodges noted that the easiest interpretation of the federal law, which was amended in 1974, sides with Guido and Rankin.

“The most natural reading is the one that says they are covered,” she said.

In legal briefs before the Supreme Court, the discussion focuses largely on how to read two sentences defining an employer. The law says an employer is “a person engaged in an industry affecting commerce who has twenty or more employees.”

But then the next sentence adds that an employer “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….”

In his decision, 9th Circuit Judge Diarmuid O’Scannlain emphasized that this is a case that will center on a close reading of these lines, dissecting exactly what Congress meant more than four decades earlier when it chose the word “also” in the second sentence.

O’Scannlain finally concluded that other circuit courts that have considered this question are wrong. “The best reading of the statute would be that the twenty-employee minimum does not apply to a political subdivision of a State,” the judge wrote. He overturned the district court judge and sent the case back for more proceedings.

But Mount Lemmon’s lawyers disagreed, saying the judge misinterpreted the law. “This case is about the only right way to read a statute: Beginning to end,” they wrote. They argued the second sentence clarifies the first, but didn’t add a new category of employers covered by the law.

Hodges, the law professor, said employment cases at the Supreme Court tend to split along the court’s traditional liberal and conservative lines. But she noted that many of the conservative judges are ones who focus the most on interpreting the language of statutes, which makes it harder to predict how this case will be received.

Update: This story was updated after publication to correct the number of employees at the fire district.