The first decision of the Supreme Court’s 2018-19 term was an employment case. In Mount Lemmon Fire District v. Guido,[i] a unanimous (8-0) court held that the Age Discrimination in Employment Act of 1967 (ADEA) applies to all state and local government employers, regardless of size.

The case resolved a relatively new circuit split about whether the 20-employee threshold in the ADEA applied to governmental as well as private employers.  The Sixth Circuit was one of four Courts of Appeal with a decades-old rule that the minimum-employee threshold applied to governmental employers.[ii]  Meanwhile, the Ninth Circuit’s 2017 decision in Mount Lemmon was the only Court of Appeal holding that the threshold did not apply. Therefore, the Supreme Court’s Mount Lemmon decision is a big change for Tennessee employment lawyers who have relied for nearly 30 years on the Sixth Circuit’s rule that the ADEA only applied to governmental employers with more than 20 employees.

The case arose when the Mount Lemmon Arizona, Fire District, facing budget constraints, laid off its two oldest full-time firefighters: John Guido, 46, and Dennis Rankin, 54. The men filed suit under the ADEA. The Fire District sought dismissal because it was too small to meet the ADEA’s definition of employer:

 The term “employer” means a person engaged in an 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 a State and any agency or instrumentality of a State or a political subdivision of a State, and any interstate agency. . . . [iii]

In an opinion authored by Justice Ginsburg, the court disagreed. The court looked at the legislative history and plain language of the ADEA. First, it considered the fact that the ADEA, like Title VII and the FLSA, originally did not cover governments but was amended in 1974 to add coverage for state and local governmental entities. Next, it turned to the “ordinary meaning” of the phrase “also means,” defining it as “additive rather than clarifying.” Also, the court reasoned that to impose the numerical limit on the “state or political subdivision” portion of the definition would require either adding it to “agent” (a word that logically carries no numerical limitation) or somehow skipping over (1) and adding it only to part (2). Either way, “We resist a reading so strange.”[iv]

Finally, the court rejected two overreach arguments from the Fire District. While acknowledging that its reading made the ADEA significantly broader than Title VII, the court denied that this was problematic, stating, “[T]his disparity is a consequence of the different language Congress chose to employ.”[v]  Lastly, the court rejected the Fire District’s argument that imposing liability on small public entities risked a curtailment of services from these already cash-strapped departments: “Experience suggests otherwise.”[vi]  The court noted that its reading of the ADEA was consistent with the EEOC’s stance of more than 30 years and that a majority of states have state laws that forbid age discrimination by political subdivisions of any size. Despite this historic liability, “No untoward service shrinkages have been documented.”[vii]

Mount Lemmon is an interesting contrast with the court’s decision last term in Digital Realty Trust v. Somers,[viii] in which Justice Ginsburg again wrote for a unanimous court, this time finding against employees in holding the Dodd-Frank Act protects only corporate whistleblowers who report directly to the SEC. There, like in Mount Lemmon, the court agreed that the plain language of the statute defined liability. In both cases, all justices showed a willingness to look beyond ideological predispositions: in Digital Realty, it was the left-leaning justices who went against their expressed sympathy with whistleblowers, while in Mount Lemmon, conservative justices rejected the limited reading pressed by states’ rights advocates and employers.

Indeed, witnesses to the oral argument in Mount Lemmon, which took place in October 2018, noted that “[a]n observer who had nothing to go on except the back-and-forth . . . would probably find it difficult to sort the justices according to their judicial philosophies or liberal or conservative leanings.”[ix]  This is a surprising statement, poised as we are in what has been called “one of the most divided times in the Court’s history.”[x]

In short, in addition to its important expansion of ADEA coverage, Mount Lemmon signals the type of case we can likely expect even this deeply divided Supreme Court to agree on: ones where the plain meaning of a statute is, indeed, plain.

Caraline Rickard is an associate attorney at Gilbert McWherter Scott Bobbitt, PLC, in their Franklin office. She graduated from Vanderbilt Law School in 2015. She concentrates her practice on employee-side labor and employment law. Caraline may be reached at 615-354-1144 or crickard@gilbertfirm.com.