Wednesday, November 7, 2018

Ninth Circuit's Revenge: SCOTUS on ADEA definition of "employer"

The 6th, 7th, 8th, and 10th Circuits held one way . . . and then the 9th Circuit held another way, creating a circuit split. The Supreme Court granted certiorari, which means the 9th Circuit will surely get reversed right?

That would be the conventional wisdom. But, the 9th Circuit had the statutory text on its side.

The Supreme Court issued its first opinion of the term yesterday in Mount Lemon Fire Dist. v. Guido. The ADEA generally only covers employers with 20 or more employees, but does that 20-employee cutoff apply to state entities (including political subdivisions)? Let's go to the text of the ADEA:
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 . . . .
In a unanimous opinion (minus Justice Kavanaugh, who was not yet on the Court when the case was argued), Justice Ginsburg focused on the text. In particular, the words, "also means." This suggests that the statute is creating additional categories aside from the 20-employee prelude. Thus, the Court held "state and local governments are “employer[s]” covered by the ADEA regardless of their size."