SCOTUS Addresses Numerosity under ADEA

On November 6, 2018, the U.S. Supreme Court issued its first decision in the 2018 term in Mount Lebanon Fire District v. Guido. That case raised the question of whether the numerosity specification of the Age Discrimination in Employment Act of 1967 (ADEA), which defines an “employer” as a person engaged in an industry affecting commerce who has 20 or more employees, applies also to political subdivisions of a state. 29 U.S.C. 630(b). The statute further provides that the term “also means (1) any agent of such a person, and (2) a State or political subdivision of a State . . . .”

In the case, because of a budget shortfall, the petitioner, Mount Lemmon Fire District, fired its two most-senior firemen. The firemen sued, claiming age discrimination. The Court, in a unanimous decision by Justice Ginsburg, held that in using the phrase “also means,” the legislature was adding new categories of employers, unrelated to the prior definition, which was contained in a separate sentence. The fire district asserted that the ADEA should be interpreted in line with Title VII, which holds states and local governments liable only if the meet a numerosity specification. The Court rejected this argument because the wording in the two statutes is different.

Justice Kavanaugh took no part in the consideration or decision of the case.

Sanford Hausler is of counsel with Cox Padmore Skolnik & Shakarchy LLP in New York, New York.

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