The Age Discrimination in Employment Act of 1967 (“ADEA”) forbids employment discrimination against employees who are 40 years of age or older. Private employers with less than 20 employees are not subject to the ADEA. On November 6, 2018, the U.S. Supreme Court unanimously held that the ADEA’s 20-employee threshold does not apply to government employers, and that state and local government entities are subject to the ADEA even if they have fewer than 20 employees. See Mount Lemmon Fire District v. John Guido.
In Mount Lemmon, two firefighter captains claimed that they were illegally terminated by a small fire department near Tucson, Arizona, because of their age. Both Plaintiffs were over the age of 40 when they were laid off in 2009. The fire department argued that the case should be dismissed because it was too small to be deemed an employer under the ADEA. The Ninth Circuit Court of Appeals rejected that argument, holding that the ADEA’s 20-employee threshold only applied to private employers, not public entities.
Other Federal Circuits had been split on how to treat small government employers under the ADEA, so the Supreme Court stepped in to resolve the issue. The case turned on the ADEA’s definition section, which states:
“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 . . . .”
Justice Ruth Bader Ginsburg delivered the opinion of the Court. Playing the role of textualist, she noted that the language following the phrase “also means” meant that the law should apply to government employers of all sizes. While this reading gives the ADEA a broader reach than Title VII of the Civil Rights Act, “this disparity is a consequence of the different language Congress chose to employ” in the two statutes. Justice Ginsburg also noted that “[f]or 30 years, the Equal Employment Opportunity Commission has consistently interpreted the ADEA as we do today.”
Small employers (both public and private) remain exempt from some federal employment laws, as indicated in the chart below. However, other federal laws, such as the Fair Labor Standards Act which mandates minimum wage and overtime pay, have no minimum employee threshold. Employers must also remain mindful of state and local laws that often have no (or very low) employee thresholds.
|Statute||Protected class||The Number Threshold of Employees for private employers||The Number Threshold of Employees for Government Employers|
|ADEA||age discrimination||20||No minimum|
|Title VII of the Civil
Rights Act of 1964
|race, color, gender,
religion, national origin
|Family and Medical
|family and medical
Disabilities Act of
Employers with questions about what state, federal and local laws may apply to their workplaces should consult with experienced labor and employment counsel. Obermayer attorneys are available to counsel and assist employers with compliance with these various laws.
 Justice Kavanaugh did not participate in the consideration or decision of the case, as it was argued before he was confirmed.
The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.
Ivo Becica focuses his practice on advising employers on how to reduce litigation risk and resolve employee issues, and on defending employers in litigation if necessary. He can be reached at 215-667-6335 or firstname.lastname@example.org