WHAT COULD "ALSO MEANS" ALSO MEAN? In Mount Lemmon Fire District v. Guido, 586 U.S. (2018), SCOTUS Looks at the Phrase and a Couple of Numbered Paragraphs to Affirm Liability for Government Employers Under the ADEA

On November 6, 2018, U.S. Supreme Court Justice Ruth Bader Ginsberg delivered an opinion for the purpose of resolving a conflict between the courts regarding whether or not the numerosity limitation applicable to private sector employees also applies to state and local governments under the ADEA1. As surprising as it may be, crafty defense lawyers across America have argued, successfully, that the ADEA’s numerosity limit applicable to private employers applies as well to public employers. Certiorari was granted for the purpose of, essentially, explaining statutory phraseology and punctuation.

In a terse analysis of the plain language of the definition of “employer,” Justice Ginsberg, noted:

[Under 29 U.S.C. §630(b)], [t]he 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… [emphasis added.]

The entire dispute between the parties rested on the question of whether the phrase “also means” added new categories of employers or simply clarified the types of persons to whom the numerosity limitation would apply. If the defense team was correct in interpreting the paragraph to mean the latter, i.e., simple clarification, small political subdivisions, such as the Mount Lemmon Fire Dist., could escape liability via immunity from suit.

Pointing out that the phrase “also means” is an additive phrase—as well as the fact that the paragraph is actually broken down into two sections, i.e., (1) and (2)—Justice Ginsberg, for the Court, held that the legislature intended to establish separate categories of employers.

Coming as no surprise to many, the Supreme Court held that state governmental subdivisions cannot escape liability for having less than 20 employees, as private employers may enjoy under the ADEA.

1 Age Discrimination in Employment Act, 29 U.S.C. §621, et seq. 

_{The material in this law alert has been prepared for our readers by Marshall Dennehey Warner Coleman & Goggin. It is solely intended to provide information on recent legal developments and is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We welcome the opportunity to provide such legal assistance as you require on this and other subjects. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2018 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved.}