Ninth Circuit Ruling Widens Gulf Between Private and Public Employees under the ADEA

puzzlepieceA federal appeals court disagreed with four other federal circuits this week to hold that a political subdivision of a state need not have 20 or more employees to be sued under the Age Discrimination in Employment Act.

The ruling reinstated a lawsuit filed against the rural Mount Lemmon Fire Department, near Tucson, AZ,  by fire fighters John Guido, 46, and Dennis Rankin, 54, both captains, who claimed they were fired in 2000 because they were the oldest full-time firefighters in the district.

A three-judge panel of the 9th circuit  appeals court overturned the lower court ‘s decision to grant the Fire District’s motion to dismiss the case without a trial on the grounds that the district did not meet the ADEA’s threshold requirement of  having 20 or more employees.

The appeals court held that the 20-employee minimum does not apply to political subdivisions of the State.

The issue comes down to the wording of a 1974 amendment to the ADEA that extended the law’s reach to “employers having at least 20 workers, and to the Federal and State Governments.”  The 9th Circuit panel said the plain reading of the clause shows that the first sentences does not include the second sentence. In other words, federal and state governments are not subject to the 20-worker requirement.

The case highlights a problem inherent with the ADEA – employees are subject to differing treatment depending upon whether they work for private or public sector employers.

In 2009, the U.S. Supreme Court in Gross v. FBL Financial Services raised the standard of proof in age discrimination cases by requiring that plaintiffs show that age discrimination was the “but for” or determinative cause of an adverse employment action (i.e. demotion, dismissal).  The U.S. District Court of Appeals for the District of Columbia Circuit subsequently ruled that  the section of the ADEA that covers federal sector workers stipulates that “all personnel actions … shall be made free from any discrimination based on age.” Therefore, the appeals court said, the Gross decision does not apply to federal sector employees because it could “impermissably permit age bias to infect employment decisions. This means that theoretically, at least, it is easier for federal  sector workers to prove age discrimination than private sector workers.


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