U.S. Supreme Court Opts to Review Lesser of Two Evils

The U.S. Supreme Court had a choice of reviewing two cases involving age discrimination.

One  involves an obscure issue. A  small government agency near Tucson, AZ,  is arguing it does not have to follow the  Age Discrimination in Employment Act (ADEA) because it has fewer than 20 employees.

The other involves the major issue of our day  – systemic age discrimination in hiring.  R.J. Reynolds Tobacco Co. used internet technology from 2007 to 2010 to weed out 20,000 applications submitted by older workers for the position of sales manager and targeted workers who were “2-3 years out of college” who “easily adjusts to change.”

Guess which case the Court selected for review.

The Court said this week it will decide an appeal filed by the Mount Lemmon Fire District  of a decision by the U.S. Court of Appeals for the Ninth Circuit holding that the ADEA applies to government agencies with fewer than 20 employees. The  fire district argues the ADEA covers only employers with 20 or more workers and that employed only 13 workers. Four other federal circuits have ruled in accordance with the fire district.

The case involves two firefighters, aged 46 and 54, who were the district’s oldest full-time employees when they were fired in 2009. They allege age discrimination in violation of the ADEA.   The district said they  were fired in a cost-cutting action because they did not participate in volunteer assignments fighting fires in natural wildland areas.

When the ADEA was passed in 1967, it applied only to private sector workers. The U.S. Congress amended the ADEA in 1974 to extend its coverage to states, political subdivisions of states and other state-related entities.  The split between the circuits involves a tortured dispute about the wording of the amendment.

The 9th Circuit ruled the amendment unambiguously states that a political subdivision of a state is a distinct category  that lacks a 20-employee minimum employee requirement. Furthermore, the 9th Circuit contends the fire district and other circuits relied on decades old precedent and used an outmoded method of statutory interpretation that “cannot be reconciled” with the Supreme Court’s  recent  jurisprudence.

An issue of little consequence?

Counsel for the firefighters argued the issue is not significant enough to merit  Supreme Court review because “the ADEA’s numerosity requirement would have no discernible impact on the primary conduct of public employers, and questions regarding its applicability in this context rarely arise.” Also,  they note, state laws typically forbid all political subdivisions—regardless of size—from discriminating against employees on the basis of age.

Reynolds Case

Last summer, the Court refused to hear an appeal of a ruling by the 11th Circuit Court of Appeals in Atlanta in the Reynolds case.

The 11th court said Richard Villarreal, who applied numerous times for a sales manager position, could not sue Reynolds for using internet software to systematically screen out the resumes of older job applicants. The appeals court reasoned that job applicants can’t sue for systemic discrimination because they have “no status” as employees. As a result, job applicants in Alabama, Georgia and Florida currently have no protection from systemic age discrimination.

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