The ADEA generally prohibits an “employer” from
discriminating against employees over the age of 40
because of their age. As it originally was adopted in
1967, the ADEA, like Title VII of the Civil Rights Act
of 1964, applied only to private employers. Howev-
er, in 1972, Congress amended Title VII to include
public employers. Two years later, in 1974, Con-
gress amended the ADEA to include public employ-
ers. But in amending the law Congress used differ-
ent language and statutory construction. Prior to
the Mount Lemmon Fire decision , circuits interpret-
ed the statutes’ language differently.
In Mount Lemmon Fire District v. Guido , two
firefighters claimed they were terminated because of
their age in violation of the ADEA. Mount Lemmon
Fire District, a political subdivision of Arizona, has
less than 20 employees. Thus the Fire District
moved for summary judgment, arguing that because
it did not have 20 employees, the ADEA was not
applicable them. The lower court ruled in favor of
the employer, and the firefighters appealed. The
Ninth Circuit reversed, holding that size was irrele-
vant when determining whether a public employer
was subject to the ADEA. This created a split
among the Circuits, and the Supreme Court granted
certiorari to resolve the dispute.
In the majority opinion authored by Justice Ruth Ba-
der Ginsberg the Court affirmed the Ninth Circuit’s decision, and specifically rejected Mount
Lemmon Fire District’s argument that the ADEA clearly requires a minimum number of
employees The Court also rejected Mount Lemmon Fire District’s public policy argument that
applying the ADEA to small governmental employers would make it difficult to provide safety
related public services by deferring much needed funds away from the community towards
fighting litigation.
The initial ramifications of this decision are clear – unlike in the private sector where an
employer must have 20 or more employees to be subject to the ADEA, all public sector
employers, regardless of size, must now comply with and be wary of the ADEA. This may be
burdensome on smaller municipalities and special districts – like Mount Lemmon Fire District
– where 20 or more employees are simply unnecessary to properly provide services, and min-
imal budgets make it difficult to defend against such lawsuits.
A secondary implication of this case that the Court left unanswered was whether Congress
intended to impose ‘ individual liability’ for an ADEA violation. While the Court dismissed the
issue in a footnote, in some circumstances it appears to be a natural extension of Mount
Lemmon Fire District. Although there exists a split among the circuits, my advice to GACP
www.gachiefs.com • Page 30 • 2nd Quarter Newsletter