This is not the headline one would expect after the recent election, but, in a unanimous opinion, the U.S. Supreme Court held on November 6, 2018, that the Age Discrimination in Employment Act (ADEA) applies to all public employers regardless of the number of employees. The ADEA protects individuals 40 years or older from unlawful discrimination in the workplace.

The case, Mount Lemmon Fire District v. Guido, arose after the fire district’s chief resolved a budget shortfall by laying off the district’s two oldest full-time employees. The Equal Employment Opportunity Commission (EEOC), which has long maintained that the ADEA covers state and local employers of any size, found reasonable cause to believe the fire district had discriminated against the employees.

In a technical interpretation of the statute, the justices dissected the words “also means” and whether the 20 employee threshold for private employers also applies to public employers. Tracking the legislative amendments for Title VII, the FLSA and the ADEA, the court held that the ADEA amendments specifically added the category of public employers without incorporating the 20 employee limit from the private employer category.

Thus, all public employers are now covered by the ADEA regardless of size. The 20 employee threshold for all private employers remains unchanged. However, many states have enacted age discrimination laws that apply to smaller, private employers. In Ohio, the state age discrimination laws cover private employers with at least four employees, as well as all public employers.

Of course, using age as a factor in employment decisions can lead to legal exposure for the employer. Talking through such decisions with knowledgeable employment law counsel beforehand is never a bad idea.

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