Firefighter Case Leaves Justices Tangled in Age-Bias Law

WASHINGTON (CN) - The fate of age-discrimination claims against an Arizona fire department hangs in the balance after the Supreme Court spent a hearing Monday dissecting a statute’s use of the words "also means.”

The problem, for the justices, is that the Age Discrimination in Employment Act equivocates on which employers fall under the law's requirements.

While the statute defines an employer as "a person engaged in an industry affecting commerce" with 20 or more employees,” it later says employer "also means" any "agent of such person" and "a state or political subdivision of a state.”

The question argued Monday was whether "also means" makes political subdivisions a wholly separate category of employer subject to the ADEA's requirements, or whether it merely clarifies that state and local employers should be treated in the same fashion as private companies under the ADEA.

Pushing for a reversal, the Mount Lemmon Fire District told the justices this morning that the reading adopted last year by the Ninth Circuit "wreaks havoc" on what Congress meant to do with the anti-discrimination law.

The Ninth Circuit found that Mount Lemmon could still be sued for age discrimination by two firefighters, even though the district employed fewer than 20 people.

"So I recognize, your honors, that neither reading is perfect, but it really comes down to a choice between a reading that is, at worst, mildly ungrammatical and one that is wildly untenable," said Joshua Rosenkranz, an attorney for the district with the firm Orrick Herrington and Sutcliffe.

By reading "also means" as separating political subdivisions from other employers, Rosenkranz said the court would be erasing Congress' goal of equalizing the law's treatment of private and state and local employers. He also said the Ninth Circuit's reading of the law could open individual employees up to lawsuits, a result lawmakers could not have intended.

"Since there's a reasonable reading of the statute that achieves Congress' stated goals without creating any of this mischief, that is the reading that this court should adopt," Rosenkranz said.

Justice Elena Kagan questioned this interpretation, saying there are better ways Congress could have written the law if Rosenkranz is correct about lawmakers’ intent.

"I understand that you say that there are anomalies if done in a different way, but the doubt arises from the ambiguity of the term 'person,'" Kagan said. "So that's why I'm suggesting that it would be a strange way to resolve that doubt, instead of to just say, by the way, a person includes a subdivision, instead of saying that, to say the term 'employer' also means a subdivision."

Jeffrey Fisher, who argued the case for the firefighters, said the way the Ninth Circuit read the law comports with how Congress has used "also means" in other statutes. In fact, Fisher said there are 32 instances in other areas of law in which Congress used the phrase to add new categories.

"But I think the fundamental thing that I would urge the court is that you have before you in this case a simply unambiguous statute in terms of every word you need to decide this question presented," said Fisher, who is with Stanford Law School. "It says the term 'employer' also means a state or political subdivision. That's all you  need to decide this case and it is absolutely clear."

Justice Samuel Alito seemed to spot an anomaly in the firefighters' argument, noting that their reading of the law would cover small state and local employers for claims of age discrimination but not racial bias.

"Do you really thing that as a policy matter Congress would say that age discrimination is more pernicious and more widespread, so therefore, we have to have a tougher remedy there than we do with respect to racial discrimination?" Alito asked.

Firefighter plaintiffs Guido and Rankin were each fired in 2009 at ages 46 and 54. They were the two oldest full-time in the district at the time, serving as firefighter captains with nine years’ experience apiece.

Also at the time, the Mount Lemmon Fire District had been suffering budget troubles due to plummeting tax revenues.

In reviving the men’s case last year, the Ninth Circuit split from the Sixth, Seventh, Eighth and 10th Circuits, which have all found that. the ADEA does not apply to local government organizations with fewer than 20 employees.

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