All Small Public Employers Now Subject to ADEA

November 13, 2018
On Tuesday, November 6th, the U.S. Supreme Court issued an opinion in Mount Lemmon Fire District v. Guido, holding the Age Discrimination in Employment Act (“ADEA”) applies to all state and political subdivisions regardless of the number of people employed.

The ADEA defines “employer” to include “a State or political subdivision of a State.” 29 U.S.C. § 630(b). For decades, courts had interpreted this definition to mean that states and political subdivisions with fewer than 20 employees were not subject to the ADEA. In a unanimous opinion by Justice Ginsberg, the Court held this portion of the definition relating to state and political subdivisions is an additional category of employers subject to the ADEA that was separate from the ADEA’s 20-employee minimum requirement.

This decision will affect small public employers because the ADEA will apply even if the public employer has less than 20 employees. The decision also may be a prelude to individual liability under the ADEA, even though the Court declined to rule on this question.

In light of this important decision, we recommend small government employers reassess their antidiscrimination policies and procedures to ensure compliance with the ADEA, as well as ensure any severance and settlement agreements include language that is required to waive ADEA claims, such as providing older employees 21 days to review any agreement and seven days to revoke it after acceptance.

If your organization has questions regarding the impact of this decision on your organization, please contact your Kutak Rock attorney, or other members of our National Labor and Employment Practice.