U.S. Supreme Court building

The U.S. government raised concerns Monday at the U.S. Supreme Court that a ruling against a group of terminated firefighters claiming age bias would create a loophole benefiting employers in federal age discrimination enforcement cases.

The case at the high court, Mount Lemmon Fire District v. Guido, explores the scope of the Age Discrimination in Employment Act, the statute that governs protections for workers 40 years of age and older. The firefighters contend they were fired and replaced by younger workers.

The justices were asked to resolve whether a small government agency should be exempt from age discrimination laws, as small businesses with 15 or fewer employees are under Title VII of the federal civil rights laws. Title VII provides protections for race, national origin, religion and sex.

Jonathan Bond, an assistant to the solicitor general, argued as a friend-of-the-court on behalf of the U.S. Equal Employment Opportunity Commission. The EEOC was backing John Guido and his fellow worker Dennis Rankin, two captains who were fired from the Arizona-based Mount Lemmon Fire District. Bond told the justices the age-discrimination act “expressly covers” state and political subdivision employers regardless of their size.

Bond argued that a ruling for Mount Lemmon “would leave a sizable loophole that would allow any employer to evade the age act by outsourcing discrimination to small agents.”

Mount Lemmon, represented by Orrick, Herrington & Sutcliffe partner Joshua Rosenkranz, is appealing a ruling by the U.S. Court of Appeals for the Ninth Circuit. The appeals court said the fire district should not be exempt from federal age discrimination law, a decision that was contrary to other appeals court rulings. Rosenkranz argued the age discrimination law should not apply because Mount Lemmon had 13 employees in 2009 when it laid off Rankin, 54, and Guido, 46.

The age discrimination act, commonly known as the ADEA, defines the term “employer” as “a person engaged in an industry affecting commerce who has 20 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.” The law goes on to say that “the term also means … a state or political subdivision of a state.”

Rosenkranz said Congress intended for the age discrimination law to mirror Title VII, “so the question arises: Why did Congress supply that important protection only to private employees and not to public ones? Because that is the consequence of [the workers’]‘ reading.” He argued the consequence for small agencies to be considered employers would be disastrous.

O’Melveny & Myers special counsel Jeffrey Fisher, who represented the firefighters, said the statute is unambiguous.

Justice Samuel Alito asked during one exchange: “Do you really think 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?”

Fisher acknowledged Congress could have made another choice, but ultimately, “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. I’d urge the court to resist the temptation to go looking elsewhere in the statute for ambiguity as a reason why not to answer this case as to what the statute itself plainly says. And that’s really, I think, the beginning and the end of it. And you can leave all that other stuff, if it ever comes back to the court, for another day.”


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