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No age discrimination protections for small political subdivisions, 9th Circuit rules


Arizona’s smallest towns and fire districts do not have the same protections against federal age-discrimination lawsuits as small private companies, a federal appeals court ruled Monday.

The 9th Circuit Court of Appeals rejected arguments by the Mount Lemmon Fire District that the federal law does not apply to government employers of fewer than 20 workers. That, the attorneys said, means the men have no legal right to claim they were fired because of their age.

But Judge Diarmuid O’Scannlain, writing for the unanimous three-judge panel, said that’s not the way Congress wrote the law.

Monday’s ruling does not mean that either John Guido or Dennis Rankin, both in their 40s when they were terminated, will get their jobs back. But unless overturned, it means they will get a chance to make their case to a jury in federal court.

There was no immediate response from the fire district.

But the decision has broader implications because it strips what had been the presumed immunity of not just fire districts but other small governments, including at least several towns, from these kinds of lawsuits.

According to court records, Guido and Rankin were both hired in 2000. They were the two oldest full-time employees at the district when they were fired in 2009, Guido at 46 and Rankin at 54.

The pair filed an age-discrimination complaint with the federal Equal Employment Opportunity Commission. That agency found “reasonable cause” to believe the district violated the Age Discrimination in Employment Act, paving the way for the lawsuit.

A trial judge tossed the case, citing language in the federal law which says it applies to employers and persons with 20 or more workers.

O’Scannlain said that misreads the law.

He acknowledged the statute defines “employer” — meaning someone subject to the law — 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.”

But he also cited language which says “the term also means … a state or political subdivision of the state.” O’Scannlain said the key word there is “also.”

“It means ‘in addition; besides’ and ‘likewise; too,’ ” he wrote, quoting a dictionary definition. Put simply, the judge said, that 20-person minimum applies only to private employers; it does not apply when the employer is a state or local government agency.

O’Scannlain is not alone in that conclusion.

The EEOC, filing a legal brief in support of the fired firefighters, said if Congress had wanted to exclude small government employers from the reach of the law it could have crafted the law differently.

The issue could end up being decided by the U.S. Supreme Court. That’s because four other federal appellate courts from elsewhere in the country have concluded the language about whether small governments are subject to the law to be ambiguous.

Fire districts may be just one subset of those governments which now have to worry about age-discrimination lawsuits. A quick check around the state found that Tusayan and Duncan both have fewer than 20 workers and, if the ruling stands, now be subject to litigation.

O’Scannlain said he does not know why Congress decided that small employers should be shielded from such litigation but not small governments.

“One can imagine policy reasons for all these choices,” he wrote. “Perhaps Congress thinks that government agencies, even very small ones like the fire district, can better bear the costs of lawsuit than small private-sector businesses or that government should be a model of non-discrimination.”



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