The U.S. Supreme Court granted certiorari in Guido v. Mt. Lemmon School District.  — U.S. — , 138 S.Ct. 1165 (February 26, 2018).  Presumably, it did so to resolve a Circuit split regarding the application of the Age Discrimination in Employment Act of 1967’s (ADEA) numerosity requirement, 29 U.S.C.A. § 630(b), to public employers.  In Guido, the Ninth Circuit held that the numerosity requirement applied only to private employers, 859 F.3d 1168 (2017).  In prior cases the Sixth, Seventh, Eighth, and Tenth Circuits had held that the numerosity requirement applies to both public and private employers. The leading decision was Kelly v. Wauconda Park District, 801 F.2d 269 (7th Cir. 1986), upon which the other three Circuits relied.

In this post, I will outline the interpretive problem that faces the Court.  In doing so I will discuss a “clear statement” rule that has so far gone unmentioned.  In my next post, I will examine whether public employers should be excused from the numerosity requirements employment discrimination statutes.  I will suggest, based on the rationales for the numerosity provisions laid out with respect to Title VII, that application of such numerosity requirements governmental entities is not particularly appropriate.

The Interpretive Problem Facing the Court

Title VII and the ADEA proceeded along similar courses.  Title VII was enacted as a part of the historic Civil Rights Act of 1964; the ADEA followed three years later.  Originally each applied only to private employers.  In 1972 Congress expanded Title VII to include public employers.  As amended, 42 U.S.C. § 2000e read, in relevant part:

(a) The term “person” includes one or more individuals, governments, governmental agencies, political subdivisions, labor unions, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in cases under Title 11, or receivers.

(b) The term “employer” means a person engaged in an industry affecting commerce who has fifteen or more employees . . .

(Emphasis added.)  In 1974 Congress expanded the ADEA to include public employers.  As amended, that statute, 29 U.S.C.A. § 630, read in relevant part:

(a)  The term “person” means one or more individuals, partnerships, associations, labor organizations, corporations, business trusts, legal representatives, or any organized groups of persons.

(b) The term “employer” means a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year: . . . The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State, and any interstate agency, . . .

(Emphasis added.)  Notice, both statutes’ definition of “employer” incorporates the statute’s definition of “person.”  Title VII extends the Act’s coverage by broadening the definition of “person,” while the ADEA does so by supplementing the definition of “employer” so as to include entities that fall outside the ADEA’s definition of “person.”  This minor difference could have great significance.

At first blush, Guido will pit strong textualists, who will generally accept a clear expression of rights and obligations in statutory text without need for further explanation, against jurists generally inclined to favor sovereign immunity as well as those who inclined to seek explanations for apparent anomolous statutory text.

ADEA section 630’s text can most naturally be read to apply the numerosity requirement only to private enterprises (that is, only to “employers” that also satisfy the ADEA’s definition of “person”), particularly given that a similar amendment to Title VII just two years earlier, added governments, government agencies, and political subdivisions to the definition of person, making the numerosity requirement clearly applicable.  For the textualist, such an analysis would ordinarily suffice to resolve the case. See, Chisom v. Roemer, 501 U.S. 380, 406 (1991)(Scalia, J., dissenting)(rejecting the concept that “Congress cannot be credited with having achieved anything of major importance by simply saying it, in ordinary language, in the text of a statute, ‘without comment’ in the legislative history”).  As Guido’s author, Judge Diarmuid F. O’Scannlain, explained in rejecting the contrary Seventh Circuit precedent, “Kelly’s focus on divining congressional intent, rather than determining the ordinary meaning of the text, led it astray.” Id. at 1174.  (Note, Judge O’Scannlain describes himself as a textualist in the mold of Justice Scalia, Diarmuid F. O’Scannlain, Lawmaking and Interpretation: The Role of a Federal Judge in Our Constitutional Framework, 91 Marquette L. Rev. 895, 900-903 (2008)).

But jurists who are not devoted textualists might wonder about the following questions.  Why would the ADEA treat public employers and private employers differently?  And if so, why reverse the usual pattern of showing greater solicitude to states, their political subdivisions, and their instrumentalities than to private entities, by subjecting the former to more expansive coverage?  Why would the ADEA and Title VII not be expanded in parallel fashion?  And, if one of the two statutes was to be accorded a broader reach, wouldn’t Congress have chosen Title VII rather than the ADEA?  Age discrimination is serious, but surely racial and gender discrimination are the greater scourges.  See Kelly, 801 F.2d at 273.  It is not clear that anything in the legislative history would explain such a policy choices, if indeed Congress made consciously made such policy choices.  The unexplained difference between the ADEA and Title VII can perhaps more credibly be ascribed to imprecise drafting than to a considered policy decision.  Id. at 272.  As the Kelly Court explained, “[j]ust because the language of a subsequent statute is not identical to the earlier statute on which it was modeled, we do not necessarily assume that Congress intended to change the meaning[,]” particularly where “Congress gave no indication that it intended to change the meaning.”  Id.

The Textualists’ Redoubt: The Gregory/BFP Federalism “Clear Statement” Rule

Of course, the Supreme Court’s textualists have also tended to favor expansive sovereign immunity for state and local governments.  (Justices Rehnquist, Scalia, and Thomas most clearly fit this mold, but so do Justices Powell, O’Connor, and Roberts to some extent.  One might predict Justice Gorsuch will also fit that mold.)  Perhaps the Court’s current textualists may be saved from the dilemma created by their “new textualist” and “new federalism” tendencies by the federalism “plain statement” rules.  (For a broader discussion of the federalism clear statement rules, see William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 Vand. L. Rev. 593 (1992)).

One federalism clear statement rule provides that Congress must be explicit when it seeks to alter the customary balance between federal and state powers.  In Gregory v. Ashcroft, 501 U.S. 452, 460, 464 (1991), the Court phrased the rule as follows: ‘it is incumbent upon the federal courts to be certain of Congress’ intent before finding that federal law overrides’ ” the “usual constitutional balance of federal and state powers.”  In BFP v. Resolution Trust Corp., 511 U.S. 531, 544 (1994), the Court quoted Justice Frankfurter in annunciating the test: “[f]ederal statutes impinging upon important state interests ‘cannot . . . be construed without regard to the implications of our dual system of government. . . . [W]hen the Federal Government takes over . . . local radiations in the vast network of our national economic enterprise and thereby radically readjusts the balance of state and national authority, those charged with the duty of legislating [must be] reasonably explicit.’” Id. (quoting Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 539–540 (1947)).  A line of cases have applied one or the other of these precedents. See, e.g., Bond v. U.S., — U.S. —, 134 S.Ct. 2077, 2088-2090 (2014); Rapanos v. U.S., 547 U.S. 715, 738 (2006); Nixon v. Missouri Municipal League, 541 U.S. 125, 140-41 (2004). By requiring such an explicit legislative statement when Congress seeks to significantly alter the federal-state balance, the Court seeks to ensure that the “political protections” of federalism “kick in.”  Gregory v. Ashcroft, 501 U.S. at 464 (referencing the discussion of the political protections of federalism discussed in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 550-554, 556 (1985)).

Clear statement rules are particularly appealing to textualists, because unlike most canons of statutory interpretation, which try to resolve acknowledged statutory ambiguities, clear statement rules convert ambiguity into certainty.  In effect, they allow courts to find unambiguous meaning in seemingly ambiguous statutes, by specifying a determinate rule of decision once ambiguity is acknowledged.  Bernard W. Bell, Using Statutory Interpretation To Improve The Legislative Process: Can It Be Done In The Post-Chevron Era?, 13 J.L. & Pol. 105, 133-138 (1997).  Indeed, such clear statement rules convert Chevron Step II cases into Chevron Step I cases, thus allowing courts to more readily disregard authoritative administrative interpretations that threaten the values encoded in “clear statement” rules.  Id. at 135-137.

The question of whether the “clear statement” rule applies at all may be a matter of debate in Guido, as it has so often been in prior cases.  In BFP v. Resolution Trust Corp., four Justices dissented from the reliance on the plain statement canon, noting that the Court had not required a “clear statement” in interpreting numerous Bankruptcy Code provisions that altered existing state practices.  511 U.S. at 566-68 (Souter, J., dissenting). In City of Edmonds v. Oxford House, 514 U.S. 725 (1995), thee dissenting Justices argued that Gregory required a narrow reading of the Fair Housing Act’s (FHA) limitation on local “maximum occupancy” zoning laws. Id. at 743-44 (Thomas, J. dissenting).  The majority dismissed the argument in a footnote, noting inter alia, that broad interpretation of the FHA’s limitation on local ordinances did not implicate “a decision of the most fundamental sort for a sovereign entity.” Id. at 732, n.5.  In Gonzales v. Oregon, 546 U.S. 243 (2006), the majority limited Attorney General’s use of his statutory authority over controlled substances to preclude doctors from prescribing life-ending drugs to terminal patients pursuant to Oregon’s “right to die” law.  The majority did so as a “common sense” interpretation of the Controlled Substances Act, explicitly stating that it did not need to ground its ruling upon the Gregory/BFP clear statement rule. Id. at 274.  This certainly suggests that the majority found the clear statement rule consistent with its holding, and indeed the Ninth Circuit had relied upon the Gregory clear statement rule, Oregon v. Ashcroft, 368 F.3d 1118, 1124-25 (9th Cir. 2004).  The three dissenting Justices found the Gregory/BFP clear statement rule, which required narrow interpretation of federal statutes that “impinge on a core aspect of state sovereignty,” inapplicable. Gonzalez v. Oregon, 546 U.S. at 291 (Scalia, J. dissenting).  These disputes are hardly surprising, given that the raison d’être of much federal legislation is either prescribing generally applicable rules that apply to state and local governments as well as private entities or changing the roles of federal and state governments in an attempt to address increasingly interstate and international problems.  (This helps explain why the Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947), against preemption when Congress has “legislated . . . in a field which the States have traditionally occupied,” is so often honored in the breach.)

Ironically, Gregory v. Ashcroft itself involved the ADEA.  But the case is clearly distinguishable from Guido.  Gregory v. Ashcroft involved the ADEA’s applicability to state statutes prescribing a mandatory retirement age for judges.  It required the Court to construe the exclusions from the ADEA’s definition of “employee.”  Congress defined the term to exclude “any person elected to public office . . . , or any person chosen by such officer to be on such officer’s personal staff, or an appointee on the policymaking level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office.”  29 U.S.C. § 630(f).  The statutory text actually seems clear — the best argument Missouri could manage was, that the judges were “appointees on the policymaking level,” was certainly a stretch.  Nevertheless, the Court presumed, absent a clearer expression of congressional intent, that appointed judges fell within this exemption, given that the usual federal-state balance allowed states to determine the qualifications for their own officials.  Gregory v. Ashcroft, 501 U.S. at 460, 470.  Indeed, the Court noted the critical nature of a government’s ability to specify the qualifications for holding public offices.  Id. at 460, 468.

The application of the numerosity requirement to cover employees of fire districts employing fewer than twenty people does not raise the significant federalism concerns at issue in Gregory v. Ashcroft.  The numerosity requirement is not focused on generally-applicable qualifications for any office, much less offices that play a central role in the polity.  And any such federalism concerns implicated by the numerosity requirement are best addressed in interpreting the ADEA’s definition of “employee.”  There is no federalism-based reason why the federal government should encourage states to create very small subdivisions.

And unlike Gregory v. Ashcroft, Guido does not involve any publicly announced policy regarding age limitations on public employment.  Rather it involves an allegation that a public entity used a pretext in discharging the two firefighters to avoid acknowledging the real motivation for the personnel actions, the firefighters’ age.  Federal invalidation of openly-acknowledged policies at odds with anti-discrimination or other employment laws might raise federalism concerns. They might infringe upon a state’s ability to set the generally-applicable qualifications for its most important officials. They may compromise a state’s ability to forthrightly determine whether its officials are performing their jobs competently and appropriately — there has been a trend toward making public employees “at will” employees lacking substantial civil service protection to enhance managerial flexibility.  Jungin Kim & J. Edward Kellough, At-Will Employment in the States: Examining the Perceptions of Agency Personnel Directors, 34 Rev. of Pub. Personnel Adm. 2018, 2018-23 (2014)(chronicling state efforts to give managers more flexibility in discharging public employees); R. Paul Battaglio, Jr., Public Service Reform and Motivation: Evidence From an Employment At-Will Environment, 30 Rev. of Pub. Personnel Adm. 341, 341-45 (2010)(same). Federal mandates could also undermine “the States’ ability to use their employment relationship with their citizens as a tool for pursuing social and economic policies beyond their immediate managerial goals,” see EEOC v. Wyoming, 460 U.S. 226 (1983) (discussing National League of Cities v. Usery, 426 U.S.  833, 848 (1976)).  But individual arguably-pretextual decisions to discharge public employees on the basis of age (or some other prohibited characteristic) do not pose the same level of danger to state and local sovereignty.

If the Gregory/BFP rule applies, any acknowledgement that the ADEA’s numerosity provision is ambiguous has significant consequences — that very ambiguity, in light of the clear statement canon, virtually compels the conclusion that the numerosity element applies.  Of course, the Seventh Circuit rendered its decision long before Gregory v. Ashcroft and BFP v. Resolution Trust Corp. clearly announced the applicable “plain statement” canon.  None of the decisions following Kelly appear to have discussed such plain statement rules, neither did the Ninth Circuit do so in its ruling.  The EEOC’s influential amicus brief in Guido also failed to discuss the “plain statement” rule.

But what of the legislative history?  Might it be sufficiently decisive to overcome the plain statement presumption, at least for jurists willing to consult such materials?  The EEOC provides a summary of the ADEA’s legislative history in the amicus brief the agency filed in Guido, Brief of the Equal Employment Opportunity Commission as Amicus Curiae in Support of Plaintiffs-Appellants and Reversal, Guido v. Mount Lemmon Fire District, 859 F.3d 1168 (9th Cir. 2017), accessible at, 2015 WL 3442450.  Senator Lloyd Bentsen proposed expansion of the ADEA to government entities and smaller employers in 1972.  The amendments Senator Bentsen sought were finally enacted as part of a bill that made a number of changes to the Fair Labor Standards Act of 1938 (FLSA).  Fair Labor Standards Amendments of 1974, Pub.L. 93–259, §28(A)(1), 88 Stat. 55 (1974).  But given that “the breadth and significance of the amendments to the FLSA overshadowed the ADEA amendment,” little of the legislative record is focused on the amendments to the ADEA.  EECO Br. At 21 (quoting EEOC v. Elrod, 674 F.2d 601, 605 (7th Cir. 1982)).  It is perhaps noteworthy that the FSLA contains no numerosity requirement for public or private employers, given that the amendment to the ADEA was described as a “logical extension of the Committee’s decision to extend FLSA coverage to Federal, state and local governmental employees.” H.R. Rep. No. 93-913, 93d Cong., 2d. Sess. 40 (1974), reprinted in, 1974 U.S.C.C.A.N. 2811, 2812; S. Rep. No. 93-690, 93d Cong., 2d. Sess. at 55 (1974).

The legislative history is somewhat contradictory.  It suggests that public employers were to be “model employers,” EEOC Br. at 18 (quoting Sen. Bentsen a sponsor of the ADEA amendments during discussion of a prior version of the bill).  The “model employer” conception supports the argument that a numerosity requirement should not apply.  At the same time the legislative history includes statements that the amendment “‘insures that Government employees will be subject to the same protections against arbitrary employment [discrimination] based on age as are employees in the private sector.’ ” EEOC Br. at 22 (referencing 120 Cong. Rec. 8768 (1974)).  That statement suggests that Congress intended to apply the same standards applicable to private employers, including the numerosity requirement, to public ones.

In short, I suspect that the Justices will have occasion to debate the applicability of the Gregory/BFP clear statement rule.  I also suspect that the apparent clarity of the language and the seeming unexplained failure to extend the numerosity requirement to public employers will pull the Justices in different directions, even given the possible applicability of the clear-statement-rule-based interpretive presumption.

My next post will take a different perspective, discussing whether the numerosity requirement should apply to public entities that employ twenty or few people.