Nothing but a Number: Age-Based Employment Discrimination After Mount Lemmon

The Federal Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. (ADEA), prohibits discrimination by employers against, and harassment of, employees and applicants age 40 or older on the basis of age.

Recently, the U.S. Supreme Court held that all state and local governments, regardless of how small, are “employers” bound by the ADEA, see Mount Lemmon Fire Department v. Guido, 586 U.S. ___ (2018).

In affirming an earlier 2017 decision of the 9^th Circuit, the Supreme Court overruled the precedent set by four other federal circuits dating back to 1986, which held that the ADEA did not apply to small local governments with less than 20 employees.

Interestingly, the federal circuit courts’ limited interpretation of the definition of “employer” in 29 U.S.C. 630(b) was inconsistent with the U.S. Equal Employment Opportunity Commission (EEOC), which has jurisdiction to investigate complaints of ADEA violations. The result was that the EEOC would investigate such complaints involving all local government employers, regardless of size, but employees of local governments with less than 20 employees were barred from seeking relief under the ADEA in federal courts.

What does this mean for Washington’s small local governments?

Washington’s Law Against Discrimination (WLAD), Chapter 49.60 RCW, also prohibits age-based discrimination against, and harassment of, employees and applicants age 40 or older. The WLAD authorizes the Washington Human Rights Commission (HRC) to investigate age-based employment discrimination complaints.

Unlike the federal ADEA, the definition of “employer” under the WLAD is limited to employers of at least eight employees, see RCW 49.60.040(11) and (19). This means that if a local government employer has less than eight employees, a person cannot make a complaint under WLAD to the HRC.

However, all local government employees, regardless of the size of the employer, have a state court cause of action for age-based discrimination as an unfair employment practice under RCW 49.44.090 (see Bennett v. Hardy (1990) 113 Wn.2d 912, 784 P.2d 1258). This is because the Washington Supreme Court found that the limited definition of “employer” under the WLAD in Chapter 49.60 RCW did not extend to the definition of “employer” for unfair employment practice claims under RCW 49.44.090.

Prior to Mount Lemmon, this meant that employees of local governments with less than eight employees had an unusual mix of potential venues to bring a claim. Such employees could ask the EEOC to investigate an age-based violation of the ADEA but could not reach the federal court under the ADEA. Meanwhile, the same employees could not ask the HRC to investigate an age-based violation of the WLAD, but they could reach state court under RCW 49.44.090.

Now, after the Mount Lemmon decision, all employees of local governments, regardless of size, have access to both state and federal courts to make claims of age-based employment discrimination under state and federal law.

Take away: Washington’s small local governments are now liable in court for age-based employment discrimination under the ADEA. Due to rules of federal court procedure, if a person brings a state-based claim in state court, that person will likely be able to either add on the federal claim to the same state court case or just bring a separate action in federal court.

Summary of Age Discrimination Laws Applying to Washington Local Governments, Post-Mount Lemmon

Questions? Comments?

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