No

Table of Authorities

Page(s)

Cases

Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001)........................ 4

Carcieri v. Salazar, 555 U.S. 379 (2009).................................................... 5, 16

Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102 (1980) 5, 17

Crawford v. Metro. Gov. of Nashville & Davidson Cty., 555 U.S. 271 (2009)... 6

EEOC v. Bd. of Supervisors for the Univ. of La. Sys.,

559 F.3d 270 (5th Cir. 2009)....................................................................... 4

EEOC v. Elrod, 674 F.2d 601 (7th Cir. 1982)................................................ 21

EEOC v. Monclova Twp., 920 F.2d 360 (6th Cir. 1990)............................... 3, 8

EEOC v. Wyoming, 460 U.S. 226 (1983).......................................................... 8

Federal Express v. Holowecki, 552 U.S. 389 (2008)........................................ 12

Garcia v. United States, 469 U.S. 70 (1985)............................................... 17, 22

Gross v. FBL Financial Servs., Inc., 557 U.S. 167 (2009)......................... 12, 15

Holloway v. Water Works & Sewer Bd. of the Town Vernon, 24 F. Supp. 3d 1112 (N.D. Ala. 2014)................................................................................................... 10, 11, 17

Johnson v. Mayor & City Council of Baltimore, et al., 472 U.S. 353 (1985)...... 7

Kelly v. Wauconda Park District, 801 F.2d 269 (7th Cir. 1986)............... passim

Kimel v. Florida Board of Regents, 528 U.S. 62 (2008).................................... 4

Meacham v. Knolls Atomic Power Labs, 554 U.S. 84 (2008)............................ 9

Negusie v. Holder, 555 U.S. 511 (2009)............................................................ 5

Palmer v. Arkansas Council on Econ. Educ., 154 F.3d 892 (8th Cir. 1998).. 3, 8

TABLE OF AUTHORITIES (cont’d)

Ratzlaf v. United States, 510 U.S. 135 (1994).............................................. 5, 16

Univ. of Texas S.W. Med. Ctr. v. Nassar, 133 S.Ct. (2013)........................ 12, 13

West Virginia v. United States, 479 U.S. 305 (1987)......................................... 4

Young v. United Parcel Serv., Inc., 135 S. Ct. 1338 (2015)............................... 7

Statutes

29 U.S.C. § 203(d).......................................................................................... 22

29 U.S.C. § 621................................................................................................ 1

29 U.S.C. § 623(a)............................................................................................ 4

29 U.S.C. § 630(a)................................................................................... passim

29 U.S.C. § 630(b)................................................................................... passim

42 U.S.C. § 2000e(a)................................................................................ 13, 14

42 U.S.C. § 2000e(b)................................................................................ 13, 14

42 U.S.C. § 2000e-2(m).................................................................................. 12

The Age Discrimination in Employment Act of 1967, Pub. L. 90-202, § 701, 81 Stat. Ann. 602 (amended 1974).......................................................................... 14

Title VII of the Civil Rights Act of 1964, Pub. L. 88-352, § 11, 78 Stat. 241 (amended 1972).......................................................................................................... 13

Rules and Regulations

Fed. R. App. P. 29(a)........................................................................................ 1

Other

American Heritage Dictionary 53 (4th ed. 2006).............................................. 7

Webster’s Third New International Dictionary 62 (3d ed. 1993)...................... 7

TABLE OF AUTHORITIES (cont’d)

S. Rep. No. 93-690, 93d Cong. (1974)..................................................... 19, 21

H. Rep. No. 93-913, 93d Cong. (1974), reprinted in 1974 U.S.C.A.A.N. 2811.................................................................................... 21

118 Cong. Rec. 7745 (1972)........................................................................... 18

118 Cong. Rec. 15894 (1972)......................................................................... 19

120 Cong. Rec. 8768 (1974)........................................................................... 19

Senate Special Committee on Aging, 93d Cong., Rep. on Improving the Age Discrimination Law (Comm. Print 1973)................................................... 19

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission (“EEOC”) is the agency charged by Congress with interpreting, administering, and enforcing various federal laws prohibiting employment discrimination, including the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621 et seq. This appeal raises an important legal question of first impression in this circuit: whether by its plain language the ADEA’s definition of “employer” at 29 U.S.C. § 630(b) includes political subdivisions of any size. Because resolution of this issue will affect the EEOC’s enforcement of the ADEA as well as the ability of private parties to enforce their federal civil rights, the Commission offers its views to the Court. See Fed. R. App. P. 29(a).

STATEMENT OF THE ISSUE[1]

Whether by its plain language the ADEA’s definition of “employer” in 29 U.S.C. § 630(b) includes political subdivisions of any size.

STATEMENT OF THE CASE

A. Statement of the Facts

Plaintiffs John Guido and Dennis Rankin began working in 2000 for Defendant Mount Lemmon Fire District (MLFD), a political subdivision in the state of Arizona. ER2-3. The plaintiffs were Firefighter EMTs and rose to the rank of Captain. ER2. In 2009, they were laid off. ER2. At the time, Guido was forty-six years old and Rankin was fifty-four years old. ER2. The plaintiffs filed charges alleging age discrimination. ER2. The EEOC issued letters of determination finding reasonable cause to believe their discharges were due to age discrimination. ER65-ER68.

The plaintiffs later filed suit under the ADEA alleging discriminatory termination. MLFD filed a motion for summary judgment arguing that it is not an “employer” under the ADEA because it is a political subdivision with fewer than twenty employees. ER3. The plaintiffs argued that the twenty-person requirement does not apply to political subdivisions and that even if it does, MLFD satisfies the twenty-person requirement with reserve/seasonal and volunteer firefighters. ER3, ER6.

B. District Court Decision

The district court agreed with MLFD that the twenty-person requirement of 29 U.S.C. § 630(b) applies to political subdivisions as well as to private employers. ER3-5. In reaching this conclusion, the district court quoted at length from the Seventh Circuit’s decision in Kelly v. Wauconda Park District, 801 F.2d 269 (7th Cir. 1986), which held that the statute was ambiguous but that the legislative history made clear that Congress intended to apply the twenty-employee minimum to political subdivisions. The district court noted that both the Eighth and Sixth Circuits later agreed with Kelly. ER5 (citing Palmer v. Arkansas Council on Econ. Educ., 154 F.3d 892 (8th Cir. 1998), and EEOC v. Monclova Twp., 920 F.2d 360 (6th Cir. 1990)). Finding this circuit authority persuasive, the district court concluded that the twenty-person requirement applies to political subdivisions. ER5. The district court went on to hold that MLFD did not employ more than twenty employees, and the district court therefore granted summary judgment. ER6-14.

ARGUMENT

The plain language of the ADEA defines “employer” in 29 U.S.C. § 630(b) as including political subdivisions of any size.

The ADEA prohibits “an employer” from discriminating against an employee because of age. 29 U.S.C. § 623(a). The statute further defines “an employer” to include private employers with a minimum of twenty employees. 29 U.S.C. § 630(a)-(b). In 1974, Congress expanded the definition of “employer” by adding a sentence to 29 U.S.C. § 630(b) stating that “employer” “also means” “a State or political subdivision of a State and any agency or instrumentality of a State . . . .”[2] This case raises the issue of whether political subdivisions of any size are an “employer” under the ADEA, or whether the twenty-employee minimum requirement that applies to private employers also applies to political subdivisions. The district court held that it does, but the court’s conclusion contravenes the plain language of § 630(b). The Commission therefore urges this Court to adopt the EEOC’s longstanding view of § 630(b) as defining “employer” to include political subdivisions of any size.

A. The plain language of § 630(b) makes clear that the twenty-employee requirement does not apply to political subdivisions.

“As with all statutory interpretation questions,” analysis “begin[s] with the plain language of the statute.” Negusie v. Holder, 555 U.S. 511, 542 (2009); see Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980) (“We begin with the familiar canon of statutory construction that the starting point for interpreting a statute is the language of the statute itself.”). If the “statutory text is plain and unambiguous[,]” a court “must apply the statute according to its terms.” Carcieri v. Salazar, 555 U.S. 379, 387 (2009); see also Ratzlaf v. United States, 510 U.S. 135, 147-48 (1994) (“[W]e do not resort to legislative history to cloud a statutory text that is clear.”).

Here, the statutory text is plain and unambiguous, requiring that the statute be applied according to its terms. The ADEA prohibits “an employer” from discriminating based on age. 29 U.S.C. § 623(a). The statute defines “person” in § 630(a) as an individual, partnership, association, labor organization, corporation, business trust, legal representative, or any organized group of persons. 29 U.S.C. § 630(a). The next provision, § 630(b), supplies the definition of “employer.” It states:

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 political subdivision of a State, and any interstate agency . . . .

29 U.S.C. § 630(b) (emphasis added).

The plain reading of § 630(b) establishes three separate categories of “employer.” The first sentence of § 630(b) defines one category of “employer[s]” as consisting of “person[s]” engaged in an industry affecting commerce with twenty or more employees. Because § 630(a), in turn, defines “person” as including individuals, partnerships, associations, labor organizations, corporations, and other entities—but not states or political subdivisions—this first category on its face does not encompass states or political subdivisions. The second sentence of § 630(b) sets out two additional categories of employers by stating that “the term [employer] 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 . . . .” 29 U.S.C. § 630(b)(1)-(2) (emphasis added). Because the term “also” was “left undefined by statute, [it] carries its ordinary meaning.” Crawford v. Metro. Gov. of Nashville & Davison Cty., 555 U.S. 271, 276 (2009) (looking to the dictionary definition of the term “oppose” when interpreting Title VII’s anti-retaliation provision). The dictionary defines “also” to mean “in addition; besides” and “likewise; too.” American Heritage Dictionary 53 (4th ed. 2006); see also Webster’s Third New International Dictionary 62 (3d ed. 1993) (defining “also” as “in the same manner as something else: likewise” and “in addition: as well”). Because “also” means “in addition to,” the plain reading of the statute therefore is that what follows added to the previous definition—rather than clarified it, as the district court erroneously held below. See Young v. United Parcel Serv., Inc., 135 S. Ct. 1338, 1357 (2015) (Alito, J., concurring) (finding that a clause in the Pregnancy Discrimination Act preceded by “and” did not merely explain the meaning of pregnancy discrimination as defined in the first clause but instead “adds to the language” by imposing additional employer restrictions).

This plain language reading of the text is further supported by statements the Supreme Court has made about the statute. To be sure, the Supreme Court has not explicitly addressed the issue of whether the twenty-person minimum employee requirement of § 630(b) applies to political subdivisions. However, statements the Court has made suggest that it views the plain language of § 630(b) as defining “employer” to include political subdivisions without regard to the number of employees they have. See Johnson v. Mayor & City Council of Baltimore et al., 472 U.S. 353, 356 (1985) (stating that “in 1974 Congress extended coverage to Federal, State, and local Governments, and to employers with at least twenty workers”) (emphasis added); EEOC v. Wyoming, 460 U.S. 226, 233 (1983) (observing that “[i]n 1974, Congress extended the ADEA’s protection to employers having at least 20 workers, and to the Federal and State governments”) (emphasis added).

Given the statute’s unambiguous language, the district court erred below in relying on Kelly, 801 F.2d 269, Monclova, 920 F.3d 360, and Palmer, 154 F.3d 892, to hold that “the statute is ambiguous.” ER5. It is not ambiguous; it is clear. A contrary conclusion can be reached only by failing to accord “also” its ordinary meaning of “in addition to.” Essentially, the district court’s reading of the statute—like that of the circuit decisions it followed—transforms the word “also” in the second sentence of § 630(b) into “includes,” thereby rendering the second sentence a mere clarification of the term “employer” as defined in the first sentence. But the statute does not use “include,” it uses “also.” Neither the district court, nor the courts it relies upon, offers any cogent explanation for why “also” does not carry its ordinary meaning of “in addition to.” The district court’s interpretation of the statute therefore cannot be squared with the statute’s plain language.

The Kelly court’s reasoning was also flawed in other respects, making the district court’s reliance on it misplaced. In Kelly, the Seventh Circuit conceded that it is “fair and reasonable” to read § 630(b) as setting out political subdivisions as a separate category of employers not subject to the twenty-person limitation. Kelly, 801 F.2d at 270. But the Kelly court nevertheless concluded that the plaintiff had “weaken[ed]” his plain language argument by contending that “‘common sense’ and congressional intent” supported it. Id. The court’s reasoning is illogical. The mere suggestion by a party that common sense and legislative intent might support the plain reading of an unambiguous statute does not render that plain meaning ambiguous.

The Kelly court also held that § 630(b) was ambiguous because Congress could have intended through its amendment of the statute in 1974 merely to clarify that political subdivisions “are to be included in the definition of ‘employer,’ as opposed to being a separate definition.” Id. at 271 (emphasis in original). This is not a persuasive reason to deviate from the plain meaning of § 630(b), however, as this reasoning rests impermissibly on the court’s own speculation about what Congress might have intended rather than on the text itself. See Meacham v. Knolls Atomic Power Lab., 554 U.S. 84, 102 (2008) (“We have to read [the ADEA] the way Congress wrote it.”). As discussed above, § 630(b) does not say that the term employer “includes” political subdivisions; to the contrary, § 630(b) states unambiguously that the term employer “also means” political subdivisions, and Congress provided no minimum employee requirement for these entities. Moreover, as discussed, infra at Section B, had Congress intended merely to clarify that states and political subdivisions are “employers” under the ADEA, the best, and clearest, way to do this would have been to add states and political subdivisions to the definition of “person” in § 630(a), as Congress did in 1972 when it amended the parallel provision of Title VII.

Rather than adopt the flawed reasoning of Kelly and its progeny, the district court should have looked instead to the more recent decision in Holloway v. Water Works & Sewer Board of the Town of Vernon, 24 F. Supp. 3d 1112 (N.D. Ala. 2014). In that case, the district court held that the language of § 630(b) “is clear” and subject to “only one reasonable meaning”: that the second sentence of § 630(b) “means that, in addition to those employers who meet the definition in the first sentence, ‘a State or politicial subdivision of a State and any agency or instrumentality of a [S]tate or a political subdivision of a [S]tate’ are also employers, regardless of how many employees they have.” Id. at 1117 (emphasis added). Having determined that the statute was clear, the district court therefore held that “no recourse to legislative history is necessary or proper.” Id. Accordingly, the court declined to follow Kelly, Monclova Township, and Palmer. Id. at n.3 (stating it was unnecessary to consider the discussion of legislative history in those cases “[b]ecause the Court finds that the statute is not ambiguous”). Applying its holding to the case before it, the Holloway court held that the defendant—which was an agency or instrumentality of the political subdivision of the Town of Vernon—satisfied the ADEA’s definition of “employer” although it had fewer than twenty employees. Id. at 1117.

Thus, as the Holloway court found, the text of § 630(b) is plain and unambiguous: it defines “employer” to include political subdivisions without regard to the minimum employee requirement that applies to private employers.

B. Comparison to the parallel provision of Title VII supports the conclusion that the twenty-employee requirement of § 630(b) does not apply to political subdivisions, further undermining Kelly.

Although the district court did not consider it, the Seventh Circuit’s decision in Kelly also rested on that court’s reasoning that the ADEA and Title VII should be interpreted in pari materia because of their similar objectives and legislative histories. Kelly, 801 F.2d at 271. After noting that that Title VII’s fifteen-employee minimum of 42 U.S.C. § 2000e(b) indisputably applies to political subdivisions under 42 U.S.C. § 2000e(a), the Kelly court concluded that the ADEA should be interpreted the same way. Id. The Seventh Circuit reached this conclusion despite its candid concession that “Congress used different language in the two statutes” when amending them to expand coverage to include political subdivisions. Id. at 272. The court’s analysis in Kelly is flawed and should not be adopted by this Court for two reasons.

First, whatever the merits of Kelly’s reasoning in 1986, it cannot be reconciled with recent Supreme Court cases emphasizing repeatedly that rules from one anti-discrimination statute cannot be mechanically applied to the other statute; rather, it is the text of the ADEA and Title VII that determines each statute’s proper interpretation. In Gross v. FBL Financial Services, Inc., 557 U.S. 167, 174 (2009), for instance, the Supreme Court held that the ADEA does not provide for a motivating-factor framework because Congress “neglected to add such a provision to the ADEA when it amended Title VII” to add the motivating-factor language of 42 U.S.C. § 2000e-2(m). Similarly, in Federal Express Corp. v. Holowecki, 552 U.S. 389, 393 (2008), which was an ADEA case involving the question of whether intake questionnaires can constitute discrimination charges, the Supreme Court warned at the outset of its opinion that courts “must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination.” In accord with Gross and Holowecki, the Supreme Court has also recently stressed that a statute’s text is paramount even when interpreting disparate provisions within the same anti-discrimination statute. See Univ. of Tex. S.W. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2528-29 (2013) (emphasizing that proper interpretation of Title VII is guided by the “plain language” and that “Congress’ choice of words is presumed to be deliberate”). Thus, the Kelly court erred—particularly when considered under the lens of recent Supreme Court precedent—in holding that it would not let the “different language in the two statutes” get in the way of what it viewed as evidence that Congress intended the ADEA amendments of 1974 to parallel the Title VII amendments of 1972.

The second error the court made in Kelly was in its interpretation of the legislative history leading up to the amendments to the two statutes. Contrary to the court’s conclusion in Kelly, that legislative history confirms, rather than refutes, the conclusion that § 630(b) expanded coverage to political subdivisions without regard to the employee-minimum requirement. That is so because the history shows that Congress chose to utilize different language when amending the ADEA to include political subdivisions than it used two years earlier when it amended Title VII to expand coverage to only those political subdivisions with fifteen or more employees. See Nassar, 133 S.Ct. at 2528-29 (stating that “Congress’ choice of words is presumed to be deliberate”).

Specifically, prior to the 1972 amendments to Title VII and the 1974 amendments to the ADEA, Title VII and the ADEA defined “employer” in virtually identical ways. Title VII originally defined “employer” at 42 U.S.C. § 2000e(b) as “a person engaged in an industry affecting commerce” with twenty-five or more employees but not “the United States, a corporation wholly owned by the Government of the United States, an Indian tribe, or a State or political subdivision thereof . . . .” See Title VII of the Civil Rights Act of 1964, Pub. L. No. 88–352, § 701, 78 Stat. 241, 253-54 (amended 1972). “Person” was originally defined in Title VII as, inter alia, an individual or corporation. 42 U.S.C. § 2000e(a). The original version of the ADEA was similar: § 630(b) defined “employer” as a person engaged in interstate commerce with twenty-five or more employees and stated that “[t]he term also means any agent of such a person, but such terms does not include the United States . . . . or a State or political subdivision thereof.” Age Discrimination in Employment Act, Pub. L. 90-202, § 11, 81 Stat. 602, 605 (amended 1974). Like Title VII’s §2000e(a), § 630(a) of the ADEA also defined “person” as, inter alia, an individual or corporation. Thus, the statutes were very much alike in defining “employer” and in their exclusion of “a State or political subdivision” from the definition.

Despite these similarities, Congress opted in 1972 to amend only Title VII, and it did so in a very specific way. Congress deleted from § 2000e(b)’s definition of “employer” the exclusion for states and political subdivisions, and added “governments, governmental agencies, [and] political subdivisions” to the definition of “person” in § 2000e(a). Because “employer” under § 2000e(b) is defined as “a person” in § 2000e(a), this amendment made crystal clear that states and political subdivisions are subject to the minimum-employee requirement of § 2000e(b).

Two years later, however, Congress amended the ADEA in a markedly different way when it expanded the statute’s coverage to include political subdivisions. In contrast to its amendment to Title VII, Congress did not add “governments, governmental agencies, [and] political subdivisions” to the ADEA’s definition of “person,” which would have made political subdivisions unquestionably subject to the minimum-employee limitation of § 630(b). Rather, in amending the ADEA, Congress chose to delete the language in the last sentence of § 630(b) excluding “a State or political subdivision thereof” from the definition of “employer” and to add that the term employer “also means” “a State or political subdivision of a State,” without qualifying this addition by reference to the twenty-person requirement of the first sentence. 29 U.S.C. § 630(b). “When Congress amends one statutory provision but not another, it is presumed to have acted intentionally.” Gross, 557 U.S. at 174. Congress is therefore presumed to have acted intentionally when it chose not to amend § 630(a) by adding governments and political subdivisions to the definition of “person,” as it had for Title VII. The Kelly court ignored this intentional textual difference, and the court thus erred. To be sure, as the Kelly court observed, Congress had a similar objective in mind when it amended Title VII and the ADEA—to expand coverage to include public employers—but that shared objective cannot trump Congress’ decision to amend the statutes in decidedly different ways. See Gross, 557 U.S. at 174 (“We cannot ignore Congress’ decision to amend Title VII’s relevant provisions but not make similar changes to the ADEA.”).

Admittedly, nothing in the legislative history speaks directly to why Congress wanted to expand coverage under Title VII to only those political subdivisions with fifteen or more employees but wanted to expand coverage under the ADEA to all political subdivisions, regardless of size. But the legislative history’s silence on this point does not justify overriding the plain language of § 630(b), especially in light of the fact that Congress opted to take a different path in 1974 when it amended the ADEA, just two years after it amended Title VII. Thus, contrary to the reasoning of Kelly, on which the district court heavily relied, the legislative history of the ADEA amendments vis-à-vis Title VII’s parallel provision supports the plain reading of § 630(b) as defining “employer” to “also” include political subdivisions, without the twenty-employee constraint of the first sentence of the provision.

C. The legislative history supports, or at least does not override, the plain language interpretation of § 630(b) as covering all political subdivisions.

As discussed above, the text of § 630(b) is plain and unambiguous. The district court, and the Kelly court, therefore erred in turning to the statute’s legislative history to interpret its text. See Carcieri, 555 U.S. at 387 (stating that if the “statutory text is plain and unambiguous[,]” a court “must apply the statute according to its terms”); Ratzlaf, 510 U.S. at 147-48 (“[W]e do not resort to legislative history to cloud a statutory text that is clear.”); Holloway, 24 F. Supp. 3d at 1117 (stating that “no recourse to legislative history is necessary or proper” because the text of § 630(b) states clearly that states and political subdivisions and their agencies or instrumentalities “are also employers, regardless of how many employees they have”).

But even if the legislative history of § 630(b) were relevant, no “clearly expressed legislative intention” exists to contravene the plain meaning of the statute. Consumer Prod. Safety Comm’n, 447 U.S. at 108 (“Absent a clearly expressed legislative intention to the contrary, th[e plain] language must ordinarily be regarded as conclusive.”); see also Garcia v. United States, 469 U.S. 70, 75 (1985) (stating that where the statutory language is unambiguous, “only the most extraordinary showing of contrary intentions from [legislative history] would justify a limitation on the ‘plain meaning’ of the statutory language”). As discussed above, the specific history of the 1974 amendments to the ADEA vis-à-vis the 1972 amendments to Title VII supports the conclusion that § 630(b) does not make the twenty-employee requirement applicable to political subdivisions, since Congress opted to use such different language in amending the ADEA than it did when it amended Title VII. The remaining legislative history that exists as to the ADEA’s amendment also supports this conclusion or, at a minimum, does not refute it.

The legislative history of the 1974 amendment to the ADEA is sparse. As originally enacted in 1967, the ADEA did not apply to states or political subdivisions or to the federal government (or to employers with fewer than twenty-five employees). In March 1972, Senator Bentsen introduced legislation to address this gap by extending the ADEA to government employees. 118 Cong. Rec. 7745 (1972). Senator Bentsen observed that the ADEA as enacted “specifically exempted employees of Federal, State, and local governments” and stated that in his view, “that exemption is unsupportable.” 118 Cong. Rec. 7745. He stated that “there is mounting evidence that employees of Federal, State, and local governments” were pressuring older workers to retire or were refusing to hire them because of their age. Id. Senator Bentsen added that “Federal, State, and local governments should be model employers.” Id. Accordingly, Senator Bentsen proposed amending § 630(b) to state that the term employer “also” means “a State or political subdivision.” 118 Cong. Rec. 7746. This history, then, suggests, an intent to cover government employers, irrespective of the number of employees.

Despite Senator Bentsen’s entreaties, Congress did not pass the ADEA amendment. However, in March 1972 Congress did pass amendments to Title VII, 42 U.S.C. § 2000e, that expanded coverage to state and local government employees. Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, 86 Stat. 103 (March 24, 1972). Two months later, in May 1972, Senator Bentsen again presented his proposed ADEA amendment. 118 Cong. Rec. 15894 (1972). In introducing the proposed amendment, Senator Bentsen reiterated his remarks from two months earlier in which he stated that the ADEA’s exemption for government employers “is unsupportable.” 118 Cong. Rec. 15895 (1972). He further stated:

In the recent debate on the EEOC amendment, the Senate overwhelmingly approved including Federal, State, and local employees under the provisions of title VII of the Civil Rights Act. The committee report said, page 9: the Committee believes the employees of State and local governments are entitled to the same benefits and protections in equal employment as the employees in the private sector of the economy.

***

I believe that the principles underlying these provisions in the EEOC bill are directly applicable to the [ADEA].

Although the Senate voted in favor of the ADEA amendment, the amendment failed to survive House-Senate conference committees. S. Rep. No. 93-690, at 55 (1974); 120 Cong. Rec. 8768 (1974) (remarks of Sen. Bentsen).

The following year, the Senate Special Committee on Aging issued a report entitled Improving the Age Discrimination Law (1973), which the Kelly court noted in its discussion of the legislative history. Kelly, 801 F.2d at 271-72 (discussing the Senate Special Comm. on Aging, 93d Cong., Rep. on Improving the Age Discrimination Law 14 (Comm. Print 1973)). Contrary to the court’s conclusion in Kelly, nothing in this report evinces a legislative intention to limit “employer” to political subdivisions with twenty or more employees; if anything, studious review of the report suggests that Congress intended to cover all political subdivisions.

Part three of the report sets out a proposal to improve the ADEA; section II is labeled “EXTEND COVERAGE” and contains three paragraphs. Id. at 17-18. The first paragraph notes, inter alia, that “Federal, state and local government employers are not covered” by the ADEA and that it is “difficult to see why one set of rules should apply to private industry and varying standards to government.” Id. at 17. This paragraph also states that a proposed amendment to the Fair Labor Standards Act (FLSA) would have “brought government employees under the ADEA” but was eliminated in conference. Id. The next, separate, paragraph discusses a failed amendment that would have lowered the minimum employee requirement from twenty-five to twenty employees. Id. at 18. Finally, the third paragraph states that a “major cause” of the persistence of age discrimination is the gap in coverage; the report therefore “urge[s] that the law be extended . . . to include (1) Federal, State, and local governmental employees, and (2) employers with 20 or more employees.” Id.

The fact that the report sets out two distinct extensions of coverage (one for government employees, and one for employers with twenty or more employees) is telling. Had the report intended to recommend merely adding governments to the definition of employer and to subject them to the same minimum-employee requirement applicable to private employers, the report could have urged extending the law to “include within the definition of ‘employer’ Federal, State, and local governments.” But the report did not urge that; rather, it recommended adding governments as their own category of employer and separately extending the law by reducing the minimum-employee threshold for private employers from twenty-five to twenty.

A year later, in 1974, the ADEA amendment finally passed as part of a bill that made a number of changes to the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. §§ 201 et seq., including extension of the FLSA to federal, state, and local employees. H. R. Rep. No. 93-913, at 41 (1974), reprinted in 1974 U.S.C.C.A.N. 2811, 2812. It is because “the breadth and significance of the amendments to the FLSA overshadowed the ADEA amendment” that “[l]ittle legislative history exists on the ADEA amendment.” EEOC v. Elrod, 674 F.2d 601, 605 (7th Cir. 1982). The bill was described as amending the ADEA “to include within the scope of its coverage Federal, State, and government employees . . . , and to expand coverage from employers with 25 or more employees to employers with 20 or more employees.” H. R. Rep. No. 93-913, at 40 (1974), reprinted in 1974 U.S.C.C.A.N. 2811, 2812 (emphasis added). Further, the amendment was described as a “logical extension of the Committee’s decision to extend FLSA coverage to Federal, state and local governmental employees.” Id. S. Rep. No. 93-690, 93d Cong. at 55 (1974). The FLSA, however, has no minimum number of employees in its statutory definition of “employer.” 29 U.S.C. § 203(d). Therefore, it can be logically inferred that Congress also intended to extend ADEA coverage to all states and political subdivisions, regardless of the number of employees, just as Congress had extended FLSA coverage to government employers, regardless of the number of employees. At a minimum, it is clear that the Committee Reports to the 1974 ADEA amendment are devoid of any specific evidence that the drafters intended to apply the twenty-person limit to states and political subdivisions. Given that Committee Reports on a bill provide the “authoritative source” for discerning Congressional intent, Garcia, 469 U.S. at 76, this omission is critical.

To be sure, as the Kelly court noted, following enactment of the 1974 ADEA amendment, Senator Bentsen stated that passage of 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.’” Kelly, 801 F.2d at 272 (quoting 120 Cong. Rec. 8768 (1974)). This generic statement, however, does not support the conclusion that § 630(b) means anything other than what it states. Nothing in Senator Bentsen’s remarks touches upon the twenty-person requirement or suggests it applies to political subdivisions, and certainly it does not clearly evince a legislative intent to protect only those employed by political subdivisions with twenty or more employees. Rather, Congress’ concern was with addressing the lack of any protection afforded employees of states and political subdivisions. If anything, Senator Bentsen’s 1972 remarks about how governments should be “model” employers and his observation that the White House Conference on Aging report recommended that the ADEA “‘be expanded to cover all employees in both private and public sectors’” suggest that Congress intended to cover all government employers, irrespective of the number of employees, out of a desire to hold the government to a higher standard and to set an example for the nation. 118 Cong. Rec. 7745—46 (1972) (citation omitted).

CONCLUSION

For the reasons discussed above, the Commission urges this Court to hold that the twenty-person requirement of § 630(b) does not apply to political subdivisions and to therefore reverse the entry of summary judgment in favor of MLFD.

Respectfully submitted,

P. DAVID LOPEZ General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

/s/ Anne Noel Occhialino

ANNE NOEL OCCHIALINO Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St. NE, 5^th Fl.

Washington, D.C. 20507

(202) 663-4724

Annenoel.Occhialino@EEOC.gov

[1] The Commission expresses no opinion on any other issue presented.

[2] Although the Supreme Court subsequently held that states are immune under the Eleventh Amendment from ADEA suits brought by individuals for monetary damages, Kimel v. Florida Board of Regents, 528 U.S. 62 (2008), the states are not immune from ADEA suits brought by the EEOC. See West Virginia v. United States, 479 U.S. 305, 311 (1987) (“States have no sovereign immunity as against the Federal Government”); EEOC v. Bd. of Supervisors for the Univ. of La. Sys., 559 F.3d 270, 272 (5th Cir. 2009) (holding that Kimel does not bar EEOC’s suit under the ADEA against state employers). The Eleventh Amendment’s immunity “does not extend to units of local government” “such as cities and counties,” Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 368-69 (2001), meaning that both private individuals and the EEOC can sue local governments under the ADEA.