tv Mount Lemmon Fire District v. Guido CSPAN November 13, 2018 3:55am-4:53am EST
i am 28 years old, this is it. q&a".nday night on " ruledpreme court unanimously prohibited age disco nation applies to state and local governments. the case centered on firefighters outside of tucson, arizona. the firefighters were laid off at 46 and 54 years old, and filed a complaint, which made its way to the high court. justice ginsburg offered the opinion. this is a little less than an hour. next, the mount lemmon fire district. ms. guido and mr. rosenkranz. >> may it please the court, the words onrt had two
employer and ignored how the second sentence relates to the first. it jumped to the second half of the sentence without considering the first half. all of this relates to the foundational definition on which the definition of employer is built. addictively, that wreaks havoc with the statutory scheme most notably by stripping public employees of crucial protections . and also by treating public employers worse than private ones in a statute whose purpose .as to bring parity to the two the brief explains the best way to read the statute is from beginning to end, but let me start in the middle. like my colleagues do with the frame that is causing mischief. respondents do not dispute that the term can have two alternative meanings.
it can mean, in addition, there is an additional universe beyond that which is defined in the first sentence, or it could mean further elaboration of the preceding definition along the lines of moreover or incorporates. how do we know which one is intended? the rest of the context makes clear and in particular there are five separate statutory signals, any one of which cushions the reading in the direction we have proposed, canons ofwo instruction, and in the interest of making sense of antidiscrimination law. >> what you say about making perhaps that should have used the formulation used in title vii. , the vii is clear
requirement goes to private and public employers. statute picks up on the act,age of the standards which has no numerous city requirement. -- numerosity requirement. perhaps congress should have done what you suggest, but by using the standards act language rather than title vii language, they want to do it title vii did in 1972. why did they use different language? the premiseart with and then turn to the question. the premise of your question is that congress used the definition.
i urge the court to look at the definition, it is on the first page of the governance statutory appendix. it is entirely different from this definition. why did congress use a different approach for title vii when everyone understood that the purpose was to mimic what title vii did? i am a chip eating rationale -- ing the rationale to someone not doing their job well, but title vii use language different from the adea. title vii began with language not as expansive about the definition of person, so here we have an extremely expansive definition of adea, or any organized groups of >> expansive in only one way.
that entire list of to the disputed any organized group of persons all apply to private entities. >> not all, your honor. corporationsayor, are cited in at least five cases. corporations includes municipal corporations. this language -- put aside those last four words -- corporations and associations -- every time this court has encountered that phraseology, it has concluded that political subdivisions are persons. it did it in rickets, it did it in city of chattanooga, it did it even without a definition in cases like monell and -- >> it is not just persons, it is organized groups of persons. it is in a list of things.
partnerships, associations, organized groups of persons. i just don't think it is a natural reading to say i belong to the city of bethesda. list the organizations you belong to. this partnership, and bethesda. >> two answers to that, your honor. even without that language, this court has found that striking this court has found that the definition before that language covers political subdivisions. city of lafayette, chattanooga, and rickets all found that. mount lemmon fire district is most earthly an organized -- -- is an organized group of persons. >> what is different between
those cases and this one is that the regional statute makes clear that that definition was not going to include states or federal government. given the sort of private nature of most of the listing and the fact that the statute on its face says that no matter what you do, it is not states or government, i would read it in its natural form and i would not included unless i'm told to otherwise. >> either to differ without the statute is structured. we start with the definition of person in subsection a. that is broad and expansive. subsection b subtracts. it says it is not the federal government. by the way, it is not states. let me back up, employer then says it is any person and 20 or more people, 20 or more employees -- and then it goes on and subtracts the federal
government, states, and local governments. it makes no sense to subtract them unless they were included. the other side has not disputed there are two possible ways to read it. our position is when you take these five statutory clues which i had only just begun to get to, the only reasonable reading is our reading. we have already talked about the persons, but there is more.
i would have started with the very first signal. does nothat also means signify an additional category of covered employers. >> if we disagree with you about the meaning of also, do you have any other argument available to you? forest at the end of the case? if we adopt the normal meaning of also. meaning in addition to. do you lose? >> no, your honor. let me just make sure -- first, this court has routinely adopted statutory constructions that defy the best dictionary -- >> that was not my question. my question is if we take the best dictionary definition, in addition to, the normal meaning, do you lose, or do you have some other available argument? i would be delighted to hear it if you do. >> so, i think we have another argument, your honor. addition. means in
it adds agents, which i will get to in a moment, is completely implausible. then what does it do in the next clause? >> you use those words a lot. you accuse the other side of allusions, contradictions, and anomalies. pretty strong language. also contortions. that is in the first page and a half of the reply brief. and i did not see and they guess i expected to see some sort of absurd results argument if we use that kind of language, but i did not see any. it made me a little concerned. >> let me of -- tell you what the absurd result is. let's start with the agents clause. the government's position is that also means necessarily at the category not otherwise covered. if that is true, who are the classic agents? employees are the classic
agents. that means employees are now directly liable under the statute for any cause of action on discrimination. >> i don't think anyone would sue an employee rather than the employer. sue an employee. does not have much in her pocket. sue the employer. it seems to be most unlikely that even if you could -- >> i disagree with you. it has happened in every circuit under title vii. employees have been sued. sometimes along with the employer. that would be disastrous. i mean, first of all, supervisor liability could stretch into the millions of dollars. >> you said it is disastrous under title vii, is it disastrous under title vii? >> sorry, your honor, i'm saying it has happened in title vii and every circuit has said, you can't do it because as this
court found in burlington, that is not what the agent clause does with the agent clause does is incorporate liability. >> that ruling was made by the majority of circuits who ruled in your favor. those circuits still have to deal with the agent meaning. byy have dealt with it addressing respondent superior liability. however they have dealt with it, your meaning does not do away with that intention. >> are meaning most certainly does, your honor. we have a complete disagreement on what the agent clause does. we believe that incorporates and superior liability. that makes the employer liable for the agent's activities. the government and respondeds say it adds another category of people who have not been previously identified as employers. anyone who is now a new employer
is subject to liability. you can tell that the agent clause causes that mischief -- >> there is no agent involved in this case, so why should the court addressed that language? an agenterm also means or such person. >> for the simple meaning that everyone has agreed and the respondents have conceded that the phrase also means has to carry the same meaning with respect to both clauses. you can't jump over one and not ask what would also means produce if you applied that to the first -- >> your argument comes back and bites you, i think, because you just said it has to be treated the same. your theory with respect to two is that it is already included in the first part of the statute. that would seem to be an argument you have to make with
respect to one. the agent is such a person is already included in the first part. so i don't see how your argument answers the problem that you used to undermine the other side's argument. >> mr. chief justice, it does for the following reasons. what does the also means clause do? it is an avoidance of doubt clause. it avoids doubt in two ways. the first is by adding that agent clause and stating that employers of the aforementioned employers, that universe, are subject to superior liability. the second clause also avoids doubt by making it clear that when you are talking about employers, those persons defined in the first sentence, you are including political subdivisions and states. but i have to emphasize that you know that the agent clause is problematic because of the extremes to which respondents go to redefine agent. they define agent to mean
third-party independent subcontractor because they cannot accept the possibility that as is clear under the common law for hundreds of years, agents, the classic agent , our employees. -- whenthe agent clause you defined the agent clause the way respondents do, you do and up with a disaster. >> in the term also means in that sentence, you agree that the term is the same term as in the first sentence? the term is employer. is that correct? >> the term is -- >> the term employer. also means. the term employer or the term person? >> i'm sorry -- >> what is the term in the second sentence? >> the term employer also means. >> it is just odd because you say that what this clause is
meant to do is to make clear that person is defined in such a way as to include subdivisions. would you are essentially doing phraseerting and -- the which says the term employer also means and converting that into the term person, just to make clear, includes. >> no, your honor, what we are doing is referring back to employer. so, the first sentence says who is an employer. who as an employer? an entity that has at least 20 employees and that affects commerce. that is a universe. in our view, the term also means clarifies that within that universe, we are doing two things. we are applying agency liability . >> the clarifying with respect
to the subdivisions would not be the fact except for that there is doubt in the person definition. that is where your doubt comes from. it comes from the fact that the person definition is not unambiguous. >> that is one of the sources of the doubt. >> what is the other source of the doubt? it is all the source of the doubt. >> there are other statutory problems that get created. >> i understand that there are anomalies, but the doubt arises from the ambiguity of the term person. that is why i'm suggesting that it would be a strange way to resolve that doubt instead of to just say, by the way, a person includes a subdivision. instead of that, to say the term employer also means a subdivision. >> understood, your honor. this is a strange statute written in a same way you this
gets to one of my other statutory clues. if you can get about the evolution of this statute, it was different then title vii. if you think about what was going on, what the editor was trying to do or if you look at redline, the is a basic point is this. the statute always had the same structure. that second sentence had two parts. the second was an exclusion. they just took part of the and moved it to the
other side of the also means sentence so now it is serving that clarifying purpose. company has 50 employees and one day they think of an idea, what we will do is set of five subsidiaries and they will hire the employees, each will hire 10, and they will be our agent and do everything that we tell them, does the statute apply? >> absolutely, your honor. xyz is liable for the acts of their agents. agency is not the subsidiary. the subsidiary is not an employer. theythe xyz corporation, set up five subsidiaries, each , ithich have 10 employees
is an agent -- yes, it is an agent of the xyz corporation, tells them what to do -- the xyz corporation has no employees, it just has five subsidiaries. >> there are two scenarios. each of the subsidiaries is liable. >> why? they each have 10 employees. >> i see what you are saying. what this court -- i would say of addresses that question -- that you cannot avoid liability by turning yourself into subsidiaries who are all your agents. >> where does it say that? >> where does manhart say that? >> where does the statute say it? it did occur to me that one purpose they could serve doing just what you said. you cannot turn yourself into five subsidiaries. that is with the subsidiary part, namely the agent part, does not have a number attached,
because they don't want to number attached. 100on't you to send up subsidiaries each with one employee and get out of this. >> let's just be clear. private entities are always covered under this statute. >> i'm not talking about public -- private entity -- the term employer -- unless i got mixed up, i don't think so -- it means a person engaged in an industry who has 20 or more employees. what i'm trying to imagine is through the use of subsidiaries there is no company that has , onethan 10 employees thing they might have wanted to agencyse the word qualification. >> there is no reason to believe
congress was ever focused on that scenario. what was before congress and what this court held as to title vii in burlington is that that language is about responding superior. let me get to the third one, a variation on the agent point. while we disagree on what the agent clause does, everyone agrees that it does something important. at a minimum, according to respondents, it up -- protects employees from the discriminate or tory -- discriminatoryacts of contractors. why did congress apply that important protection only to private employees and not to public ones? of the the consequence reading. fourth signal, affecting commerce. and what congress did with that phrase. for that -- now, i'm not making
a constitutional argument. i'm making a drafting argument. and everyone of these discrimination statutes, congress felt the need to provide an explicit commerce clause hook. it did so for private employers under the adv a --adea. it did it for all employers under title vii in the ada. one could have a constitutional debate about whether that hook was constitutionally required. i've want to simpler. congress thought it was necessary in every other context, so why would congress have left it out here? the fifth statutory clue is the statutory history. i've already described how the drafters got to where they got. let's get to look at two things. the first is how they changed 630d.nguage in
they took words that had a particular -- that were on the exclusion side -- and they moved it to the inclusion side. we have been accused of reading the statute in a way that makes that superfluous. it is not. it was absolutely essential to in the ambitis now of the statute. change. the major we don't have a red line in our brief on this one. it in our statutory appendix. the term employment agency is defined there. -- but shall not include any agency of the united states or any state or political subdivision of a state, except
such terms that shall apply. everythingossed out after the united states. the only reason to have done to includehave been state and political subdivisions. the only way that could possibly happen is if they were persons to begin with and therefore if they were persons to begin with, you flow them through a subdivision or subsection v and they are subject to the same employee limit. if the purpose was to take were already persons and subject to that clearsentence and make it that the proviso of the size never applies, that makes it very strange way to do it. if there are no further
questions, i would like to reserve the remainder of my time for rebuttal. >> thank you, counsel. mr. fisher? >> mr. chief justice and may it please the court, the plaintext of the adea makes it up loot lewdly -- absolutely clear that it covers political subdivisions of whatever size. let me start with the text and clarify one thing for the court. the statutory phrase can mean different things, but the truth is we do dispute that. is meaning of also means additive. it adds something that was not there before. the confirmation of that is found throughout the u.s. code. the 32 other instances in the u.s. code where also means appears in a definitional statute. all 32 of those phrases --
statutes use it in an additive manner. one doesn't. how do you deal with that one? >> if you are speaking of the consumer statute that my friend points to, i think it does use it in an additive manner. that is a statute where it says consumer means an individual who does certain things or the person's legal representative. person's legal representative. that is additive. this is not talking about a court of law or someone's legal representative is the alter ego of the person. >> you don't really think that with the statute meant is that the legal representative was giving his or her private information. that legaldditive representative is giving the information to
someone. it is talking about a different source in the statute. if there is one potentially ambiguous term out of 33, we will still take that. if we look at the one about elderly families, the reason that is so telling is it because it gives a qualification at the end, or is also handicapped. then it says the word also means such and such and then it repeats that phrase or is also handicapped. congress uses the word as the opposite of what my friend says you should read the statute here to do, which would carry down to . >> with this last example, the employment agency, it is either superfluous or there is a question whether a state employment agency is still
covered or not. >> i think the latter might be the case. >> it is superfluous in your reading. >> it is not superfluous in the sense that the federal government has backed out at the end in a situation where the better meeting -- reading might have been to leave them out in the first place. i think the reason why you see explicit references to the federal government is for two things. the court itself has asked congress in various ways to speak directly when it talks about federal government or states being on the hook in one form or another. secondly, the federal government is treated separately under a different regime. the federal government is put aside in all of these other provisions. i think that is what congress was doing. we submit to the court that also means is simply unambiguous. that is the end of the case,
just as the ninth circuit said it was. the court has any doubt about that, i would urge the court to look at the comparison between title vii on the one hand and the flsa on the other hand. >> if congress had enacted the ada provision on title vii, the think it is possible that congress would have said, when it comes to racial discrimination, we are not going to allow a suit against the government entity with fewer than 25 employees, but when it comes to age discrimination, we're going to include every government agency no matter how small? >> i think absolutely, justice alito. the reason why goes back to cases where the court has described the genesis of the adea. they said the adea is a hybrid. between an antidiscrimination law and a labor statute.
that is borne out in the provisions of the adea. that is quite abstract. 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 than if we do to racial discrimination? >> i think that is not exactly the way congress would have thought of it. i am going to answer your question directly, i think. you find in title vii that congress was concerned about associational interests. a concern about forcing very small groups of people to associate with individuals they might not like. that might seem antiquated when we are talking about race or race discrimination.
the purpose is to bring people into the workforce and keep them there. as the secretary of labor noted in the report, and this court discussed in eeoc versus wyoming, that was not to stamp out animus, but to reach full employment. the reason why congress might have decided public agencies on the hook on the age side and not on the race side is because it was associated -- >> is this the only federal statute that you are aware of that imposes an obligation on a small political subdivision, but does not impose the corresponding obligation on a small private employer? >> no, let me point you to two things. the other component of the adea which no one disputes covers federal governmental employers regardless of size.
as two-state and political subdivisions, you find a close-knit analogy in the flsa. my friend said that the flsa has no numeral city requirements on the private side. that is strictly speaking true. but enterprise liability under the flsa, which is the predominant form of liability depends on the employer having at least $500,000 of averse receipts per year, so you have a rough analogy in that statute to a 3 requirement. in other words, you have a firm that has to be of a certain size. justice kagan, you asked about federal. brief, the in our majority of states cover political subdivisions regardless of size. of that group, about half of them cover political subdivisions regardless of size and still have a numeral requirement for private employers. how are those statutes raised
in comparison to the statute? >> i did not hear the beginning. >> the state statute -- use in politicals include subdivisions without regard to size. is the language used similar to the language used in the adea? >> these are all collected in footnote six on page 29 of your brief. the state statutes use different language. there are only three states that had the exact same language as the adea. the vast majority have other language that makes it clear in other ways that they are distinguishing 3 terms between one and the other.
a handful of those states have that distinction even before the adea was passed. already. state statute many state legislatures had already drafted statutes like this before the adea was passed. justice alito, to bring you back to the conversation i was having with you, the reason might congress have done this, distinguish between race and age , i could have granted congress could have reasonably made the other choice as well. think they could have decided one way or the other. the proof is in what congress actually did. it had the flsa on the one hand and title vii on the other hand. statutes were identical in that when you looked at the definitional provisions, you've found the first definition of the word person and then you found the definition of the word employer. what did congress do in title vii? it amended the definition of
person to achieve as justice ginsburg pointed out a very easy solution, with the numeral's new requirement applied to political subdivision. when it amended the adea in the exact same acts that it amended the flsa, indisputably to cover political subdivisions, it did the same thing, amend the definition of employer and not the definition of person. i point the court to its own where they say we look to not just the language choices , we also look to structural choices that congress made and we assume that those are intentional. even if i had nothing but the comparison between the adea and , ile vii, under those cases had something more here. , congress made
the same decision in the flsa. >> could you say what your argument means for the agent clause? had congress written the term itloyer includes, i take that one could not be an agent without having 25 employees. where does this sentence take us with respect to agents? >> i want to start with my point of agreement with the other side, which is we agree that the key question is whether also means ads something. this brings me back to justice breyer's question. i don't think there can be a reasonable dispute as to whether the agent clause does it add
additional entities into the category of employer and it is not just the below 20 thing. more fundamentally, it is agents that would not otherwise be covered. that is what the court noted in manhart and we explain in our brief, and there is also footnote one in the solicitor general's brief. that is just use one example. some are agents of employer, but not covered. bothered by exactly the same thing that justice alito said. that if we are not going to have numbers with be, we're not going to have numbers with a. does is make sure it is principles of agency. , knowwould i look to see they had another idea, they wanted agents covered who had
fewer than 20 or 25 employees? >> justice breyer, i don't think you will find a sentence to that effect in legislative history. let me make clear on one thing, the 20 employee is the very beginning of their problems. the much bigger of their problem is an agent of any size would not be covered but for that clause that would not be responding. theriend says we distort meaning of independent contractors, but i urge you to read the rest of my sentence that is quoted. and also to look at section 2 called independent contractor. the company hired to do layoffs, to choose who is going to be laid off, administer our benefits plan, those types of people are agents, but they are not necessarily covered. in his reading of the agent
clause leaves a gaping hole in the adea. i wonder how this allows us to make the distinction that you suggest and the solicitor general suggests between entities and individuals. it does not make any such distinction on its face. how would we go about doing that? >> i think there are two questions you would ask. would askquestion you is rather any agent includes employees. the word any might suggest that it does. on the other hand, employees are once you haved already given the word employer. it would be a mystery why congress would have wanted agents to be speaking about it isees, especially when used other ways in the statute.
the first question is whether means any agent whatsoever or nonemployee agents. if you answer that question against my position, you still have a second question, which is if individual supervisors were on the hook, the question would still be, how are they on the hook? theyircuits have held that are liable, but liable under something like fisher capacity principles, so they flow right back to the employer, as one would expect. you have two questions that would get you off the train to wear my friend would like to leave you with that clause. i think the fundamental thing i would like to urge to that court is that you have before you and unambiguous statute in terms of every word you need to describe this question presented. employer means a state or political subdivision. i would urge the court to resist
the temptation to go looking elsewhere for ambiguity. as to what the statute itself plainly says. that is really the beginning and the end of it. you can leave all of that other stuff for another day. questions,e no other i will wrap up now. >> thank you, counsel. mr. bond? , itake it please the court expressly covers state and political subdivisions regardless of their size. that is true for three reasons. first, that is by far the most natural reading of the text, given the ordinary meaning and consistent usage across federal law. second, congress rejected the ready template in title vii adopted two years earlier that did exclude small state and
local government employers by putting the definition -- by putting government employers in the definition of purpose -- person. third, petitioners contrary employerould allow any to outsource that. it would abandon the core theory of the text. in terms of the ordinary meaning, we agree that the language also means is clear and it is clear congress used it in that ordinary way that did not follow the title vii approach. my friend suggests that the congresses precluded from doing the same thing. the differences are quite slight.
of those differences prevented congress in 1974 from doing the exact same thing that a different congress had done two years earlier and title vii if it had wished to do so. ,here are slight differences but what is common to them is that they address the problem in the same way. they put governments in the definition of employer, not subject to any numeral city requirement. just to touch on the questions, that is where the real vulnerability is. the court does not need to resolve the outer limits of the clause because that is not implicated here. i think it is important to bear in mind that it cannot mean what petitioner is offering because means thatretation any employer could evade the law by outsourcing to small agents.
preventthat it is to what manhart called them a -- delegating to discriminatory shells. if you take the reading seriously, it means that the secondary clause clarifies the first, so the 20 employee threshold reaches to the government clause in the second sentence. if that is true, it has to follow logically that it reaches the agent clause in the middle. i realize the petitioner , but thatthat result would mean that the 20 employee it would land on the government clause and that is not a plausible way to read this. it would have to operate the same where cross both clauses here. a thing from the ordinary reading of the text in the way congress has used it in the statute, there is only one
conclusion the court can draw. text,we follow this same this interpretation you advocate with respect to the provision concerning political subdivisions, wouldn't that lead us to the conclusion that an agent of an employer includes the employer's employees? aren't they agents of the employer? >> you don't have to address that here. >> i know we don't have to address it, but we have to have a theory, and understanding of the statute that makes sense. you just made an argument based on the agent clause. >> yes, your honor. the answer to your question is we don't think it would reach individual liability because of questionsditional that counsel identified. the meaning of agent, not only did congress have no reason to use agent in its broadest sense because employees are also covered under superior liability. congress did not use language
that it has used in other language like the flsa, that lower courts and department of labor have read to include individual liability. section section 203d in brief, the appendix to a it includes any person who asked directly or indirectly with respect to an employee. the family medical leave act uses the same language. lower courts and the department of labor have construed those statutes to impose individual liability in some circumstances. you don't see that language in the age act. you don't need to resolve that, but that would be a strong contextual reason to reject that understanding. in addition, even if you concluded that some set of employees are supervisors were agents in some circumstances, you still have to answer the question that the lower courts have consistently answered byinst individual liability
saying that is this individual person liable or is it liable or a cash only in his individual capacity. if you are counted as the employer only because you are , in varying agent the terms and conditions, liability naturally runs against the employer whose authority you are exercising. , you resolve that question would need to take cognizant the potential spillover effect. it is another reason not to delve into those issues. does the agent clause at some category of additional agents. by its terms, it does. it must do so to solve these problems. theory, whicher's is to say that this is just a reference to something that basically says the employer
shall have such liability for any agent, wouldn't that include these corporate shells you are talking about? >> if it simply codifies previous text, no, the employer would not face liability for acts of individual agents. a principal is not responsible for acts of individual agents. >> independent contractors. >> independent agents. agents that are not employees. face a statutory language that says an agent or such a person? these corporate shells are acting as the agent or such a person. >> if they are responding to , ifnary agency principles
what you're suggesting is that the language or the reference to agents incorporates a broader theory of agency liability, that still leaves petitioner with a difficulty of squaring how the two clauses work. and thethe agent clause government clause must operate in the same way. you cannot read them is doing those fundamentally different things. a novel principle of the other incorporating a 3 principal. >> i'm not so sure what is so bad about agency liability. rated it hurts and fired wants to sue the company. deal?s the big
it would allow to sue the person responsible for the decision? >> lower courts and agencies have construed that there was liability. the answer is not clear to think there is strong contextual .ndicators if there is some individual liability, that is much less anomalous than reading the text in a way that no dictionary or other statute uses it, and creating a huge loophole for outsourcing to agents of any size under 20 employees. if the court has no further questions, we ask you affirm. >> thank you, counsel. five minutes. >> brief points. first, mr. fisher's explanation of agency is at war with burlington. this court said that the reason that there is responding act
superior in title vii is because of the agent clause. nothing else created that. the difference between title vii and title ix is crucial. noster said title ix has liability. why? because it did not have an agent clause. i'm not saying that there is no liability for that third-party agent. of course there is liability. the agent clause does not just implement liability, it implements agency principles as to both employees and the independent agent. that does not mean that agents themselves have to have 20 employees. that is clear from the wording of the statute. it says the employers anyone who
has -- is a person who has 20 or more employees and also affects commerce. the such person is the employer who needs 20 employees. the agent does not need 20 employees. so, let me just go to an observation about the relationship between the flsa and title vii. it was pointed out that there is a distinction between the flsa and title vii in the court's jurisprudence. it is a procedure substance distinction though. anything that is substantive in this court has typically referred to title 7 as the analog. so, i recognize that neither reading is perfect, but it comes
down to a choice between a reading that is at worst mildly ungrammatical and one that is wildly untenable. are beating to legislative drafters a level of grammatical sophistication that is unrealistic. the list of problems that respondents are creating with their reading is really untenable. it is unfathomable that congress would have singled out public entities for harsh treatment in a statute whose whole purpose was to bring public employees into the ambit that private employees occupy. so agentet the statute means third-party contractor and they say employees are not agents. you cannot just wave away the problems created by that reading.
circuits all agree with our reading and that is all waved away. have notspondents explained why congress would have stripped public employees of valuable rights that private employees have. not in theion is word employer. it is in the agency clause. at a minimum, public employees lose all recourse for the acts of third-party contractors. that is at least clear. a reasonable reading of the statute that achieves congress's stated goal, that is the reading that the court should adopt. no furthere questions, we respectfully request that the court reverse. >> thank you, council. the case is submitted.
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