tv Mount Lemmon Fire District v. Guido CSPAN November 17, 2018 7:04pm-8:01pm EST
not subject to the law because of the numbers of employees they had. the supreme court heard the case on september 1, before brett kavanaugh was confirmed as a justice. the court decided in favor of the firefighters earlier this month. for your argument next in lemmon firemount district versus guido. court, weleases the have fixated on two words in a two sentence definition of employer. it is ignored how the second sentence relates back to the first. thatmped right back to second half of the second sentence without considering the first half. and ignores how all of this relates to the foundational definition of which the definition of employer is built. predictably, that wreaks havoc with the statutory scheme.
by stripping public employees of crucial protections like responding to a superior, and by treating public employers worse than private ones in a statute whose purpose was to bring parity to the two. the best way to read the statute is from beginning to end, but let me start in the middle as my colleagues do with the phrase that is causing all this mish chief. respondents do not dispute that that term can have two alternative meanings. it can mean in addition, there universe beyond that which is defined in the first sentence. or it can 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 pushes the reading in the direction that we proposed, aiding by two canons of construction in the interest of making sense out of the antidiscrimination law. >> what you say about making perhaps our congress should have used the formulation that was used in title vii. title vii is absolutely clear. the public and private employers. picks up on the language of the standards act, noch has no numeral city -- numeral city.
using thet that by -- theys act language wanted to do what title vii has done in 1972, they wanted to do that in 1974, why didn't they use similar language? >> let me start with the premise and turned to the ultimate question. the premise of your honor's question is that congress used the definition fro. i urge the congress to use the definition in the flsa. it is in the statutory appendix. it is entirely different from this definition. why did congress use a different approach from title vii when everyone understood -- at least everyone who is talking about it wasrstood that the purpose
to mimic what title vii did? attributing rationality to someone who is obviously not doing his job very well, but title vii began with different language pretty amendment from the -- pre-amendment. title vii began with language that was not as expansive about the definition of person. so now we have an extremely as anyve definition organized groups of persons. it is the most explosive definition this court has ever seen of persons. >> it can be expensive only in one way. that entire list up to the disputed any organized group of persons all apply to private entities. corporations, this is held in
at least five cases that corporations includes municipal corporations. 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. first, even without that language, this court has found that striking that out -- this court has found that the definition before that language covers political subdivisions. city of lafayette, chattanooga, and rickets all found that. but mount lemmon fire district is most certainly an organized group of persons. land owners under statute who get together to find a common cause. >> counselor, even if it is true in those cases, what is different between those cases and this one is that the original statute made clear that that definition was not going to include states or federal government. so 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 include it unless i'm told to include it otherwise. >> i beg to differ without the statute is structured. we start with the definition of person in subsection a. that is broad and expansive. subsection b then subtracts. it says it is not the federal government. and by the way, it is not states, it is employers. 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. >> no, it makes no sense to subtract them unless you never intended to include them. >> your honor, that certainly is not the way this court has read it. it is certainly not the way title vii does it. >> you assume an ambiguity that
read in twocan be ways. you are not saying the way the court read it was not permissible, you are just saying a better reading is your way. correct? >> that is correct. let me put it a slightly different way. i'm not just assuming. 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. we know that also means does not 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? or is that the end of the case? if we adopt the normal meaning of also. meaning in addition to. do you lose?
>> no, your honor. but 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. also means means in addition. so 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, distortions, preposterous results,
contradictions, and anomalies. pretty strong language. and also contortions. that is in the first page and a half of the reply brief. i did not see and i guess i expected to see some sort of absurd results argument if we use that kind of language, but i did not see any. so it made me a little concerned. >> let me tell you what the absurd result is. let's start with the agents clause. the government's position is that also means necessarily at dds a 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 -- >> your honor, 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. why? because as this court found in burlington, that is not what the agent clause does with the agent -- what the agent clause does. what the agent clause does is incorporate liability. >> that point was made by the majority of circuits who ruled in your favor. those circuits still have to deal with the agent meaning. they have dealt with it by
addressing respondent superior liability. however they have dealt with it, your meaning does not do away with that intention. >> your honor, our meaning most certainly does. we have a complete disagreement with the government and respondent on what the agent clause does. we believe that incorporates responding and superior liability. that makes the employer liable for the agent's activities. the government and respondeds -- and respondents 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? and the term also means an agent or such person. >> your honor, for the simple
meaning that everyone has agreed and the respondents have conceded in their brief on page --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 way 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. and 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, are employees. without the agent clause -- when you define the agent clause the way respondents do, you do and -- in depth -- end up with a
disaster. , -- mr.osencrantz rosenkranz, 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? is it an employer? >> yes, 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. so what you are essentially doing is converting and -- the phrase which says the term employer also means and converting that into the term
person, just to make clear, includes. >> no, your honor, no. what we are doing is referring back to employer. so, the first sentence says who is an employer. who is an employer? an entity that has at least 20 employees and that affects commerce. that is a universe. the term, in our view, also means clarifies that within that universe, we are doing two things. we are applying agency liability to that universe of aforementioned persons who are now labeled employers. >> but the clarifying with respect to the subdivisions would not be necessary except for the fact 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.
isn't it? >> no, because there are other statutory problems that get created completely apart from that. >> 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 that was written in a strange way. there is a reason for that. this gets to one of my other statutory clues. when you think about the evolution of this statute, it was different from title vii. this statute with two sentences within that definition, not one. this statute also had also meanings.
so if you think about what was going on, we map it out on page eight of our brief, what the editor was trying to do or if you look at page 8, there is a redline. the basic point is this. the statute always had the same structure. the second sentence always had also means in it. but that second sentence had two parts. the second was clearly a clarification. the second was an exclusion. what did the drafter do? they just took part of the exclusion and moved it to the other side of the also means sentence so now it is serving that clarifying purpose. >> if a company has 50 employees and one day they think of an idea, what we will do is set of -- is set up 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. under respondent's definition. >> but the agency is not the subsidiary. the subsidiary is not an employer. does the xyz corporation, they -- does the xyz corporation set up five subsidiaries, each of which have 10 employees, it is and 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 manhart kind 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 he 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. and that is why the subsidiary part, namely the agent part, does not have a number attached, because they don't want to -- they don't want a number attached. they don't want you to set up 100 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 more than 10 employees, and to avoid it one thing they might have wanted to do is use the word agency without a qualification. that the agency has 20 employees. >> your honor, all i can say is there is no reason to believe congress was ever focused on that scenario. that was never before congress. what was before congress and what this court held as to title vii in burlington is that that language is about responding superior. i have already mentioned two clear signals. 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 it protects employees from the independence -- excuse me, the discriminatory acts of contractors. why did congress apply that important protection only to private employees and not to public ones? because that is the consequence of the respondent's reading. fourth signal, effective commerce. and what congress did with that phrase. for now, i am not making a constitutional argument. i'm making a drafting argument. in everyone of these discrimination statutes, congress felt the need to provide an explicit commerce clause hook. it did so for private employers under the adea. it did so for all employers under title vii in the ada.
one could have an interesting constitutional debate about whether that hook was constitutionally required. but my point here is simpler. congress thought it was necessary in every other context, so why would congress have left it out here? and then the fifth statutory clue is the statutory history. and i have already described how the drafters got to where they got. but let's get to look at two things. -- but let's look at two things. the first is how they changed the language in 630-d. 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 identify who is now in the ambit of the statute.
it was essential because that was the major change. now look at 630-c. we don't have a red line in our brief on this one. but you can see it in the governance statutory appendix. you can see it in our statutory appendix. the term employment agency is defined there. it means anyone originally -- it means anyone -- originally it said 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. congress crossed out everything after the united states. the only reason to have done this would have been to include states and political subdivisions within the definition of employment agency. 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 b and they are subject to the same employee limit. if the purpose of that second sentence was to take entities that were already persons and therefore subject to that first sentence, encompassed by that first sentence, and make it clear that the proviso of the size no longer applies, that is a 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 absolutely clear that it covers political
subdivisions regardless of size. there is nothing odd, much less absurd, about that result. 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 actually do dispute that. the meaning of also means is additive. it adds something that was not there before. the confirmation of that is found throughout the u.s. code. in our brief, we cite 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. 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. because that is a statute where it says consumer means an individual who does certain
things or the person's legal representative. and so, that itself -- i'm sorry, also means the person's legal representative. that is additive. this is not a statute talking about a court of law where 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. it is not additive in that sense. it is that legal representative is giving the consumer's information to someone. that is the violation, isn't it? >> it is still talking about a different source than the previous part of the statute. if there is one potentially ambiguous provision out of 33, we will still take that. i would turn the court to the most telling example, the one on page 12 and 13 about elderly
families. the reason that is so telling is particulargives a qualification at the end, or is also handicapped. then it says the word also means such and such and then it repeats that price, 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 is to carry forth or to carry down. >> could you deal 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. >> the federal agency? yes. well, it is not superfluous in the sense that the federal government has backed out at the end in a situation where the better 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 in both places is because for two things. one is 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 itself treated wholly 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 there. 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. if the court has any doubt about was doing there. that, i would urge the court to look, as my friend also urges, to 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
at the same time, do you think it is plausible 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 other cases where the court has described the genesis of the adea. the word the court has used, the adea is a hybrid. it is a hybrid between an antidiscrimination law and a labor statute. that is borne out in the provisions of the adea. which borrow the part from the title vii language, but the rest of the tattooed is largely gone from the flsa. >> 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 there than if we do to racial discrimination? >> i think that is not exactly the way congress would have thought of it. in history, you find elements -- i am going to answer your question directly, i think. you find in title vii that congress was concerned about associational interests. personal associations. one of the things is 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. but it is directly related in history to title vii. on the other hand, this goes back to the adea being labor. the purpose of the adea 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 animist-based discrimination like title vii, 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. first of all, the other component of the adea which no one disputes covers federal governmental employers regardless of size. we find that in the adea itself. as to state and political subdivisions, you find a close-knit analogy in the flsa. my friend says in his reply brief that the flsa has no numerocity requirements on the private side. that is strictly speaking true. but enterprise liability under the flsa, which is a 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 -- two a numerocity requirement. in other words, you have a firm that has to be of a certain size. justice kagan, you asked about federal. as we cited in our brief, the majority of states cover political subdivisions regardless of size. of that group, about half of them cover political subdivisions regardless of size and on the other hand still have a numerocity 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 -- you said that most states include political subdivisions without regard to size. do we have language that most
states use? is it similar to the language used in the adea? >> justice ginsburg, these are all collected in footnote six on page 29 of our brief. in answer to your question, the state statutes use different language. it is not a question that the ng whatare parroti the adea says. i think 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. the thing that my friend says is ludicrous for congress to have achieved actually was in state statute already. many state legislatures had already drafted statutes like this before the adea was passed. and so, justice alito, to bring you back to the conversation i
was having with you about the reason might congress have done this, to distinguish between race and age, i could have granted congress could have reasonably made the other choice as well. i think the congress could have decided one way or the other. but the proof is in what congress actually did. as i said, it had the flsa on the one hand and title vii on the other hand. the two statutes were identical in the sense that when you looked at the definitional provisions of the act, you 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, where the numerocity requirement applied to political subdivision. when it amended the adea in the exact same act that it amended the flsa, indisputably to cover political subdivisions regardless of size, it did the
same thing, amend the definition of employer and not the definition of person. i point the court to its own decisions in cases like gross and nassar, where they say we look to not just the language choices, we also look to structural choices that congress makes. and we assume that those are intentional. even if i had nothing but the comparison between the adea and title vii, under those cases, i think that would be enough to remove any doubt the court might have about what congress was trying to achieve here. actually, i have something more here. , which is flsa closely related, and congress may be exactly the same decision in the flsa. >> could you say what your argument means for the agent clause? if congress did not put also includes, had they written the term employer includes, i take it that one could not be an
agent without having 25 employees. but where does your understanding of this sentence take us with respect to agents? >> justice alito, let me answer that in two steps. 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 adds something. even with respect to the agents clause. 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 -- the agents clause does 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 some independent
contractors, and that is just to use one example, are agents of an employer, but are not covered. >> i was bothered by exactly the same thing that justice alito said. that if we are not going to have numbers with b, we're not going to have numbers with a. i think your colleague says, they wanted numbers. all that a does is make sure it is principles of agency. anthony sites burlington. where would i look to see, know no, 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, 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.
my friend in the reply brief says we distort the meaning of independent contractors, but i urge you to read the rest of my -- the rest of the sentence that my friend quotes. and also to look at section 2 of the restatement of agency called independent contractor. in both of those places, the written statement makes clear that some independent contractors, for example a company hired to do layoffs, to choose who is going to be laid off, administer our benefits plan, and decide what the criteria are for that. those kinds of people are agents, but they are not necessarily covered. my friend in his reading of the agent clause to do nothing to clarify what comes before leaves a gaping hole in the adea. >> i guess i wonder how this your reading of the clause allows us to make the distinction. you suggest and the solicitor general suggests between entities and individuals. it does not on its face make any
such distinction. how would we go about doing that? >> i think there are two questions you would ask. this is in response to justice alito as well. the first question you would ask is rather any agent includes employees. obviously the word any might suggest that it does. but on the other hand, employees are already covered once you have already given the word employer. it would be a mystery why congress would have wanted agents to be speaking about employees, especially when it is -- when another provision defines employee and it is used in other ways in the statute. the first question is whether means any agent whatsoever or just nonemployee agents who are not already covered. if you answer that question against my position as i stand here, 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? as we know, and the solicitor general notes as well, yes, they
are technically liable, but they are liable under something like official 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 where my friend would like to leave you with that clause. but i think the fundamental thing i would 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. it says, the term employer means a state or political subdivision that is all you need to decide this case, and it is absolutely clear. i would urge the court to resist the temptation to go looking elsewhere in the statute 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, if it ever comes back to the court, for another day. if there are no other questions, i will wrap up now. >> thank you, counsel.
mr. bond? >> mr. chief justice, and may it please the court, it 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 its 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 person. congress did not do that and follow the template adopted at the same time in 1974. third, petitioners' contrary reading would allow any employer to avoid it by outsourcing
discrimination to small agents. in order to avoid that problem, petitioners were forced to abandon the core theory they offered of the text, which treats the two clauses the same way. in terms of the ordinary meaning, we agree that the language also means and its usage is clear, and it is clear that congress used it in that ordinary way that did not follow the title vii approach. my friend on the other side suggests that the differences precluded congress from doing the same thing. the differences are quite slight. you can see them on pages six and 15 of the appendix. but none of those differences prevented congress in 1974 from doing the exact same thing that a different congress had done two years earlier in title vii if it had wished to do so. there 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 numerocity requirement. just to touch on the questions, that is where the real vulnerability for the petitioner's argument is. the court does not need to resolve the outer limits of the clause because that is not implicated here, and nothing in this case turns on it. but i think it is important to bear in mind that it cannot mean what petitioner is offering here because that interpretation means that any employer could evade the law by outsourcing to small agents. one thing we know the agent clause is supposed to do, from manhart and other cases, is to prevent what manhart called delegating to discriminatory shells. but if you take the petitioner's 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 the 20 employee clause reaches the agent clause in the middle. i realize the petitioner disclaims that result, but that ere is no way to square that with the text. that would mean that the 20 employee threshold starts at the first clause, skips, and lands on the government clause. that is not a plausible way to read this. it would have to operate the same where cross both clauses here. i think from the ordinary reading of the text in the way congress has consistently used it in the statute, there is only one conclusion the court can draw. >> if we follow this same text, the theory of interpretation that 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? >> your honor, again, you don't
have to address that here. >> i know we don't have to address it, but we have to have a theory, an 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 the two additional questions that counsel identified. just to highlight this a little bit more, the meaning of agent, not only did congress have no reason to use agent in its broadest sense because employees would also trigger the superior liability. in this statute, 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. i can point you to one example. the flsa section 203-d in section 1-a of the appendix to a brief, it includes any person who asked directly or indirectly with respect to an employee.
the fmla, 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. i think it is a standard inference that congress did not intend to impose individual liability in that circumstance. 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 subset of employees are supervisors were agents in some circumstances, you still have to answer the question that the lower courts have consistently answered against individual liability by determining, is this individual personally liable, or is he only liable in a sufficient individual capacity? if you are an employee and you are counted as the employer only because you are acting as an agent, exercising the authority of the employer in varying the terms and conditions of a particular employee's
employment, liability naturally runs against the employer whose authority you are exercising. to resolve that question, you would need to take cognizant the -- of the potential spillover effect for other federal statute , which is another reason not to delve into those issues. the only question you need to answer is, does the agent clause at some category of additional agents? by its terms, it does. it must do so to solve these problems. >> is that true, mr. bond? because on petitioner's theory, which 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? >> a few points on that. it simply codifies existing principles, no, the employer would not face
liability for acts of independent agents. a principal is not responsible for acts of individual agents. unless you specifically intend the results. >> independent contractors. is that what you meant? >> independent agents. agents that are not employees. >> even in the face of statutory language that says an agent or such a person? these corporate shells are acting as the agent or such a -- the agent of such a person. >> as i understand it, the petitioner is urging that they are responding to ordinary agency principles, if 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. because he says the agent clause and the government clause must operate in the same way. but you cannot read the two
clauses as doing those fundamentally different things. one creating a novel principle of agency law, and the other cityrporating a numero requirement that does not apply to agents in the middle. >> i'm not so sure what is so bad about direct agency liability. let's say you have a manager who runs the shop, the factory, and he decides, i am going to fire everybody over 45, or whatever it is. maybe the person fired wants to sue the company. maybe the company is bankrupt. what is the big deal? it would seem to me that would allow you to sue the person responsible for the decision? >> we agree there are federal statutes that lower courts and agencies have construed that impose that kind of liability. that is another reason you don't need to delve into that here. the answer is not clear. there is strong contextual indicators.
if that is the conclusion at the end of the day in a case where it is properly presented that 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. mr. rosenkranz, five minutes. >> thank you, your honor. 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. gebster said title ix has no superior 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. you start with b. it says the employers anyone who has -- is a person who has 20 or more employees and also affects commerce. then it says that also means any agent of such person. but such person is an 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. bothisher and mr. bond point 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. respondents are attributing to legislative drafters a level of grammatical sophistication that is unrealistic. meanwhile, the list of problems that respondents are creating with their reading is really untenable.
first, 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. second, respondents rewrite the statutes so that agent means independent third-party contractor, and they say employees are not agents. you cannot just wave away the problems created by that reading. it is not peripheral. 12 regional circuits all agree with our reading and that is all waved away under respondents rating. -- reading. third, respondents have not explained why congress would have stripped public employees of valuable rights such as superior liability, that private employees have. the protection is not in the
word employer. it is in the agency clause. but at a minimum, public employees under respondents reading lose all recourse for the acts of third-party contractors. that is at least clear. with a reasonable reading of the statute that achieves congress's stated goal, without creating any of this miss it -- of this mischief, that is the reading that the court should adopt. if there are no further questions, we respectfully request that the court reverse. >> thank you, council. the case is submitted. [captions copyright national cable satellite corp. 2018] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] announcer: sunday on q and a, california democratic congresswoman jackie spear talks about her memoir "undaunted." i was in guyana, having concluded a congressional delegation tour with leo ryan. we were ambushed on that
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