E.E.O.C. v. Elrod

• Decision Date: 16 March 1982
• Docket Number: No. 80-2810,80-2810
• Citation: 674 F.2d 601
• Parties: 28 Fair Empl.Prac.Cas. 607, 28 Empl. Prac. Dec. P 32,545, 3 Employee Benefits Ca 1329 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. Richard ELROD and Philip Hardiman, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 601

674 F.2d 601

28 Fair Empl.Prac.Cas. 607,

28 Empl. Prac. Dec. P 32,545,

3 Employee Benefits Ca 1329

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. Richard ELROD and Philip Hardiman, Defendants-Appellants.

No. 80-2810.

United States Court of Appeals,

Seventh Circuit.

Argued Dec. 7, 1981.

Decided March 16, 1982.

Henry A. Hauser, Asst. State's Atty., Chicago, Ill., for defendants-appellants.

Judy Trent Ellis, E. E. O. C., Washington, D. C., for plaintiff-appellee.

Before PELL, Circuit Judge, FAIRCHILD, Senior Circuit Judge, and SPRECHER, Circuit Judge.

SPRECHER, Circuit Judge.

This case raises the issue of whether the 1974 amendment to the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"), constitutionally extends the proscriptions of the ADEA to state and local governments. The constitutionality of the amendment is challenged in an enforcement proceeding under 15 U.S.C. § 49, brought by the Equal Employment Opportunity Commission ("EEOC") against the Cook County Department of Corrections ("Department"). The EEOC seeks compliance with two administrative subpoenas issued pursuant to the agency's investigative authority under § 7(a) of the ADEA, 29 U.S.C. § 626(a). The district court ordered the Department to comply with the subpoenas, finding that the 1974 amendment was constitutional, and that the subpoenas requested information relevant to the EEOC's investigation of the retirement practices of the Department.

The question before us is whether Congress has acted within its authority in extending the prohibitions of the ADEA to state and local governments. It has been argued that such authority is found in either the Fourteenth Amendment or the Commerce Clause. We hold that the 1974 amendment to the ADEA is a constitutional exercise of Congress' power under § 5 of the Fourteenth Amendment. ¹ The EEOC was entitled to investigate the practices of the Department. Because the administrative subpoenas were proper and relevant, we affirm the judgment of the district court.

I

In 1979 the EEOC began an investigation of the Department's mandatory retirement policy, which requires corrections officers to retire at age 63. The Department responded to the Commission's inquiries by stating that this policy was based on County Ordinance 75-0-16 § 9-3 and was justified as a bona fide occupational qualification ("BFOQ") under § 4(f)(1) of the ADEA, 29 U.S.C. § 623(f)(1). The EEOC additionally sought information concerning individual officers scheduled for involuntary retirement. When the Department refused to provide this information, the EEOC, on September 11, 1979, served two subpoenas on the Department. A subpoena duces tecum requested documents concerning, inter alia, the basis for the retirement policy and the administration of the policy with regard to prior and current employees. A subpoena ad testificandum requested a designated official to testify on the same subject.

On September 14, 1979, the Department notified the EEOC that it would not comply with the subpoenas. The Commission filed an enforcement action under 15 U.S.C. § 49, which is incorporated into § 7(a) of the ADEA, 29 U.S.C. § 626(a), through §§ 9 and 11 of the Fair Labor Standards Act, 29 U.S.C. §§ 209 and 211. The district court issued an order to show cause on October 5, 1979. The Department filed a motion to dismiss on the grounds that the ADEA is unconstitutional as applied to state and local governments, and that the information sought by the subpoenas was irrelevant to the Commission's investigation. On September 17, 1980, the district court held in favor of the EEOC, finding that the ADEA is constitutional as applied to the states and that the subject of the subpoenas was relevant to the Commission's lawful investigation of the Department's mandatory retirement policy.

II

Section 5 of the Fourteenth Amendment grants Congress broad power to effectuate the goals of the amendment Whatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power.

Ex Parte Virginia, 100 U.S. 339, 345-56, 25 L.Ed. 676 (1879). The scope of Congress' power under § 5 is equivalent to that under the necessary and proper clause, U.S.Const., Art. I, § 8, cl. 18. Katzenbach v. Morgan, 384 U.S. 641, 650, 86 S.Ct. 1717, 1723, 16 L.Ed.2d 828 (1966). The test of the propriety of legislation under the necessary and proper clause was established in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421, 4 L.Ed. 579 (1819):

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist(ent) with the letter and spirit of the constitution, are constitutional.

In determining whether the 1974 amendment to the ADEA is "appropriate legislation" under § 5, the inquiry, then, is whether this enactment is "plainly adapted" to the end of enforcing the Equal Protection Clause, and is "not prohibited by but is consistent with 'the letter and spirit of the constitution.' " Katzenbach v. Morgan, 384 U.S. at 651, 86 S.Ct. at 1723.

Although the legislative history of the 1974 amendment to the ADEA lacks explicit reference to the source of congressional authority to extend the coverage of the Act to state and local government employees, it is clear that the purpose of the legislation was to prohibit arbitrary, discriminatory government conduct that is the very essence of the guarantee of "equal protection of the laws" of the Fourteenth Amendment. In addition, the development of the ADEA follows the familiar pattern of contemporary civil rights acts in grounding prohibitions against private parties in the Commerce Clause, while reaching government conduct by the more direct route of the Fourteenth Amendment. Thus, the ADEA amendment constitutes "appropriate legislation" under § 5 of the Fourteenth Amendment.

Congress enacted the Age Discrimination in Employment Act of 1967, Pub.L.No. 90-202, 81 Stat. 602, to promote the employment of older persons based on ability, to prohibit arbitrary age discrimination, and to aid in studying the relationship between age and employment. 29 U.S.C. § 621(b). The 1967 Act protected only private sector employees between the ages of 40 and 65. 29 U.S.C. § 631 (amended 1978). The 1974 amendment to the ADEA extended the protection of the Act to federal, state, and local government employees. Fair Labor Standards Amendments of 1974, Pub.L.No. 93-259, § 28, 88 Stat. 74 (amending 29 U.S.C. § 630). ²

Legislation to extend the ADEA to government employees was first introduced on March 9, 1972, by Senator Bentsen. S. 3318, 92d Cong., 2d Sess. (1972); 118 Cong.Rec. 7745 (1972). Also in March of 1972, Congress considered and passed amendments to Title VII which extended coverage of that act to state and local government employees. Equal Employment Opportunity Act of 1972, Pub.L.No. 92-261, 86 Stat. 103 (amending 42 U.S.C. § 2000e). The Title VII amendments were explicitly passed under § 5 of the Fourteenth Amendment. H.R.Rep.No.92-238, 92d Cong., 2d Sess., reprinted in (1972) U.S.Code Cong. & Ad.News 2137, 2154. In May of 1972, Senator Bentsen again presented his proposed amendment to the ADEA. 118 Cong.Rec. 15894 (1972). The Senator noted the overwhelming approval of the Title VII amendments by Congress, and urged similar support for the ADEA amendment, arguing that the principles underlying the Title VII amendments "are directly applicable to the Age Discrimination in Employment Act." Id. at 15895. The Senate voted in favor of the ADEA amendment 86-0, but the amendment failed to survive House-Senate conference committees after being attached to two bills. S.Rep.No.93-690, 93d Cong., 2d Sess. 55 (1974); 120 Cong.Rec. 8768 (1974) (remarks of Sen. Bentsen).

In 1974, the ADEA amendment was reintroduced and passed with a group of amendments to the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq. ("FLSA"). Little legislative history exists on the ADEA amendment, however, because the breadth and significance of the amendments to the FLSA overshadowed the ADEA amendment. The amendments to the FLSA extended its coverage to federal, state, and local employees, domestic service employees, and retail and service employees, and included increases in the minimum wage for various classifications of agricultural and non-agricultural workers. H.R.Rep.No.93-913, 93d Cong., 2d Sess., reprinted in (1974) U.S.Code Cong. & Ad.News 2811, 2812.

The House and Senate committees agreed that the ADEA amendment was "a logical extension of the Committee's decision to extend FLSA coverage to Federal, State, and local government employees." S.Rep.No.93-690, 93d Cong., 2d Sess. 55 (1974); H.R.Rep.No.93-913, 93d Cong., 2d Sess., reprinted in (1974) U.S.Code Cong. & Ad.News 2811, 2849. Neither the House nor the Senate committees made explicit reference to a specific constitutional provision as authority to extend coverage of the Act. Both committees, however, indicated the congressional purpose in passing the amendment by citing remarks made by the President in 1972 in support of extension of ADEA coverage to the states:

Discrimination based on age-what some people call 'age-ism'-can be as great an evil in our society as discrimination based on race or religion or any other characteristic which ignores a person's unique status as an individual and treats him or her as a member of some arbitrarily-defined group. Especially in the employment field, discrimination based on age is cruel and self-defeating; it destroys the spirit of those who want to work and it denies the National (sic) the...