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EEOC asks high court not to review Baltimore Co. back pay ruling

The Equal Employment Opportunity Commission is asking the Supreme Court not to review an appellate ruling finding that back pay is mandatory upon a finding of a violation of the Age Discrimination in Employment Act, or ADEA.

The 4th U.S. Circuit Court of Appeals ruled in September that back pay is mandatory, making Baltimore County liable for millions of dollars in relief to older employees who contributed to the county pension plan for more than a decade at a rate higher than other employees paid.

There is no official estimate for what the remedy could end up costing the county, but an attorney made a rough guess in 2016 court filings that the requested back pay could cost the county $19 million.

The county petitioned the Supreme Court for review in December and the EEOC declined to file a response unless the court requested one, which it did in February. The response was filed Wednesday and claims further review of the case is not warranted because the 4th Circuit correctly decided the case.

The county changed its pension policy in 2007. Employees hired after the change paid the same rate regardless of age. The parties and unions involved approved a plan for gradual equalization of contribution rates for remaining employees in 2016, but the EEOC pursued retroactive and prospective damages for the unequal rates previously paid.

After a U.S. District judge sided with the county, the 4th Circuit reversed and found that Congress adopted the remedy provisions of the Fair Labor Standards Act into the ADEA, including mandatory back pay.

In its petition, the county argued that the 4th Circuit’s ruling is in conflict with precedent over monetary relief in pension cases, that its conclusion has not been reached by any other federal court, and that the ordered relief would involve individualized review and calculations for more than 12,000 pension beneficiaries.

But the EEOC claims there is no conflict with other court decisions because no court concluded awards of back pay are discretionary, as the county is arguing. The agency also argued that “the potential complexity of computing the relief” has no bearing on whether Congress made it mandatory.

The county’s brief also contended that the ADEA allows the district court to grant legal and equitable relief as appropriate and that this discretion means there is no mandatory relief.

In response, the EEOC said the wording of the ADEA makes it clear lost pay as a result of age discrimination is supposed to be treated as unpaid minimum wages or unpaid overtime pay, which employers are always liable for under the Fair Labor Standards Act, or FLSA. Where Congress did not intend to incorporate mandatory remedies from the FLSA, it expressly said so in the ADEA, according to the filing.

The case is Equal Employment Opportunity Commission v. Baltimore County et al., No. 18-781.

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