Part-time Employees Divide the Circuits:

An Interpretation of "Employer" Under Title VII and the ADEA

  Introduction

Title VII of the Civil Rights Act of 1964 (Title VII)⁽¹⁾ permits employees in both the public- and private-sectors to bring claims against employers for racial and gender discrimination.⁽²⁾ Likewise, the Age Discrimination in Employment Act of 1967 (ADEA)⁽³⁾ authorizes public- and private-sector employees, who have been discriminated against at the workplace on the basis of age, to bring age discrimination claims against their employer.⁽⁴⁾ Both statutes, however, define an "employer" based on a minimum number of hired employees who have worked twenty weeks one year prior to, or during the year of an alleged discriminatory act.⁽⁵⁾ Subsequent to the enactment of Title VII and the ADEA, litigation over the appropriate methodology to be used in counting part-time workers toward the statutory minimum thresholds has created a split in the United States Circuit Courts of Appeals.⁽⁶⁾ The United States Court of Appeals for the First Circuit, whose membership once included Stephen Breyer, now a United States Supreme Court Justice,⁽⁷⁾ applies a liberal interpretation using the "payroll method."⁽⁸⁾ The United States Court of Appeals for the Seventh Circuit, meanwhile, applies a narrow interpretation of "employer" under the "counting method."⁽⁹⁾ The United States Supreme Court will resolve the circuit court split during its 1996-1997 term in Walters v. Metropolitan Educational Enterprises, Inc.⁽¹⁰⁾

Part II of this Note tracks the legislative history regarding the definition of an employer under Title VII and the ADEA.⁽¹¹⁾ Part III defines and elucidates the difference between the "counting method" and the "payroll method."⁽¹²⁾ Part IV argues that the First Circuit's application of the "payroll method" is more rational than the "counting method" in defining an employer under Title VII and the ADEA.⁽¹³⁾ Part V reviews prior United States Supreme Court decisions and attempts to predict how the Court will rule on the appropriate methodology.⁽¹⁴⁾ Lastly, a conclusion is provided in Part VI.⁽¹⁵⁾

  Legislative History and Purpose Behind

Title VII and the ADEA

Title VII currently states that "[i]t shall be an unlawful employment practice for an employer--(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his . . . employment, because of such individual's race, color, religion, sex, or national origin."⁽¹⁶⁾ The United States Supreme Court has declared that "[t]he objective of Congress in the enactment of Title VII is plain from the language of the statute. It was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees."⁽¹⁷⁾ Title VII's and the Court's verbiage implies absolute equality for racial minorities in the workplace. Equality under Title VII, however, is limited to "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or proceeding calendar year."⁽¹⁸⁾

Legislative history illustrates that Congress exempted small businesses having fewer than fifteen employees from Title VII in order to protect them from the threat and expense of litigation.⁽¹⁹⁾ Initially, Senator Norris H. Cotton, of New Hampshire, proposed that Title VII should apply only to employers having more than 100 employees, because the small business-person should be protected.⁽²⁰⁾ This, however, was rejected⁽²¹⁾ and a phased approach was adopted, eventually defining an employer as a person having at least twenty-five employees.⁽²²⁾ In 1972, Congress enacted the Equal Employment Opportunity Act,⁽²³⁾ which authorized the Equal Employment Opportunity Commission (EEOC) to enforce Title VII,⁽²⁴⁾ and further, redefined the term "employer" as a person having at least fifteen employees.⁽²⁵⁾

Procedurally, a person with a Title VII grievance must first file a complaint with the EEOC "within [180] days after the alleged unlawful employment practice occurred,"⁽²⁶⁾ or with an agency authorized by the State within 300 days after the alleged unlawful discriminatory act occurred.⁽²⁷⁾ If thirty days has elapsed after the initial filing of the complaint, and the EEOC has not been able to obtain a conciliation agreement, the EEOC may then bring an action against the alleged discriminating nongovernmental party.⁽²⁸⁾ If the alleged discriminating party is a governmental entity, the EEOC must refer the case to the United States Attorney General's Office.⁽²⁹⁾ If a civil action is not commenced within 180 days after the aggrieved party has filed a complaint with the EEOC, then the EEOC (or the United States Attorney General's Office if the alleged discriminating party was the government) must notify the person aggrieved that a civil action will not be commenced.⁽³⁰⁾ The person aggrieved may then sue the discriminating party directly, ninety days after receiving notice that a civil suit will not be commenced by the EEOC.⁽³¹⁾

After enactment of Title VII, Congress recognized that age discrimination remained a major problem.⁽³²⁾ In response, Congress enacted the ADEA of 1967.⁽³³⁾ This statute states: "It is . . . the purpose of this chapter to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; [and] to help employers and workers find ways of meeting problems arising from the impact of age on employment."⁽³⁴⁾ The ADEA, like Title VII, however, does not apply to every employer.⁽³⁵⁾ Furthermore, the ADEA only applies to individuals who are at least forty years of age.⁽³⁶⁾

Procedurally, a person with an ADEA claim must file a complaint with the EEOC "within 180 days after the alleged unlawful practice occurred"⁽³⁷⁾ or with an agency authorized by the state within 300 days after the alleged unlawful employment practice occurred.⁽³⁸⁾ After a person aggrieved has filed his or her complaint with the EEOC or appropriate State agency having jurisdiction, "[n]o civil action may be commenced by an individual . . . until 60 days after a charge alleging unlawful discrimination has been filed."⁽³⁹⁾ Upon receiving the complaint, however, the EEOC "shall promptly notify all persons named in such charge as prospective defendants in the action and shall promptly seek to eliminate any alleged unlawful practice by informal methods of conciliation, conference, and persuasion."⁽⁴⁰⁾

  Judicial Interpretation of Employer Under

Title VII and the ADEA

The circuit courts are currently split on interpreting the definition of an "employer" under both Title VII and the ADEA.⁽⁴¹⁾ As stated previously,⁽⁴²⁾ Title VII defines an employer as "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year."⁽⁴³⁾ Using similar language,⁽⁴⁴⁾ the ADEA defines an employer as "a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year."⁽⁴⁵⁾ Neither Title VII nor the ADEA, however, provides a methodology for counting the minimum number of employees that a business needs in order to be considered an "employer."⁽⁴⁶⁾ As a result, courts have fashioned their own methodologies.⁽⁴⁷⁾ The United States Court of Appeals for the First and Fifth Circuits have adopted the "payroll method" in determining whether the requisite minimum number of employees under both Title VII and the ADEA has been satisfied,⁽⁴⁸⁾ while the United States Court of Appeals for the Seventh and Eighth Circuits have adopted the "counting method."⁽⁴⁹⁾

A.  The "Counting Method"

The United States Court of Appeals for the Seventh Circuit explained that the proper method for determining whether an organization meets the threshold number of employees necessary to be defined as an "employer" under the ADEA is to count all salaried workers "as employees for every day of the week they are on the payroll. . . . Its hourly paid workers are counted as employees only on days when they are actually at work and on days of paid leave."⁽⁵⁰⁾ This method of counting employees will hereinafter be referred to as the "counting method."⁽⁵¹⁾

The Seventh Circuit first adopted the counting method in Zimmerman v. North American Signal Co.⁽⁵²⁾ In Zimmerman, a former vice president of North American Signal Company (North American) "brought suit against the appellee, North American" in the United States Court of Appeals for the Seventh Circuit, alleging that he was discharged because of his age.⁽⁵³⁾ On a motion to dismiss for lack of federal-question subject matter jurisdiction, the district court determined that North American was not an "employer" as defined under the ADEA, and granted the motion to dismiss.⁽⁵⁴⁾ On appeal, Zimmerman asserted that "the district court used an incorrect method in counting the number of employees North American had during each week of the relevant period."⁽⁵⁵⁾ The district court used the counting method in determining that North American was not an "employer" under the ADEA.⁽⁵⁶⁾ The district court's use of the counting method reduced the number of employees hired by North American to below twenty, which led to a dismissal for lack of federal-question subject matter jurisdiction.⁽⁵⁷⁾ On the other hand, if the method of counting employees had been based on the number of workers present on North American's payroll for each week, North American would have been considered an "employer" under the ADEA, which would have allowed Zimmerman's ADEA claim to survive.⁽⁵⁸⁾

The United States Court of Appeals for the Seventh Circuit held that the counting method was the appropriate methodology to count employees under the ADEA.⁽⁵⁹⁾ The appellate court based its conclusion on the statutory language of the ADEA which states "`[E]mployer' means a person . . . who has twenty or more employees for each working day."⁽⁶⁰⁾ Because Zimmerman's proposed method of counting every worker on the payroll, regardless of whether the worker was present each working day, was contrary to the express language of the ADEA,⁽⁶¹⁾ the Seventh Circuit determined that the counting method was consistent with congressional intent and affirmed the district court's dismissal for lack of federal-question subject matter jurisdiction.⁽⁶²⁾

Using the ADEA adjudication in Zimmerman as precedent, a district court in Illinois adopted the counting method in determining whether a corporation was an "employer" under Title VII.⁽⁶³⁾ In EEOC v. Metropolitan Educational Enterprises, Inc.,⁽⁶⁴⁾ the EEOC brought suit on behalf of Walters, alleging "that Metropolitan . . . refused to promote Walters because of her [gender] and terminated her in retaliation for [her] filing [of] discrimination charges with the EEOC."⁽⁶⁵⁾ Metropolitan claimed that the court "lack[ed] both federal jurisdiction over the Title VII claims and pendent jurisdiction over the state law claims because Metropolitan [was] not an `employer' within the meaning of Title VII."⁽⁶⁶⁾ The district court used Zimmerman as precedent because the statutory definition of an employer under the ADEA is virtually identical to the statutory definition of an employer under Title VII.⁽⁶⁷⁾ Recognizing that Metropolitan was not an employer under the counting method,⁽⁶⁸⁾ the EEOC argued that "principles of statutory construction, and Title VII's legislative history suggest that the method of counting employees should focus on whether an employee is on the employer's payroll rather than the employee's particular work schedule."⁽⁶⁹⁾ Chief Judge Moran, however, adopted the counting method⁽⁷⁰⁾ because "[t]his court cannot . . . modify Seventh Circuit precedent."⁽⁷¹⁾ The claim brought by the EEOC was then dismissed with prejudice for lack of federal-question subject matter jurisdiction, because under the counting method, Metropolitan did not have fifteen employees present each day for at least twenty weeks, as required by Title VII.⁽⁷²⁾

The EEOC appealed to the United States Court of Appeals for Seventh Circuit, arguing that Zimmerman should be overturned.⁽⁷³⁾ The EEOC advanced two arguments against the counting method.⁽⁷⁴⁾ The first was that "in enacting the Family and Medical Leave Act (`FMLA'), Congress endorsed the payroll method over the Zimmerman alternative."⁽⁷⁵⁾ In an opinion written by Circuit Judge Cummings, the Seventh Circuit stated that legislative history has "no force of law,"⁽⁷⁶⁾ and that congressional commentary declaring that the counting method is inappropriate for determining whether a business is an employer under the FMLA "has little effect on our view of Title VII." Second, the EEOC argued⁽⁷⁷⁾ that other circuit courts do not support the counting method.⁽⁷⁸⁾ The Seventh Circuit, however, stated that simply because other circuits disagree with the Zimmerman counting method hardly provides a basis for abandoning stare decisis.⁽⁷⁹⁾ Despite the EEOC's arguments,⁽⁸⁰⁾ the United States Court of Appeals for the Seventh Circuit, for the first time, adopted the counting method to determine whether a business was an employer in the context of Title VII.⁽⁸¹⁾

The United States Circuit Court of Appeals for the Eighth Circuit has also adopted the counting method to determine if a business has the requisite number of employees to be considered an employer under the ADEA.⁽⁸²⁾ In EEOC v. Garden & Associates, Ltd.,⁽⁸³⁾ the plaintiff brought an ADEA claim against the defendant, asserting that the district court had federal-question subject matter jurisdiction.⁽⁸⁴⁾ The district court determined that the counting method should be used to determine whether the defendant had the requisite number of employees to be considered an employer under the ADEA.⁽⁸⁵⁾ Because the number of employees under the counting method was below twenty, the plaintiff's ADEA claim was dismissed.⁽⁸⁶⁾ On appeal, the Eighth Circuit affirmed the district court's dismissal for lack of federal-question subject matter jurisdiction based solely on McGraw v. Warren County Oil Co.⁽⁸⁷⁾ In McGraw, the United States Court of Appeals for the Eighth Circuit dismissed an ADEA claim because "part-time workers who did not work each day of the work-week were not [considered] `employees' for the entire week."⁽⁸⁸⁾ The McGraw court, without discussing Zimmerman, simply cited to the Seventh Circuit's Zimmerman decision⁽⁸⁹⁾ and agreed to narrowly interpret the definition of an employer under the ADEA.⁽⁹⁰⁾

B.  The "Payroll Method"

Rather than adopt the counting method used by the Seventh and Eighth Circuits, the First Circuit uses the payroll method in determining whether a business is an employer under Title VII.⁽⁹¹⁾ The United States Court of Appeals for the First Circuit first adopted the payroll method in Thurber v. Jack Reilly's, Inc.⁽⁹²⁾ In Thurber, a waitress working at a bar in Cambridge, Massachusetts, applied for a position as a bartender.⁽⁹³⁾ Her application, however, was denied because the bar hired only male bartenders.⁽⁹⁴⁾ In her Title VII gender discrimination suit against the bar, the United States District Court for the District of Massachusetts held that under the payroll method, the bar was an employer under Title VII.⁽⁹⁵⁾ On appeal, the district court's decision was affirmed.⁽⁹⁶⁾ Although the United States Court of Appeals for the First Circuit did not expressly declare the plain meaning of "each working day"⁽⁹⁷⁾ ambiguous, requiring a legislative historical analysis to explain any patent or latent ambiguity, the First Circuit relied on legislative history to rebut the appellant's "assertion that the insertion of the words `for each working day' in the statute necessarily imports a Congressional intent to restrict application of the statute to employers who had 15 or more employees actually at work on each working day."⁽⁹⁸⁾ The First Circuit determined that the legislative history of Title VII demonstrated a congressional intent to permit part-time employees to be included in its computation, notwithstanding that they may not have actually been at work on each working day.⁽⁹⁹⁾ The First Circuit stated "there is nothing in the record to indicate a Congressional intent to require that employees report to work on each day that they are included."⁽¹⁰⁰⁾ The United States Court of Appeals for the First Circuit noted that legislative history advocated protecting small businesses, and its interpretation might include small businesses that hire only part-time workers, but "the inclusion of such stores offends less against the policy of the statute than does the exclusion of businesses such as the appellant."⁽¹⁰¹⁾ Therefore, the First Circuit affirmed the payroll method, finding "no basis in authority, canons of statutory interpretation, legislative history or public policy to support the appellant's position."⁽¹⁰²⁾ The First Circuit also observed that if the counting method had been used instead of the payroll method, Jack's bar would not have been defined as an employer under Title VII.⁽¹⁰³⁾

In March 1995, the United States Court of Appeals for the First Circuit reexamined its approach in determining the definition of an employer under Title VII.⁽¹⁰⁴⁾ In Vera-Lozano v. International Broadcasting,⁽¹⁰⁵⁾ Vera-Lozano worked for Three Star Telecast Corporation, which owned television channel eighteen in Puerto Rico.⁽¹⁰⁶⁾ In 1990, International Broadcasting Corporation (IBC) purchased Three Star Telecast.⁽¹⁰⁷⁾ The day before the purchase, Three Star Telecast laid off approximately eighty-three percent of its workforce with a promise from IBC that the workers would be rehired.⁽¹⁰⁸⁾ Vera-Lozano was not rehired because "`she was going to have a baby.'"<sup>(109)</sup> Although the plaintiff made two unsuccessful attempts to get her job back,<sup>(110)</sup> her former position was ultimately filled by a male employee.<sup>(111)</sup> In her Title VII suit against IBC for gender discrimination, IBC claimed that it was not an employer under Title VII, using the counting method, and moved to dismiss the claim for lack of subject matter jurisdiction.<sup>(112)</sup> The First Circuit held that IBC was an employer under the payroll method<sup>(113)</sup> and affirmed the district court's decision awarding Vera-Lozano compensatory damages for loss of wages.<sup>(114)</sup> The First Circuit reached its conclusion by relying on the interpretation of legislative history announced in Thurber:<sup>(115)</sup> "While Congress did express concern for the over-regulation of small businesses, it appears to have adopted the definition of `employer' from the Unemployment Tax Act. . . . An employee is counted under that statute for each day . . . regardless of whether the employee reported to work each day."⁽¹¹⁶⁾

The United States Court of Appeals for the Fifth Circuit, affirming in part and reversing in part the District Court for the Southern District of Alabama,⁽¹¹⁷⁾ has also adopted the payroll method.⁽¹¹⁸⁾ In Dumas v. Town of Mount Vernon,⁽¹¹⁹⁾ an African-American female was ranked first for the position of assistant town clerk after her civil service examination.⁽¹²⁰⁾ The position, however, was filled by a white male who had earned a lower civil service examination score.⁽¹²¹⁾ Eventually, the new town clerk resigned, but the Town of Mount Vernon refused to fill his vacancy.⁽¹²²⁾ The African-American female brought suit against the Town of Mount Vernon alleging racial discrimination under Title VII.⁽¹²³⁾ The Fifth Circuit applied the payroll method to determine whether the town was an employer under Title VII.⁽¹²⁴⁾ The Dumas court relied on the reasoning employed by a District Court for the District of Minnesota, Fourth Division.⁽¹²⁵⁾ The Minnesota court had reasoned that "the Civil Rights Act of 1964 and the Equal Employment Act of 1972 are remedial in nature and should be given the broadest interpretation consistent with their benevolent purpose."⁽¹²⁶⁾ This holding was based on "two opinions by the EEOC General Counsel on October 18 and 20, 1966 . . . stat[ing] that the crucial test is how many employees are on the payroll during the crucial 20-week periods and not how many are at work on a given day."⁽¹²⁷⁾ Although the Dumas court accepted the payroll method over the counting method, the Title VII claim against the town was dismissed because even under the payroll method the requisite number of employees was not satisfied.⁽¹²⁸⁾

A district court in the Second Circuit, relying on Thurber and Dumas, also held that the payroll method was the appropriate method to determine whether a business is an employer under the ADEA.⁽¹²⁹⁾ In Cohen v. S.U.P.A. Inc.,⁽¹³⁰⁾ Cohen alleged that he was terminated because of his age⁽¹³¹⁾ and brought an ADEA claim against Mail Boxes Etc.⁽¹³²⁾ The District Court for the Northern District of New York heard arguments by both parties regarding the appropriate method to be used in determining how part-time employees should be counted under the ADEA.⁽¹³³⁾ The district court favored the payroll method over the counting method⁽¹³⁴⁾ because the definition of an employer under the ADEA is similar to the definition of an employer under Title VII,⁽¹³⁵⁾ and "`[t]he legislative history of Title VII indicates that the proper focus when determining whether an employee should be counted toward the fifteen employee requirement is whether an employment relationship exists, not an employee's particular work schedule.'"⁽¹³⁶⁾ The court also reasoned:

The Family and Medical Leave Act of 1993 defined "employer" using the now familiar language of Title VII and the ADEA. . . . In the legislative history, the Committee on Labor and Human Resources intended this language to receive the same interpretation as the courts have given the similar language of Title VII . . . namely, that the word "employ" means the total number of persons that an employer maintains on his or her payroll, including part-time employees, so long as they are on the employer's payroll for each day of the workweek.⁽¹³⁷⁾

The defendant's motion for summary judgment, therefore, was denied.⁽¹³⁸⁾

The payroll method has been adopted by a district court in the Third Circuit.⁽¹³⁹⁾ In Gorman v. North Pittsburgh Oral Surgery Associates,⁽¹⁴⁰⁾ the plaintiff brought an age discrimination claim against North Pittsburgh Oral Surgery Associates (North Pittsburgh) under the ADEA, alleging that she was forced into retirement because of her age.⁽¹⁴¹⁾ North Pittsburgh claimed that under the counting method, the district court lacked subject matter jurisdiction because it was not an employer as defined by the ADEA.⁽¹⁴²⁾ The court, however, rejected the Zimmerman counting method and adopted the payroll method, stating that "if Congress had intended to exclude part-time or seasonal labor, the intent would have been made clear. We believe that Congress intended a much broader reading of the statute than Zimmerman affords."⁽¹⁴³⁾ The court also reasoned that the counting method was against public policy: "Under [Zimmerman], a business that operates almost entirely with part-time labor could escape the prohibitions of the ADEA, despite the number of workers actually employed."⁽¹⁴⁴⁾ The court cited the First Circuit's Title VII Thurber decision and held that "[this] decision[] correctly embrace[s] the spirit of the ADEA."⁽¹⁴⁵⁾ The defendant's motion to dismiss for lack of federal-question subject matter jurisdiction, therefore, was denied.⁽¹⁴⁶⁾

  Analysis: The Payroll Method Is More Rational

than the Counting Method

A.  Legislative History Supports the Payroll Method

The definition of an employer under Title VII was modeled after the Federal Unemployment Tax Act of 1954.⁽¹⁴⁷⁾ Further, "[t]he Internal Revenue Service, the agency charged with enforcement of the Unemployment Compensation Act, ruled some nine years prior to the enactment of Title VII, that an employee includes all persons `for each day that an employment relationship exist[s] regardless of whether the employee reported to work . . . each day.'"⁽¹⁴⁸⁾ Additionally, when Congress defines the word "employer" in statutes and desires to exclude part-time employees from that definition, it does so with express language.⁽¹⁴⁹⁾ For example, the Worker Adjustment and Retraining Notification Act⁽¹⁵⁰⁾ expressly excludes part-time employees in its definition of employer.⁽¹⁵¹⁾ Unlike the Worker Adjustment and Retraining Notification Act, neither Title VII nor the ADEA, expressly excludes part-time workers from its definition of employer.⁽¹⁵²⁾ Congress, therefore, intended the definition of employer under Title VII to include part-time employees. Accordingly, the definition of employer under Title VII should be given the same interpretation under the Federal Unemployment Tax Act of 1954 because: (1) Congress modeled the definition of employer after the Federal Unemployment Tax Act of 1954, while knowing that the definition of employer was interpreted to include workers not physically at work on each working day,⁽¹⁵³⁾ and (2) Congress did not expressly enumerate when part-time employees were to be excluded from the definition of employer as it has done in other statutes.⁽¹⁵⁴⁾

B.  The Family and Medical Leave Act Supports the Payroll Method

In 1993, Congress enacted The Family and Medical Leave Act (FMLA),⁽¹⁵⁵⁾ which defines the word "employer" in terms similar to the definitions of employer under Title VII and the ADEA.⁽¹⁵⁶⁾ The legislative history of the FMLA indicates that:

[T]he Committee on Labor and Human Resources intended this language to receive the same interpretation as the courts have given the similar language of Title VII, namely, that the word "employ" means the total number of persons that an employer maintains on his or her payroll, including part-time employees, so long as they are on the employer's payroll for each day of the workweek.⁽¹⁵⁷⁾

Because Congress expressly stated that the payroll method is the correct methodology to interpret the definition of an employer under the FMLA, it is likely that Congress attempted to prevent further differing judicial interpretations regarding the definition of employer under Title VII, the ADEA, and the FMLA.⁽¹⁵⁸⁾

C.  EEOC Advocates the "Payroll Method" in its Compliance Manual

Congress created a federal agency, the EEOC, to enforce both Title VII and the ADEA.⁽¹⁵⁹⁾ The EEOC has publicly advocated the payroll method since publication of its compliance manual in 1990.⁽¹⁶⁰⁾ In its compliance manual, the EEOC states that a public policy justification for advocating the payroll method over the counting method is to provide a cause of action for the many people who have been discriminated against, based on race, gender, or age, by a private company.⁽¹⁶¹⁾ The EEOC manual starts with the premise that "neither Title VII nor the ADEA specifically defines the phrase `for each working day.'"⁽¹⁶²⁾ In interpreting the phrase "for each working day," the EEOC manual, after citing to several cases supporting the payroll method, declares that the payroll method is the majority view in the United States.⁽¹⁶³⁾ The EEOC manual then concurs with the First Circuit's Thurber interpretation regarding the legislative history behind Title VII.⁽¹⁶⁴⁾ In rejecting the counting method, the EEOC observes:

Under the Zimmerman approach, an employee who works two hours on each day of a five-day work week is counted towards the fifteen employee requirement for that week. Yet, an employee who works eight hours a day for four days of a five-day work week is not counted on the fifth day and therefore, not counted for that week, even though this employee would have worked more than three times as many hours.⁽¹⁶⁵⁾

In other words, "`a business that operates almost entirely with part-time labor could escape the prohibitions of the ADEA, despite the number of workers actually employed.'"⁽¹⁶⁶⁾ Further, the EEOC manual notes that the Zimmerman counting method creates an evidentiary problem.⁽¹⁶⁷⁾ The EEOC manual concludes that it will recognize "that all regular part-time employees are counted whether they work part of each day or part of each week."⁽¹⁶⁸⁾ It appears that the EEOC's compliance manual is persuasive authority to firmly root the payroll method as the only appropriate methodology. For example, the EEOC is the only federal agency entrusted with enforcement of both Title VII⁽¹⁶⁹⁾ and the ADEA,⁽¹⁷⁰⁾ and the United States Supreme Court has declared that deference must be given to the EEOC's interpretation of ambiguous language if it is reasonable.⁽¹⁷¹⁾

D.  Disagreement Within Zimmerman's Seventh Circuit

Ironically, the EEOC's concern that an employer could structure its workforce entirely with part-time employees and avoid the statutory threshold set forth in Title VII and the ADEA originates from dicta by a federal district court within the Seventh Circuit, which applied the Zimmerman counting method.⁽¹⁷²⁾ In Wright v. Kosciusko Medical Clinic, Inc.,⁽¹⁷³⁾ a sixty-year-old woman was terminated, after training a twenty-nine-year-old male for her position.⁽¹⁷⁴⁾ On a motion for summary judgment, the Kosciusko Medical Center argued that it was exempt from both Title VII and the ADEA because on Saturdays it employed less than the statutory minimum number of employees needed to be considered an employer under either Title VII or the ADEA.⁽¹⁷⁵⁾ The United States District Court for the Northern District of Indiana, stated: "It seems to the court that the far sounder interpretation of these statutes is that an employer `has' an employee not only if he or she works on a particular day, but rather if he or she is on the company's payroll."<sup>(176)</sup> The district court then stated that "Zimmerman focused on the words `[for] each working day.' The opposite result [of Zimmerman], however, and one that seems equally consistent with the statutory language [of the ADEA or Title VII], would be reached by focusing instead on the requirement that the `employer have twenty [or fifteen] or more employees.'"⁽¹⁷⁷⁾ The court reluctantly noted that "[n]onetheless, it is not this court's place to disregard circuit precedent. Although [this] court urges its reconsideration, Zimmerman remains the law in this circuit."⁽¹⁷⁸⁾ The district court, however, did not count Saturday as a working day because "[a]dopting the defendant's suggested approach would draw the court nearer to the possibility . . . that an employer could structure its work force to avoid Title VII coverage, seriously undermining legislative goals."⁽¹⁷⁹⁾ Because Saturday was not counted as a working day, Kosciusko Medical Clinic was an employer under Title VII, but not an employer under the ADEA.⁽¹⁸⁰⁾ Thus, the Wright court demonstrates that even within the Seventh Circuit, the courts are reluctant to abide by the Zimmerman counting method.⁽¹⁸¹⁾

  Anticipating How the United States Supreme Court

Will Resolve the Circuit Split

The current Justices on the United States Supreme Court include Chief Justice Rehnquist,⁽¹⁸²⁾ along with Justices Stevens,⁽¹⁸³⁾ O'Connor,⁽¹⁸⁴⁾ Scalia,⁽¹⁸⁵⁾ Kennedy,⁽¹⁸⁶⁾ Souter,⁽¹⁸⁷⁾ Thomas,⁽¹⁸⁸⁾ Ginsburg,⁽¹⁸⁹⁾ and Breyer.⁽¹⁹⁰⁾ Anticipating how the United States Supreme Court will resolve the appropriate methodology to be used in defining an employer, given that it granted a writ for certiorari,⁽¹⁹¹⁾ depends upon the Court's interpretation of legislative history, and whether the Court would consider the payroll method reasonable, as advocated by the EEOC.⁽¹⁹²⁾

When the United States Supreme Court reviews statutory construction of a statute that is administered by an agency, the Court must answer two questions:

First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.⁽¹⁹³⁾

Provided that the Court would not find a "clear" intent of Congress, regarding the appropriate methodology to be used in interpreting the definition of an employer under Title VII,⁽¹⁹⁴⁾ the Court would then need to determine whether the EEOC had a reasonable basis for its interpretation of Title VII's ambiguous language.⁽¹⁹⁵⁾

In EEOC v. Commercial Office Products Co.,⁽¹⁹⁶⁾ the United States Supreme Court declared when "the interpretation of ambiguous language in [Title VII exists] . . . the EEOC, the agency having primary enforcement responsibility, is entitled to deference where it is reasonable."⁽¹⁹⁷⁾ It should be noted, however, that four of the Justices who made up the majority opinion with respect to Parts I, II-A, and III in Commercial Office Products⁽¹⁹⁸⁾ have all been replaced.⁽¹⁹⁹⁾

Before Commercial Office Products was decided, there was a circuit court split between the First Circuit and the Tenth Circuit regarding the interpretation of "termination" under section 706(c) of Title VII.⁽²⁰⁰⁾ Commercial Office Products presented the issue of "whether a state agency's decision to waive its exclusive 60-day period for initial processing of a discrimination charge, pursuant to a worksharing agreement with the EEOC, `terminate[d]' the agency's proceedings."<sup>(201)</sup> The United States Court of Appeals for the First Circuit "upheld the EEOC's view that a waiver of the right to initially process a charge constitute[d] a `termination,' reasoning that the language of the Act [was] ambiguous and that the history and purposes of the Act support[ed] the EEOC's construction."⁽²⁰²⁾ The Tenth Circuit, however, held that the state agency had not terminated its authority "over the charge as the plain language of the statute required."⁽²⁰³⁾

The United States Supreme Court ruled in favor of the First Circuit's interpretation of "terminate" under section 706(c) of Title VII.⁽²⁰⁴⁾ Justice Marshall, with whom Justices Brennan, White, Blackmun, and O'Connor joined, declared "it is axiomatic that the EEOC's interpretation of Title VII, for which it has primary enforcement responsibility, need not be the best one by grammatical or any other standards. Rather, the EEOC's interpretation of ambiguous language need only be reasonable to be entitled to deference."⁽²⁰⁵⁾ A plurality, with regard to Parts II-B and II-C,⁽²⁰⁶⁾ then determined that the EEOC's interpretation of the word "terminate" under section 706(c) of Title VII was reasonable because it was supported by legislative history and other related Title VII sections.⁽²⁰⁷⁾

Commercial Office Products is relevant to decide the appropriate methodology of defining an employer under Title VII. The EEOC clearly interprets the statutory language of an employer under Title VII to include all employees on the payroll regardless of whether part-time employees were not at work on each working day.⁽²⁰⁸⁾ In Commercial Office Products, reasonableness was determined by comparing EEOC's interpretation of Title VII to its legislative history.⁽²⁰⁹⁾ The EEOC's interpretation of an employer under the payroll method was held to be reasonable in light of the legislative history reviewed in the First Circuit's Thurber⁽²¹⁰⁾ and Vera-Lozano⁽²¹¹⁾ decisions, as well as the Fifth Circuit's Dumas⁽²¹²⁾ decision. Therefore, provided that the Court does not initially determine the language of "each working day" in the definition of employer under Title VII to have a clear congressional intent,⁽²¹³⁾ Commercial Office Products dictates that the EEOC's payroll method is the correct methodology, because legislative history under Title VII provides a reasonable basis for adoption of the payroll method.⁽²¹⁴⁾

In 1991, the United States Supreme Court decided EEOC v. Arabian American Oil Co.⁽²¹⁵⁾ The issue presented to the Court was whether Title VII applied to United States citizens who worked for American corporations overseas.⁽²¹⁶⁾ The majority opinion, written by Chief Justice Rehnquist, along with Justices White, O'Connor, Kennedy, Souter and a separate concurrence by Justice Scalia⁽²¹⁷⁾ held that Title VII did not apply extraterritorially.⁽²¹⁸⁾ The majority reached its conclusion by noting that it was necessary for Title VII to explicitly state that it applied to employers outside of the United States.⁽²¹⁹⁾ All of the Justices in the majority, with the exception of Justice Scalia, overlooked Commercial Office Products by observing that deference to the EEOC, when the language of Title VII is ambiguous, "`"will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control."'"⁽²²⁰⁾ The EEOC declared that Title VII had explicit language that rendered it extraterritorial.⁽²²¹⁾ The majority, however, gave the EEOC little deference.⁽²²²⁾ Justice Scalia correctly applied the reasonable deference standard as announced in Commercial Office Products, but then determined that the EEOC's arguments were not reasonable.⁽²²³⁾ It should be noted that in Arabian American Oil, there was a "presumption against extraterritoriality" that worked against the reasonableness of the EEOC's interpretations.⁽²²⁴⁾ In a choice between the payroll method and the counting method, however, the EEOC is not faced with either a presumption against the payroll method or a presumption favoring the counting method.

Surprisingly, Justice O'Connor, who gave deference to the EEOC under a standard announced in Commercial Office Products, did not apply the same standard of deference in Arabian American Oil.⁽²²⁵⁾ Equally interesting is the dissent, written by Justice Marshall and joined by Justices Blackmun, and Stevens.⁽²²⁶⁾ Like Justice Scalia, the dissent applied the reasonableness standard announced in Commercial Office Products, however unlike Justice Scalia, the dissent held that the EEOC's interpretation of Title VII was reasonable.⁽²²⁷⁾ This is interesting because Justice Stevens three years earlier found EEOC's interpretation in Commercial Office Products to be unreasonable.⁽²²⁸⁾

Although Commercial Office Products has not been overturned, the fact that five of the Justices⁽²²⁹⁾ in Arabian American Oil not only ignored, but failed to mention the Commercial Office Products standard, may have unsettled the standard of deference that is to be given to the EEOC.⁽²³⁰⁾ Nonetheless, consistent jurisprudence would dictate that the Commercial Office Products reasonableness standard should be applied to allow deference to the EEOC's interpretation of a statutory provision under Title VII,⁽²³¹⁾ when the Court finds a clear lack of congressional intent.⁽²³²⁾

  Conclusion

The difficulty with resolving the circuit split revolves around the general rule that each word in a statute should have an independent unsuperfluous meaning.⁽²³³⁾ When Congress included the words "for each working day" in the definition of employer under Title VII and the ADEA, a literal interpretation means that part-time employees should not be counted unless they are physically at work on each working day.⁽²³⁴⁾ Congress, however, also imposed a definitional requirement that the "`employer have twenty [or fifteen] or more employees.'"⁽²³⁵⁾ Under a literal interpretation, if a person has fifteen part-time employees under Title VII, or twenty employees under the ADEA, then that person is an employer regardless of whether those employees were physically at work each working day.⁽²³⁶⁾ This creates an ambiguity in the definition of employer, requiring courts to look beyond the statute and interpret the legislative history to determine if there is clear congressional intent. Because the definition of an employer under Title VII was based on the Federal Unemployment Tax Act of 1954, the legislative history suggests that part-time employees should be counted regardless of whether they were at work on each working day.⁽²³⁷⁾ Because the definition of an employer under the ADEA is virtually identical to the definition of an employer under Title VII, legislative history under Title VII also supports the payroll method under the ADEA.⁽²³⁸⁾ Legislative history, however, also indicates that Title VII and the ADEA were not applicable to small businesses.⁽²³⁹⁾ In balancing the scope of ambiguous statutory language under Title VII and the ADEA, the United States Supreme Court should give deference to the EEOC, provided that the Court finds a lack of clear congressional intent regarding the appropriate counting methodology, follows the deferential standard announced in Commercial Office Products, and finds the EEOC's use of the payroll method reasonable in light of legislative history.⁽²⁴⁰⁾ The EEOC's interpretation of an employer under the payroll method is supported by legislative history and it is more rational than the counting method.⁽²⁴¹⁾ Therefore, provided that the United States Supreme Court finds the definition of employer under Title VII to be ambiguous, and it finds Commercial Office Products to be controlling regarding the standard of deference given to the EEOC,⁽²⁴²⁾ the Court should rule in favor of the payroll method during its 1996-1997 term in Walters v. Metropolitan Educational Enterprises, Inc.

Brent T. Carney^*

1. 42 U.S.C. §§ 2000e to 2000e-17 (1994).

2. See id. at § 2000e-5; see also infra notes 26-31 and accompanying text. Prior to the enactment of Title VII, claims of racial discrimination only could be brought under either the Fourteenth Amendment's Equal Protection Clause or the Fifth Amendment's Due Process Clause. See Bolling v. Sharpe, 347 U.S. 497, 499 (1954) (holding that the Due Process Clause of the Fifth Amendment reversely incorporates the Equal Protection Clause of the Fourteenth Amendment); Brown v. Board of Educ., 347 U.S. 483, 495 (1954) (holding that racial segregation denies equal protection under the Fourteenth Amendment); Strauder v. West Virginia, 100 U.S. 303, 310 (1879) (holding that the Fourteenth Amendment protects against discrimination based on race or color during jury selection). Prior to the enactment of Title VII, gender discrimination claims usually failed. See Muller v. Oregon, 208 U.S. 412, 423 (1908) (affirming a state statute that limited the workday for women employed at a laundry); Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 139 (1872) (affirming a state statute that prohibited women from practicing law). Because the Fourteenth Amendment applies only to states, an employer must be a state actor before a racial or gender based discrimination suit may be successfully brought under the Fourteenth Amendment's Equal Protection Clause. See Shelley v. Kraemer, 334 U.S. 1, 13 (1947) ("[The Fourteenth] Amendment erects no shield against merely private conduct, however discriminatory or wrongful." (footnote omitted)). Similarly, because the Fifth Amendment applies only to the federal government, only federal employees have a cause of action for racial and gender discrimination under the equal protection component of the Fifth Amendment's Due Process Clause. See Davis v. Passman, 442 U.S. 228, 234 (1979) ("In numerous decisions, this Court `has held that the Due Process Clause of the Fifth Amendment forbids the Federal Government to deny equal protection of the laws.'" (quoting Vance v. Bradley, 440 U.S. 93, 95 n.1 (1979))). Title VII, however, allows a person to petition the EEOC to bring a claim against an employer for racial and gender discrimination without needing to prove either "state action" under the Fourteenth Amendment or employment by a federal employer under the Fifth Amendment. See 42 U.S.C. § 2000e-5 (1994); see also infra notes 26-31 and accompanying text.

3. 29 U.S.C. §§ 621-634 (1994).

4. See infra notes 35-38 and accompanying text.

5. To be an employer under Title VII, 15 employees must have worked for 20 weeks prior to or during the year of the alleged discriminatory act. See 42 U.S.C. § 2000e(b) (1994). The ADEA requires 20 employees to have worked for 20 weeks prior to or during the year of the alleged discriminatory act. See 29 U.S.C. § 630(b) (1994).

6. Compare Thurber v. Jack Reilly's, Inc., 717 F.2d 633, 634 (1st Cir. 1983) (counting the number of employees based upon the number of persons appearing on the payroll) with Zimmerman v. North Am. Signal Co., 704 F.2d 347, 354 (7th Cir. 1983) (counting the number of employees based upon the number of hours actually worked during a given week).

7. Justice Breyer replaced former Justice Harry A. Blackmun on August 3, 1994. See Chief Justice Administers Oath to Breyer, Boston Globe, Aug. 4, 1994, at A10 ("Breyer, 55, the former chief justice of the First US Circuit Court of Appeals in Boston, was confirmed by the Senate 87-9 on Friday.").

8. See Thurber, 717 F.2d at 634 (stating that the payroll method is defined as a methodology whereby "the number of employees [is] determined by examining the payroll and not by counting the number of employees who [actually] report to work").

9. See Zimmerman, 704 F.2d at 353-54. The counting method is defined as a methodology whereby part-time workers "are counted as employees only on days when they are actually at work and on days of paid leave." Id. at 353.

10. The United States Supreme Court granted certiorari on March 18, 1996, allowing an appeal of EEOC v. Metropolitan Educational Enterprises, Inc., 60 F.3d 1225 (7th Cir. 1995), cert. granted sub nom. Walters v. Metropolitan Educ. Enters., Inc., 116 S. Ct. 1260 (1996). See Walters v. Metropolitan Educ. Enters., Inc., 116 S. Ct. 1260, 1260 (1996). The issue presented to the Court in the appellant's petition for certiorari was whether "Title VII's jurisdictional definition of `employer' [is] satisfied when [an] employer maintains 15 or more employees on payroll for [a] requisite number of weeks even though fewer than 15 employees report to work or are on paid leave on each day of each such week, as to which courts of appeals are in direct conflict?" See Walters v. Metropolitan Educ. Enters., Inc., 64 U.S.L.W. 3255, 3255 (U.S. Oct. 3, 1995) (No. 95-259). On September 20, 1996, the United States Supreme Court granted a motion allowing the Acting Solicitor General to present oral argument as an amicus curiae. See Walters v. Metropolitan Educ. Enters., Inc., 65 U.S.L.W. 3204, 3204 (U.S. Sept. 20, 1996) (No. 95-259).

11. See infra notes 16-40 and accompanying text.

12. See infra notes 41-146 and accompanying text.

13. See infra notes 147-81 and accompanying text.

14. See infra notes 182-232 and accompanying text.

15. See infra notes 233-42 and accompanying text.

16. 42 U.S.C. § 2000e-2(a)(1) (1994).

17. Griggs v. Duke Power Co., 401 U.S. 424, 429-30 (1971) (holding that employment tests that appear on their face to be nondiscriminatory violate Title VII if they actually cause discrimination and there is not a nexus between the test and the requirements of the job).

18. 42 U.S.C. § 2000e(b) (1994).

19. See Thurber v. Jack Reilly's, Inc., 717 F.2d 633, 634 (1st Cir. 1983) ("Congressional debate on enactment of Title VII revealed concern for the over-regulation of small family or neighborhood businesses . . . .").

20. During the debate, Senator Cotton declared:

I know that many peaceful settlements do not result because such settlements are fair. Rather they are made because a man must yield or he must go through the courts. It is the threat--the pistol at one's head.

 . . . Title VII is the most dangerous part of it, because it would lead the Federal Government with all of its power . . . into the way of dealing with a small businessman who can ill afford to protect himself, and in many cases his actions will be judged by the facts of the race or color involved and not by the facts of the case.110 Cong. Rec. 13,092 (1964) (statement of Sen. Cotton).

21. See id. at 13,093.

22. During the debate, Senator Humphrey declared:

We have provided that in the first year after enactment of the civil rights statute there will be no enforcement at all . . . .

We have provided that in the second year employers of 100 or more shall come under the act. In the third year, employers of 75 or more shall come under the act; in the fourth year, employers of 50 or more; in the fifth year, employers of 25 or more.110 Cong. Rec. 13,088 (1964) (statement of Sen. Humphrey).

23. Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, 86 Stat. 103 (codified as amended in scattered sections of 42 U.S.C. § 2000e (1994)).

24. See 42 U.S.C. § 2000e-5 (1994); see also H.R. Rep. No. 92-238, at 1 (1972), reprinted in 1972 U.S.C.C.A.N. 2137, 2137 ("The basic purpose of H.R. 1746 is to grant the Equal Employment Opportunity Commission authority to issue, through well established procedures, judicially enforceable cease and desist orders.").

25. See Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, 86 Stat. 103, 103 (codified as amended at 42 U.S.C. § 2000e(b) (1994)). The original amendments defined an employer as a person having at least eight employees: "One year after enactment, coverage is extended to employers and labor unions with eight or more employees or members, a reduction from the present requirement of 25 employees or members." H.R. Rep. No. 92-238, at 1 (1972), reprinted in 1972 U.S.C.C.A.N. 2137, 2137. Broadening the scope of Title VII to include employers with as few as eight employees, however, was debated in the Senate: "The pending business is an amendment . . . which would seek to nullify the effort of the sponsors of the bill to reduce from 25 to 8 the minimum number of employees that an employer must have in order to come under the provisions of the EEOC bill." 118 Cong. Rec. 3132 (1972) (statement of Sen. Allen). The Senate compromised by reducing the number of employees from 25 to 15: "The figure 8 was in the bill as it was brought to the Senate, and after this period of debate and conciliation, we arrived at the figure of 15, which was overwhelmingly approved by the Senate." 118 Cong. Rec. 4499 (1972) (statement of Sen. Williams).

26. 42 U.S.C. § 2000e-5(e)(1) (1994).

27. See id.

28. See id. § 2000e-5(f)(1).

29. See id.

30. See id.

31. See id.

32. See Goger v. H.K. Porter Co., 492 F.2d 13, 15 (3d Cir. 1974) ("Congress recognized that the 1964 Act left untouched a major problem--age discrimination--and consequently directed the Secretary of Labor to make a study of the full magnitude of this problem.").

33. See 29 U.S.C. §§ 621-634 (1994).

34. Id. § 621(b).

35. See id. § 630(b) (defining an employer as a person having at least 20 employees "for each working day in each of twenty or more calendar weeks"). The ADEA of 1967 originally defined an employer as a person having at least 25 employees. See Age Discrimination in Employment Act of 1967, Pub. L. No. 90-202, § 11(b), 81 Stat. 658, 662, repealed by Fair Labor Standards Amendments of 1974, Pub. L. No. 93-259, § 28(a)(1), 88 Stat. 55, 78. The scope of the ADEA, however, was extended after the Fair Labor Standards Act of 1974 reduced the requisite number of employees from 25 to 20: "The first sentence of section 11(b) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 630(b)) is amended by striking out `twenty-five' and inserting in lieu thereof `twenty.'" Fair Labor Standards Amendments of 1974, Pub. L. No. 93-259, § 28(a)(1), 88 Stat. 55, 78. The congressional record is silent regarding debates about lowering the number of employees from 25 to 20. See 120 Cong. Rec. 8759-64 (1974).

36. See 29 U.S.C. § 631(a) (1994).

37. Id. § 626(d)(1).

38. See id. § 626(d)(2).

39. Id. § 626(d).

40. Id.

41. See EEOC v. Metropolitan Educ. Enters., Inc., 60 F.3d 1225, 1229 (7th Cir. 1995), cert. granted sub nom. Walters v. Metropolitan Educ. Enters., Inc., 116 S. Ct. 1260 (1996); see also supra note 6 and accompanying text.

42. See supra note 16 and accompanying text.

43. 42 U.S.C. § 2000e(b) (1994).

44. See 29 U.S.C. § 630(b) (1994); see also Zimmerman v. North Am. Signal Co., 704 F.2d 347, 352 (7th Cir. 1983) ("[29 U.S.C. §630(b)] is nearly identical to the definition of employer in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e(b).").

45. 29 U.S.C. § 630(b) (1994).

46. See Zimmerman, 704 F.2d at 352-53 (addressing the method for determining the number of employees under either Title VII or the ADEA, the Zimmerman court declared "there is little legislative history or case law to guide us in interpreting these provisions").

47. See, e.g., EEOC v. Metropolitan Educ. Enters., Inc., 60 F.3d 1225, 1227 (7th Cir. 1995) (regarding the number of methodologies that have arisen, the Metropolitan court noted that "two have emerged from case law"), cert. granted sub nom. Walters v. Metropolitan Educ. Enters., Inc., 116 S. Ct. 1260 (1996).

48. See, e.g., Thurber v. Jack Reilly's, Inc., 717 F.2d 633 (1st Cir. 1983); Dumas v. Town of Mount Vernon, 612 F.2d 974 (5th Cir. 1980). The Metropolitan court observed that "the First and Fifth have adopted the payroll method, as have a number of district courts." Metropolitan, 60 F.3d at 1229 (footnote omitted). Although only the United States Circuit Court of Appeals for the First and Fifth Circuits have adopted the payroll method, the Metropolitan court cites federal district courts within the Second, Third, Fourth, Sixth, and Tenth Circuits that have also adopted the payroll method. See id. at 1229 n.5.

49. See, e.g., Metropolitan, 60 F.3d at 1230; EEOC v. Garden & Assocs., Ltd., 956 F.2d 842 (8th Cir. 1992). The Metropolitan court observed that "the Eighth Circuit and several other district courts have adopted the [Seventh Circuit's] approach." Metropolitan, 60 F.3d at 1229 (footnote omitted). Although only the United States Circuit Court of Appeals for the Seventh and Eighth Circuits have adopted the counting method, the Metropolitan court cites federal district courts within the Sixth, Ninth, and Eleventh Circuits that have adopted the counting method. See id. at 1229 n.6.

50. Zimmerman, 704 F.2d at 353.

51. The EEOC refers to the counting method as the "Zimmerman" approach:

Under the Zimmerman approach, an employee who works two hours on each day of a five-day work week is counted towards the fifteen employee requirement [of Title VII] for that week. Yet, an employee who works eight hours a day for four days of a five-day work week is not counted on the fifth day and therefore, not counted for that week, even though this employee would have worked more than three times as many hours.Policy Guidance: Whether Part-time Employees are Employees Within the Meaning of § 701(b) of Title VII and § 11(b) of the ADEA, 2 EEOC Compl. Man. (BNA) No. 139, at N-3315 (Apr. 20, 1990) [hereinafter Policy Guidance]. In Zimmerman, the Seventh Circuit announced that the ADEA requires that "an employer must have twenty or more employees for each working day of a week before that week can be counted toward the jurisdictional minimum." Zimmerman, 704 F.2d at 353-54.

52. 704 F.2d 347 (7th Cir. 1983).

53. Id. at 349. Sam Zimmerman was terminated at the age of 67. See id. at 350. He owned "approximately one third of the corporation's stock" and was vice president of North American Signal Company "from 1963 until January 26, 1979." Id.

54. See Zimmerman v. North Am. Signal Co., No. 81 Civ. 348 (N.D. Ill. Sept. 15, 1981) (LEXIS, Genfed Library, Dist File); see also Zimmerman, 704 F.2d at 350 ("Zimmerman filed suit in district court on January 22, 1981. . . . North American moved to dismiss on April 7, 1981. . . . The court granted North American's Motion to Dismiss on September 15, 1981 . . . holding that North American was not an `employer' as defined by the [ADEA]."). Thereafter, Zimmerman filed a Motion to Vacate, asking the district court "to reconsider North American's Motion to Dismiss"; the district court denied Zimmerman's Motion to Vacate on February 9, 1982. Zimmerman, 704 F.2d at 350.

55. Zimmerman, 704 F.2d at 350.

56. See Zimmerman v. North Am. Signal Co., No. 81 Civ. 348 (N.D. Ill. Sept. 15, 1981) (LEXIS, Genfed Library, Dist File) (taking "into account vacation time allowed to hourly-paid employees"). Under the counting method "hourly paid workers are counted as employees only on days when they are actually at work and on days of paid leave. . . . But if the number of employees [falls] below twenty on any day of the week, that week [is] not counted, regardless of the number of employees counted on the rest of the days." Zimmerman, 704 F.2d at 353.

57. See Zimmerman, 704 F.2d at 350 n.1 ("According to North American's calculations, it had twenty or more employees for each working day for 15 weeks in 1978 and for 10 weeks in 1979."). Under the ADEA: "The term `employer' means a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year." 29 U.S.C. § 630(B) (1994) (emphasis added). Because Zimmerman sued North American under the ADEA, a federal statute, and diversity of citizenship was not satisfied, the United States District Court for the Northern District of Illinois had federal-question subject matter jurisdiction only if North American was considered an employer under the ADEA. See Zimmerman v. North Am. Signal Co., No. 81 Civ. 348 (N.D. Ill. Sept. 15, 1981) (LEXIS, Genfed Library, Dist File). Once the district court concluded that North American was not an employer under the ADEA, the district court determined that it did not have federal-question subject matter jurisdiction. See id.

58. See Zimmerman, 704 F.2d at 353 ("This case presents a close numerical question. If North American is correct in its method of calculation, it barely misses inclusion in the provision. If Zimmerman is correct, North American barely meets the requirement."). Under the counting method, North American was able to dismiss the week ending February 2, 1979, because "North American's analysis show[ed] nineteen employees on Friday and twenty employees on Monday through Thursday. Since the count fell below twenty on Friday, North American [did] not count this week toward the jurisdictional minimum." Id. However, if the counting method for the week ending February 2, 1979, was based on "counting the number of workers on the payroll for each work week. . . . the week ending February 2, 1979, would [have been] included toward the jurisdictional minimum." Id.

59. See Zimmerman, 704 F.2d at 354.

60. 29 U.S.C. § 630(b) (1982) (emphasis added). The Seventh Circuit stated that "[a]s a general rule, a court should not construe a statute in a way that makes words or phrases meaningless, redundant, or superfluous." Zimmerman, 704 F.2d at 353.

61. See Zimmerman, 704 F.2d at 354 ("Under [Mr. Zimmerman's] analysis, an hourly paid worker who works two hours each Monday would be counted as an employee for every day of the week, a result we believe would be contrary to the explicit definitional restriction chosen by Congress.").

62. See id. ("The decision of the district court dismissing the case for lack of subject matter jurisdiction is affirmed."). The Seventh Circuit's decision, however, included the caveat that "[w]e do not reach and express no opinion on . . . . the method of counting hourly paid workers on paid leave, the method of counting hourly paid workers on non-paid standby status, and the method of counting salaried workers." Id. at 354 n.6.

63. See EEOC v. Metropolitan Educ. Enters., Inc., 864 F. Supp. 71 (N.D. Ill. 1994), aff'd, 60 F.3d 1225 (7th Cir. 1995), and cert. granted sub nom. Walters v. Metropolitan Educ. Enters., Inc., 116 S. Ct. 1260 (1996).

64. Id.

65. Id. at 72.

66. Id.

67. See id. at 73; see also supra notes 43-45 and accompanying text for a discussion of the definition of an employer under the ADEA and Title VII. The only exception, of course, is that the ADEA requires an employer to have at least 20 employees, while Title VII requires that an employer have at least 15 employees. Compare 42 U.S.C. § 2000e(b) (1994) (defining an employer as a person with at least 15 employees) with 29 U.S.C. § 630(b) (1994) (defining an employer as a person with at least 20 employees); see also Metropolitan, 864 F. Supp. at 73 ("`Because Title VII and the ADEA share "a similar purpose--to stamp-out discrimination in various forms--cases construing the definitional provisions of one [statute] are persuasive authority" when interpreting the provisions of the other.'" (alteration in original) (quoting Hayden v. LA-Z-Boy Chair Co., 9 F.3d 617, 619 (7th Cir. 1993) (quoting Hyland v. New Haven Radiology Assocs., 794 F.2d 793, 796 (2d Cir. 1986)))).

68. See Metropolitan, 864 F. Supp. at 72 ("Metropolitan had fifteen or more employees on its payroll for forty-seven weeks in 1990, but that in only nine of those weeks were there fifteen or more employees actually present at work or on paid leave on each working day of the week.").

69. Id. at 73.

70. See id. ("We will therefore apply the employee counting method first set forth in Zimmerman and later applied in the Title VII context by this court in Norman v. Levy, 767 F. Supp. 1441, 1449 (N.D. Ill. 199[0])."). In Norman v. Levy, Patricia Norman claimed "she was the victim of sex discrimination while employed by Tyra [Cosmetics, Inc.]." Norman v. Levy, 756 F. Supp. 1060, 1061 (N.D. Ill. 1990). The Norman court applied the counting method adopted in Zimmerman to a Title VII claim and dismissed the claim for lack of subject matter jurisdiction because the number of employees was below fifteen, the threshold limit to be considered an employer under Title VII. See id. at 1064-65. The Norman court also addressed the counting of salaried employees, an issue left unresolved by the Zimmerman court, and declared that "salaried employees [are] employees `for every day of the week they are on the payroll, whether or not they were actually at work on a particular day.'" Id. at 1064 (quoting Zimmerman, 704 F.2d at 353).

71. Metropolitan, 864 F. Supp. at 73.

72. See id. Under the counting method, Metropolitan only had "fifteen employees either present at work or on paid leave each day of the working week for only nine weeks of 1990. Since this falls below the jurisdictional minimum of twenty weeks, Metropolitan cannot be subject to Title VII liability for the calendar year 1990." Id. (citation omitted).

73. See EEOC v. Metropolitan Educ. Enters., Inc., 60 F.3d 1225, 1226 (7th Cir. 1995), cert. granted sub nom. Walters v. Metropolitan Educ. Enters., Inc., 116 S. Ct. 1260 (1996).

74. See id. at 1228-29. The EEOC's first argument was based on an analogy between Title VII and the Family and Medical Leave Act (FMLA). See id. The second argument pointed out that "there is an existing Circuit split, not a settled judicial interpretation, regarding the correct means of determining who is an employer." Id. at 1229.

75. Id. at 1228. "The FMLA defines an employer as `any person engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.'" Id. at 1228 n.4 (quoting 29 U.S.C. § 2611(4)(A)(i) (1994)). Although the payroll method is not explicitly stated as the method to be used in counting employees under the FMLA, the EEOC argued that a Senate Report for the FMLA, which stated that "`"employees for each working day" is intended to mean "employ" in the sense of maintain on the payroll'" should overturn the Zimmerman holding. See id. at 1228 (quoting S. Rep. No. 103-3, at 21 (1993), reprinted in 1993 U.S.C.C.A.N. 3, 24 (quoting 42 U.S.C. § 2000e(b) (1988))).

76. Id. at 1228-29 ("As the District of Columbia Circuit recently observed, `[a] congressional report, even a conference report, is not legislation. . . . and it does not change the law.'" (quoting In re North, 50 F.3d 42, 46 (D.C. Cir. 1995))).

77. Id. at 1228.

78. See id. at 1229 ("Plaintiffs also argue that judicial and regulatory authority from other Circuits and from the EEOC support overruling Zimmerman. Among our sister Circuits, the First and Fifth have adopted the payroll method, as have a number of district courts; the Eighth Circuit and several other district courts have adopted the Zimmerman approach." (footnotes omitted)).

79. See Metropolitan, 60 F.3d at 1229 ("[T]hat some courts have disagreed with our analysis while others have adopted it hardly presents a pressing reason to overturn settled precedent.").

80. See id. at 1230. The EEOC also argued that a "parade of horribles . . . could result from continued application of Zimmerman, most notably an employer's ability to evade the strictures of anti-discrimination legislation simply by structuring operations to avoid having the jurisdictional minimum present on each working day." Id.

81. See id. ("Failing to see a compelling reason for overturning our Circuit precedent in Zimmerman, we affirm the judgment of the district court dismissing plaintiffs' suit for lack of jurisdiction."). Satisfied that the EEOC did not provide compelling reasons to overturn Zimmerman, but dissatisfied with the split among the circuits, Circuit Judge Ripple wrote a separate concurring opinion in which he declared: "This issue is one, however, that deserves definitive legislative attention. . . . The scope of Title VII ought to be the same in Boston and New Orleans as it is in Chicago." Id. (Ripple, J., concurring).

82. See EEOC v. Garden & Assocs., Ltd., 956 F.2d 842 (8th Cir. 1992). This case was based on precedent established by McGraw v. Warren County Oil Co., 707 F.2d 990 (8th Cir. 1983). See Garden, 956 F.2d at 843. McGraw rejected that "part-time workers who did not work each day of the work week were `employees' for the entire week." McGraw, 707 F.2d at 991.

83. 56 Fair Empl. Prac. Cas. (BNA) 1427 (S.D. Iowa 1991), aff'd, 956 F.2d 842 (8th Cir. 1992).

84. See id. at 1428.

85. See id. at 1428-29. The district court applied the precedent established in McGraw, which favored the counting method: "`In McGraw . . . [t]he district court rejected appellants' assertions that . . . part-time workers who did not work each day of the work week were `employees' for the entire week . . . .'" Id. at 1429 (quoting McGraw, 707 F.2d at 991).

86. See id. at 1428 ("The first paragraph itself is fatal to plaintiff's contention that this court has jurisdiction. Plaintiff there agrees that defendant did not have the requisite number of employees . . . who worked or were on paid leave each working day of each of twenty weeks in a calendar year."). The parties stipulated that under the counting method, the minimum threshold of twenty employees working for twenty weeks in a current or proceeding year was not met. See id. However, "[t]he parties further stipulate[d] that using the method of counting all employees who are on the payroll and who were not terminated in any given week, the Defendant had the requisite number of twenty employees in 1987." Id.

87. See Garden, 956 F.2d at 843.

The sole issue on this appeal is whether part-time employees who are neither working nor on paid leave during each day of the work week should be counted toward a company's total number of employees under the ADEA. We find that they should not.

This case is controlled by McGraw v. Warren County Oil . . . .

. . . .

The district court's dismissal of the claim for lack of subject matter jurisdiction is affirmed.Id.

88. McGraw, 707 F.2d at 991. Dismissal in McGraw was also based on the fact that directors of a corporation were not considered employees, and that a calendar year refers to 12 consecutive months "not the period from January 1 through December 31." Id.

89. See id. ("[D]irectors of [a] corporation are not employees and paid hourly workers are not employees on days not worked." (citing Zimmerman v. North Am. Signal Co., 704 F.2d 347 (7th Cir. 1983))).

90. See id. The district court in McGraw v. Warren County Oil Co., 32 Fair Empl. Prac. Cas. (BNA) 1798 (S.D. Iowa 1982), aff'd, 707 F.2d 990 (8th Cir. 1983), dismissed the ADEA's claims, stating that a company's board of directors were not employees and that "Congress, in enacting ADEA, did not have in mind plaintiffs' concept of any period of twelve consecutive months within the two years in question." Id. at 1800. The district court determined that the definition of employer under the ADEA was similar to the definition of employer under Title VII: "The pertinent part of the statutory definition at issue here is identical to that used in Title VII . . . ." Id. The district court then examined the legislative history of Title VII, focusing its concern on the Senate's disapproval of defining the word employer with definite restrictions: "The statutory definition of employer in H.R. 7152 met with disapproval in the Senate where the definition was viewed as too indefinite to be enacted into law." Id. (citing 110 Cong. Rec. 7216, 12,722, 13,087 (1964)).

91. See Vera-Lozano v. International Broad., 50 F.3d 67, 69-70 (1st Cir. 1995); Thurber v. Jack Reilly's, Inc., 717 F.2d 633, 634-35 (1st Cir. 1983). In the context of Title VII, the payroll method "looks at the number of employees maintained on an employer's payroll within a given week: if this number is at least 15 for at least 20 calendar weeks the jurisdictional minimum is satisfied, regardless of whether or not every employee on the payroll shows up for work every day of the calendar week." EEOC v. Metropolitan Educ. Enters., Inc., 60 F.3d 1225, 1227 (7th Cir. 1995), cert. granted sub nom. Walters v. Metropolitan Educ. Enters., Inc., 116 S. Ct. 1260 (1996).

92. 717 F.2d 633 (1st Cir. 1983).

93. See id. at 633-34.

94. See id. at 634.

95. See Thurber v. Jack Reilly's, Inc., 521 F. Supp. 238, 240 (D. Mass. 1981) (stating that the court has jurisdiction to adjudicate the Title VII claim), aff'd, Thurber v. Jack Reilly's, Inc., 717 F.2d 633 (1st Cir. 1983); see also Thurber, 717 F.2d at 634 ("The district court . . . denied the motion to dismiss on the basis that the number of employees should be determined by examining the payroll and not by counting the number of employees who report to work.").

96. See Thurber, 717 F.2d at 635.

97. See supra note 59 and accompanying text.

98. Thurber, 717 F.2d at 634. The First Circuit declared: "Every court which has addressed the issue has held that regular part-time employees are employees within the meaning of § 2000e(b)." Id. Ironically, one court referred to an Eighth Circuit decision when it noted: "It has been consistently held that Title VII is remedial in nature and should be given the broadest interpretation consistent with its purpose." Pedreyra v. Cornell Prescription Pharmacies, Inc., 465 F. Supp. 936, 941 (D. Colo. 1979) (citing Parham v. Southwestern Bell Tel. Co., 433 F.2d 421 (8th Cir. 1970)). The Pedreyra court also cited an Eighth Circuit case to support its observation that "it has been held that liberal construction should also be given to the definition of `employer' so as to carry out the Congressional purpose of eliminating inconvenience, unfairness and humiliation of discrimination." Pedreyra, 465 F. Supp. at 941 (citing Baker v. Stuart Broad. Co., 560 F.2d 389 (8th Cir. 1977)). Because the definition of an employer under the ADEA is virtually identical to the definition of an employer under Title VII, the Eighth Circuit's liberal interpretation of Title VII in Parham and Baker presents a discrepancy with its adoption of the counting method to claims arising under the ADEA. Compare Baker, 560 F.2d at 391 (stating that under Title VII, "liberal construction is also to be given to the definition of `employer'") and Parham, 433 F.2d at 425 (stating that Title VII "is to be accorded a liberal construction") with EEOC v. Garden & Assocs., 956 F.2d 842, 843 (8th Cir. 1992) (interpreting the definition of employer under the ADEA narrowly by applying the counting method) and McGraw v. Warren County Oil Co., 707 F.2d 990, 991 (8th Cir. 1983) (affirming dismissal of an ADEA claim based on the counting method).

99. See Thurber, 717 F.2d at 634.

Senator Dirksen, a co-sponsor of Title VII, stated that the definition of "employer" in Title VII was borrowed from the Unemployment Compensation Act. . . . [A]n employee is to be counted under the Unemployment Compensation Act for each day that an employment relationship exists regardless of whether the employee reported to work each day. . . . Title VII was considered a generally remedial statute, and the prevailing majority in Congress intended to give it broad effect.Id. at 634-35 (citations omitted).

100. Id. at 635.

101. Id. ("The burden on such businesses, however, is the relatively modest one of forbearance from discrimination in employment.").

102. Id.

103. See id. at 634 ("Jack's . . . operates by having approximately 9 employees report to work each day. Some of these employees work full time; most, however, work part time. In order to remain open 7 days a week, Jack's maintained more than 15 employees on the payroll for more than 20 weeks during the relevant time although no more than 11 employees ever reported for work on any one day."). In other words, under the counting method, Jack's had 11 employees, but under the payroll method, Jack's had 15 or more employees.

104. See Vera-Lozano v. International Broad., 50 F.3d 67, 69 (1st Cir. 1995) ("[International Broadcasting Corp.] argues that part-time employees should be counted as employees for a given week only if they actually work all five days of that week. We considered this question in Thurber v. Jack Reilly's Inc., 717 F.2d 633 (1st Cir. 1983), and found the law in this circuit to be to the contrary.").

105. 50 F.3d 67 (1st Cir. 1995).

106. See id. at 68.

107. See id.

108. See id. at 69.

109. Id.

110. See id.

111. See Vera-Lozano, 50 F.3d at 69.

112. See id.

IBC made a Rule 50 motion for judgment as a matter of law at the close of Vera's case. IBC alleged that it was not covered by Title VII because it did not have the requisite number of employees. . . .

. . . .

IBC argues that part-time employees should be counted as employees for a given week only if they actually work all five days of that week.Id.

113. See id. at 70 ("Counting both part-time and full-time employees on the payroll during 1991, there is sufficient evidence on the record in the form of testimony of Vera and Román to support finding that IBC was an employer as defined by Title VII.").

114. See id. at 71 ("IBC maintains that the trial court erred by allowing the jury to award compensatory damages based on a retroactive application of the Civil Rights Act of 1991. However, the verdict form correctly allowed for an award of compensatory damages based on the violation of either federal or Puerto Rico law."). Interestingly, only 118 days after the First Circuit's Vera-Lozano decision, which based its opinion on its Thurber decision, the Seventh Circuit cited to numerous payroll method cases, including Thurber, and held that the payroll method was inappropriate due to the express statutory language of Title VII. See EEOC v. Metropolitan Educ. Enters., Inc., 60 F.3d 1225, 1229 n.5 (7th Cir. 1995), cert. granted sub nom. Walters v. Metropolitan Educ. Enters., Inc., 116 S. Ct. 1260 (1996). Vera-Lozano was decided on March 22, 1995. See Vera-Lozano, 50 F.3d at 67. Metropolitan was decided on July 18, 1995. See Metropolitan, 60 F.3d at 1225.

115. See supra notes 99-102 and accompanying text.

116. Vera-Lozano, 50 F.3d at 70 (citation omitted).

117. See Dumas v. Town of Mount Vernon, 436 F. Supp. 866 (S.D. Ala. 1977), aff'd in part and rev'd in part, 612 F.2d 974 (5th Cir. 1980). The Fifth Circuit affirmed "the dismissal of all claims except those against the Personnel Board arising under Title VII of the Civil Rights Act of 1964." Dumas v. Town of Mount Vernon, 612 F.2d 974, 976 (5th Cir. 1980).

118. See Dumas, 612 F.2d at 979.

119. 612 F.2d 974 (5th Cir. 1980).

120. See id. at 976.

121. See id.

122. See id.

123. See id.

124. See id. at 979 n.7 ("[In order] to determine employer status under the Act, `one looks to each of the "working days" within the calendar weeks reviewed to see whether there were 15 or more individuals who were on the payroll regardless of whether they were actually working full time or on any particular day.'" (quoting Barbara L. Schlei & Paul Grossman, Employment Discrimination Law 837-38 (1976))).

125. See Dumas, 612 F.2d at 979 n.7 (citing Pascutoi v. Washburn-McReavy Mortuary, Inc., 11 Fair Empl. Prac. Cas. (BNA) 1325 (D. Minn. 1975)). Note that although specific district courts within the Eighth Circuit adopted the payroll method in 1975, the United States Court of Appeals for the Eighth Circuit first adopted the counting method in 1983. See McGraw v. Warren County Oil Co., 707 F.2d 990, 991 (8th Cir. 1983).

126. Pascutoi, 11 Fair Empl. Prac. Cas. (BNA) at 1326.

127. Id.

128. See Dumas, 612 F.2d at 979-80.

129. See Cohen v. S.U.P.A. Inc., 814 F. Supp. 251, 255-56 (N.D.N.Y. 1993).

130. 814 F. Supp. 251 (N.D.N.Y. 1993).

131. See id. at 253.

132. See id.

133. See id. at 252-53. Under the ADEA, a determination of the methodology to be employed in counting part-time employees was necessary because "[a]lthough S.U.P.A./Mail Boxes employs twenty or more persons over a twenty or more week period, most of those employees are part-time employees." Id. at 254. Cohen advocated the payroll method, citing "EEOC Policy Statement No. 915-052 (April 20, 1990) . . . agreeing with the First and Fifth Circuits." Id. S.U.P.A./Mail Boxes advocated the counting method. See id. (citing Zimmerman v. North Am. Signal Co., 704 F.2d 347 (7th Cir. 1983)).

134. See id. at 255 ("The correct determination requires the court to examine the number of employees on the payroll of a business over a twenty week period, and not the number of employees who happen to work on any given day.").

135. See id. at 256 ("Therefore, since Congress patterned the ADEA after Title VII, and courts construing Title VII have counted part-time employees regardless of whether the employee reported to work each day, then part-time employees are counted to fulfill the jurisdictional requirement of the ADEA.").

136. Cohen, 814 F. Supp. at 256 n.13 (quoting Policy Guidance, supra note 51, at N:3313).

137. Id. at 256 (citation omitted). The court also cited case law supporting the payroll method, including the First Circuit's Thurber decision and the Fifth Circuit's Dumas decision. See id.

138. See id. at 262 ("In sum, the court finds that: (1) S.U.P.A./Mail Boxes is an `employer' within the meaning of the ADEA . . . and (4) there exists issues of fact which preclude summary judgment.").

139. See Gorman v. North Pittsburgh Oral Surgery Assocs., 664 F. Supp. 212 (W.D. Pa. 1987).

140. 664 F. Supp. 212 (W.D. Pa. 1987).

141. See id. at 213.

142. See id. at 214 ("Defendant finds support for [the counting method] in a decision of the Court of Appeals for the Seventh Circuit . . . ."). North Pittsburgh employed "four oral surgeons, twelve full time staff members and six part-time employees." Id. at 214 n.1. North Pittsburgh claimed that since "it had no more than sixteen full time employees and never more than one part-time employee . . . on any given day during the period in question," it did not meet the threshold of twenty employees to be considered an employer under the ADEA. Id. at 214.

143. Id. at 214.

144. Id.

145. Id.

146. See Gorman, 664 F. Supp. at 216.

147. Pub. L. No. 83-591, 68A Stat. 3, 447 (codified as amended at 26 U.S.C. § 3306(a)(1) (1994)). During a Senate debate on the definition of an employer under Title VII, Senator Dirksen proclaimed "we undertook to provide for seasonal workers, by taking the language out of the Unemployment Compensation Act." 110 Cong. Rec. 13,087 (1964) (statement of Sen. Dirksen).

148. Cohen v. S.U.P.A. Inc., 814 F. Supp. at 251, 255-56 (N.D.N.Y. 1993) (quoting Thurber v. Jack Reilly's, Inc., 717 F.2d 633, 634 (1st Cir. 1983)).

149. See id. at 256 n.14 ("For example, in the Worker Adjustment and Retraining Notification Act, Congress specifically excluded part-time employees for the definition of `employer.'" (citing 29 U.S.C. § 2101(a)(1)(A) (1988))).

150. 29 U.S.C. §§ 2101-2109 (1994).

151. See 29 U.S.C. § 2101(a)(1) (1994) ("[T]he term `employer' means any business enterprise that employs-- (A) 100 or more employees, excluding part-time employees . . . ."); see also Cohen v. S.U.P.A. Inc., 814 F. Supp. 251, 256 n.14 (N.D.N.Y. 1993).

152. Compare 29 U.S.C. § 2101(a)(1)(A) (1994) (defining an employer as a business having at least 100 employees, but expressly excluding part-time employees) with 42 U.S.C. § 2000e(b) (1994) (defining an employer as a person affecting interstate commerce having at least 15 employees) and 29 U.S.C. § 630(b) (1994) (defining an employer as a person affecting interstate commerce having at least 20 employees).

153. See Cohen, 814 F. Supp. at 256 ("`It is appropriate to assume that since Congress specifically modeled the term `employer' from the Unemployment Compensation Act, it was aware of the enforcing agency's interpretations of `employer,' and intended that `employer' under Title VII would be interpreted in the same manner.'" (quoting Policy Guidance, supra note 51, at N:3314)).

154. See supra notes 149-51 and accompanying text.

155. 29 U.S.C. §§ 2611-2654 (1994).

156. The Family and Medical Leave Act of 1993 defines employer as "any person engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year." 29 U.S.C. § 2611(4)(A)(i) (1994).

157. Cohen, 814 F. Supp. at 256 (emphasis added) (citation omitted).

158. Senate Report 103-3 declares:

The [definition of employer under the FMLA] parallels language used in Title VII of the Civil Rights Act of 1964 and is intended to receive the same interpretation. As most courts and the EEOC have interpreted this language, "[e]mploys . . . employees for each working day" is intended to mean "employ" in the sense of maintain on the payroll. It is not necessary that every employee actually perform work on each working day to be counted for this purpose. For example, a bank that is open for public business 5 days per week will be considered to have all of its employees who are regularly maintained on its payroll as "employed for each working day," even though only a few of its employees, such as security guards or maintenance personnel, may perform work on weekend days.S. Rep. No. 103-3, at 21-22 (1993), reprinted in 1993 U.S.C.C.A.N. 3, 23-25 (emphasis added) (second alteration in original). In fact, the Cohen court used the legislative history behind the FMLA to rule in favor of the payroll method before determining whether a company was an employer under the ADEA. See Cohen, 814 F. Supp. at 256. In contrast, Metropolitan Educational Enterprises pointed out that "`[t]he interpretation given by one Congress (or a committee or Member thereof) to an earlier statute is of little assistance in discerning the meaning of that statute.'" EEOC v. Metropolitan Educ. Enters., Inc., 60 F.3d 1225, 1228 (7th Cir. 1995), cert. granted sub nom. Walters v. Metropolitan Educ. Enters., Inc., 116 S. Ct. 1260 (1996) (quoting Public Employees Retirement Sys. of Ohio v. Betts, 492 U.S. 158, 168 (1989)).

159. The Equal Employment Opportunities Act of 1972, which amended the Civil Rights Act of 1964, created the Equal Employment Opportunity Commission. See 42 U.S.C. § 2000e-4(a) (1994). The Act declares that the EEOC "is empowered . . . to prevent any person from engaging in any unlawful employment practice as set forth in section 2000e-2 or 2000e-3 of this title." Id. § 2000e-5(a). Likewise, the Age Discrimination Employment Act declares "[e]xcept as otherwise provided in this subsection, the Equal Employment Opportunity Commission is authorized to enforce the provisions of subsection (a) of this section." 29 U.S.C. § 633a(b) (1994).

160. See Policy Guidance, supra note 51, at N:3316.

161. See id. at N:3315 (advocating the payroll method over the counting method, the EEOC advised that "[p]ublic policy considerations weigh in favor of the broadest possible interpretation and dictate against the consequences that a stricter construction would have").

162. Id. at N:3312.

163. See id.

164. See id. at N:3315.

165. Id.

166. Policy Guidance, supra note 51, at N:3316 (quoting Gorman v. North Pittsburgh Oral Surgery Assocs., 664 F. Supp. 212, 214 (W.D. Pa. 1987)).

167. See id. at N:3316 ("Although an employer's payroll records may indicate the number of hours an employee worked in a given week, they may not reveal on which days an employee reported to work.").

168. Id.

169. See 42 U.S.C. § 2000e-5(a) (1994) ("The Commission is empowered, as hereinafter provided, to prevent any person from engaging in any unlawful employment practice as set forth in section 2000e-2 or 2000e-3 of this title.").

170. See 29 U.S.C. § 633a(b) (1994) ("[T]he Equal Employment Opportunity Commission is authorized to enforce the provisions of subsection (a) of this section . . . .").

171. See EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 115 (1988) ("[T]he EEOC's interpretation of ambiguous language need only be reasonable to be entitled to deference.").

172. See Wright v. Kosciusko Med. Clinic, Inc., 791 F. Supp. 1327, 1332 (N.D. Ind. 1992).

173. 791 F. Supp. 1327 (N.D. Ind. 1992).

174. See id. at 1328. Ms. Wright was employed for two additional months after the medical clinic first expressed its intent to fire her. See id. Ms. Wright also entered into negotiations "that resulted in an offer by the Clinic to pay Ms. Wright her base salary, plus certain benefits, for a two year period." Id. On December 6, 1989, the medical clinic sent a letter stating that the offer would not be valid if a discrimination claim was brought against the clinic. See id. On December 12, 1989, Ms. Wright filed her discrimination claim with the EEOC. See id.

175. See id. at 1330. "Once again, using September 1989, as the example, the Clinic had two, seven, three, four, and four employees on each of the five Saturdays in that month." Id. at 1330 n.7.

176. Id. at 1331 (emphasis added).

177. Id. (second alteration in original) (quoting 29 U.S.C. § 630(b) (1982)).

178. Id. at 1332.

179. Wright, 791 F. Supp. at 1332-33. The Wright court used the example that "a 200-employee factory, running three shifts from Monday through Saturday, could be placed beyond the reach of Title VII by sending a lone telephone operator to work on Sunday." Id. at 1333. The Wright court declared that not counting Saturday as a working day was "not inconsistent with Zimmerman, since there the employer had a five-day work week, with a relatively comparable number[] of employees on each day." Id.

180. See id.

181. See id. at 1332.

182. William Rehnquist was confirmed by the Senate, to become the 16th Chief Justice of the Supreme Court, on September 26, 1986. See Rehnquist, Scalia Take High Court Seats, Chi. Trib., Sept. 27, 1986, at 4. The Senate confirmed Rehnquist's appointment by a 65-33 vote. See id.

183. John Paul Stevens was confirmed by the Senate, to become the 101st Justice of the Supreme Court, on December 17, 1975. See Views of the New Justice on Proper Role of High Court, U.S. News & World Rep., Dec. 29, 1975, at 40. The Senate confirmed Stevens' appointment by a 98-0 vote. See id.

184. Sandra Day O'Connor was confirmed by the Senate, to become the 102d Justice of the Supreme Court, on September 21, 1981. See Linda Greenhouse, Senate Confirms Judge O'Connor; She Will Join High Court Friday, N.Y. Times, Sept. 22, 1981, at A1. The Senate confirmed O'Connor's appointment by a 99-0 vote. See id.

185. Antonin Scalia was confirmed by the Senate, to become the 103d Justice of the Supreme Court, on September 26, 1986. See Rehnquist, Scalia Take High Court Seats, Chi. Trib., Sept. 27, 1986, at 4. The Senate confirmed Scalia's appointment by a 98-0 vote. See id.

186. Anthony M. Kennedy was confirmed by the Senate, to become the 104th Justice of the Supreme Court, on February 3, 1988. See Al Kamen, Kennedy Confirmed, 97-0; Senate Approves Supreme Court Nomination, Wash. Post, Feb. 4, 1988, at A1. The Senate confirmed Kennedy's appointment by a 97-0 vote. See id.

187. David H. Souter was confirmed by the Senate, to become the 105th Justice of the Supreme Court, on October 2, 1990. See Ethan Bronner, Senate Confirms Souter on 90-9 Vote, Boston Globe, Oct. 3, 1990, at A1. The Senate confirmed Souter's appointment by a 90-9 vote. See id.

188. Clarence Thomas was confirmed by the Senate, to become the 106th Justice of the Supreme Court, on October 15, 1991. See Helen Dewar, Senate Confirms Thomas by 52 to 48 to Succeed Marshall on Supreme Court, Wash. Post, Oct. 6, 1991, at A1. The Senate confirmed Thomas' appointment by a vote of 52-48. See id.

189. Ruth Bader Ginsburg was confirmed by the Senate, to become the 107th Justice of the Supreme Court, on August 3, 1993. See Ginsburg Confirmed in Top Court Post, The Fin. Times, Aug. 4, 1993, at 3. Ginsburg's appointment was confirmed by a Senate vote of 96-3. See John Aloysius Farrell, Senate Confirms Ginsburg for Supreme Court, 96-3, Boston Globe, Aug. 4, 1993, at A23. She replaced former Justice Byron R. White. See id.

190. Stephen G. Breyer became the 108th Supreme Court Justice on August 3, 1994. See Chief Justice Administers Oath to Breyer, Boston Globe, Aug. 4, 1994, at A10. The Senate confirmed Breyer's appointment by an 87-9 vote on July 29, 1994. See id. He replaced former Justice Harry A. Blackmun. See id.

191. The United States Supreme Court granted certiorari on March 18, 1996, allowing an appeal of EEOC v. Metropolitan Educ. Enters., Inc., 60 F.3d 1225 (7th Cir. 1995), cert. granted sub nom. Walters v. Metropolitan Educ. Enters., Inc., 116 S. Ct. 1260 (1996). See Walters v. Metropolitan Educ. Enters., Inc., 116 S. Ct. 1260, 1260 (1996).

192. See EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 115 (1988) (holding that "the EEOC's interpretation of ambiguous language need only be reasonable to be entitled to deference").

193. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984) (footnotes omitted). In Chevron, after the Court looked at the legislative history behind the Clean Air Act Amendments, it stated: "We find that the legislative history as a whole is silent on the precise issue before us. It is, however, consistent with the view that the EPA should have broad discretion in implementing the policies of the 1977 Amendments." Id. at 862. In 1995, the United States Supreme Court declared: "Under the formulation now familiar, when we confront an expert administrator's statutory exposition, we inquire first whether `the intent of Congress is clear' as to `the precise question at issue.'" Nationsbank of North Carolina v. Variable Annuity Life Ins. Co., 115 S. Ct. 810, 813 (1995) (quoting Chevron, 467 U.S. at 842-43).

194. The fact that case law is split on the appropriate methodology to be used in determining the definition of employer under both Title VII and the ADEA suggests that legislative history does not reveal a clear intent. Even the Zimmerman court observed: "[The definition of employer under the ADEA] is nearly identical to the definition of employer in Title VII of the Civil Rights Act of 1964. . . . Yet there is little legislative history . . . to guide us in interpreting these provisions." Zimmerman v. North Am. Signal Co., 704 F.2d 347, 352-53 (7th Cir. 1983) (emphasis added).

195. See supra notes 192-93 and accompanying text.

196. 486 U.S. 107 (1988).

197. Id. at 108.

198. See id. at 109. Former Justice Marshall delivered the majority opinion of the Court for Parts I, II-A, and III, in which Justices White, Blackmun and O'Connor joined. See id. at 125.

199. Former Justices Brennan, Marshall, White, and Blackmun were replaced by Justices Souter, Thomas, Ginsburg, and Breyer respectively. See supra notes 187-90 and accompanying text.

200. Compare EEOC v. Commercial Office Prods. Co., 803 F.2d 581, 590 (10th Cir. 1986) (holding that waiver of "initial processing" by a local agency having a workshare agreement with the EEOC does not terminate the local agency's authority for purposes of waving a 60-day deferral period under section 706(c) of Title VII), rev'd, 486 U.S. 107 (1988) with Isaac v. Harvard Univ., 769 F.2d 817, 824-25 (1st Cir. 1985) (holding that termination of proceedings by a local agency having a workshare agreement with the EEOC occurs when the local agency waives "initial processing"). Section 706(c) of Title VII states that "no charge may be filed . . . by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated." 42 U.S.C. § 2000e-5(c) (1988) (emphasis added).

201. Commercial Office Prods., 486 U.S. at 109-10. The facts of the case were as follows: The EEOC had entered into a work-share agreement with the Colorado Civil Rights Division (CCRD) which provided that "the [CCRD] will process certain categories of charges and that the EEOC will process others, with the [CCRD] waiving the 60-day deferral period in the latter instance." Id. at 112. Suanne Leerssen filed a gender discrimination charge with the EEOC 290 days after she had been fired from her job. See id. at 112-13. At the time Suanne Leerssen filed her claim, section 706(e) of Title VII required charges to be filed with the EEOC "three hundred days after the alleged unlawful employment practice occurred," if "the person aggrieved has initially instituted proceedings with a State or local agency." 42 U.S.C. § 2000e-5 (1982). Pursuant to the work-share agreement, the CCRD waived its 60-day deferral period, but "stat[ed] that it still retained jurisdiction to act on the charge after the conclusion of the EEOC's proceedings." Commercial Office Prods., 486 U.S. at 113. At trial, the district court held that the EEOC did not have jurisdiction because the CCRD did not terminate its jurisdiction within the meaning of section 706(c) under Title VII, making Leerssen's charges untimely. See id. at 113-14. The Court of Appeals for the Tenth Circuit affirmed. See id. at 114.

202. Id. at 114.

203. Id.

204. Id. at 115 ("Rather, we find persuasive the determination of the First Circuit that the definition of `termination' also includes `cessation in time.'").

205. Id.

206. See id. at 109.

207. See Commercial Office Prods., 486 U.S. at 116-22 (Marshall, J., for a plurality). "The legislative history of the deferral provisions of Title VII demonstrates that the EEOC's interpretation of § 706(c) is far more consistent with the purposes of the Act than respondent's contrary construction." Id. at 116 (Marshall, J., for a plurality). "The EEOC's construction of § 706(c) also finds support in other, related sections of Title VII." Id. at 121 (Marshall, J., for a plurality). Although Justice O'Connor agreed that the EEOC's construction was reasonable, she wrote a separate concurrence in which she stated: "[I]n my view the majority goes too far by suggesting that the agency's position is the only one permissible. . . . [T]he agency could quite reasonably conclude that the statutory language warrants giving the word `terminated' what the Court recognizes is its more natural reading." Id. at 125-26 (O'Connor, J., concurring in part and concurring in the judgment). Justice O'Connor was concerned with the characterization of the Court's labeling of the respondent's position as "absurd." Id. at 125 (O'Connor, J., concurring in part and concurring in the judgment). According to Justice O'Connor, if the EEOC had adopted the respondent's position, she would have found it just as reasonable. See id. (O'Connor, J., concurring in part and concurring in the judgment). Justice O'Connor, however, "believe[d] the result in this case [to be] correct solely due to the traditional deference accorded the EEOC in interpretation of [Title VII]." Id. at 126 (O'Connor, J., concurring in part and concurring in the judgment).

208. See supra notes 159-70 and accompanying text.

209. See Commercial Office Prods., 486 U.S. at 115-16.

210. Thurber v. Jack Reilly's, Inc., 717 F.2d 633, 634-35 (1st Cir. 1983). The Thurber decision was decided by a three-judge panel. See id. at 633. Judge Breyer, now a Supreme Court Justice, was among the judges who advocated the payroll method. See supra notes 96-102 and accompanying text.

211. Vera-Lozano v. International Broad., 50 F.3d 67, 69-70 (1st Cir. 1995); see also supra notes 113-15 and accompanying text.

212. Dumas v. Town of Mount Vernon, 612 F.2d 974, 979-80 (5th Cir. 1980); see also supra notes 119-28 and accompanying text.

213. See supra note 194 and accompanying text.

214. See supra notes 99-102 and accompanying text.

215. 499 U.S. 244 (1991).

216. See id. at 246 ("These cases present the issue whether Title VII applies extraterritorially to regulate the employment practices of United States employers who employ United States citizens abroad.").

217. See id. at 245-46.

218. See id. at 259 (Scalia, J., concurring in part and concurring in the judgment) ("Petitioners have failed to present sufficient affirmative evidence that Congress intended Title VII to apply abroad.").

219. See id. at 248 ("Therefore, unless there is `the affirmative intention of the Congress clearly expressed,'" (quoting Benz v. Compania Naviera Hidalgo, 353 U.S. 138, 147 (1957)), "we must presume it `is primarily concerned with domestic conditions.'" (quoting Foley Bros. v. Filardo, 336 U.S. 281, 285 (1949))).

220. Id. at 257 (quoting General Elec. Co. v. Gilbert, 429 U.S. 125, 141-42 (1976) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944))). The majority opinion, however, overlooked the reasonable deference standard applied in Commercial Office Products. See id. at 260 (Scalia, J., concurring in part and concurring in the judgment). Justice Scalia noted this in his concurrence: "We said, in language quite familiar from our cases following Chevron, that `the EEOC's interpretation of ambiguous language need only be reasonable to be entitled to deference.'" Id. at 260 (Scalia, J., concurring in part and concurring in the judgment) (quoting Commercial Office Prods., 486 U.S. at 115).

221. See Arabian Am. Oil Co., 499 U.S. at 248. The EEOC made two arguments to support its position that Title VII applied abroad. See id. The first argument was "that the statute's definitions of the jurisdictional terms `employer' and `commerce' [were] sufficiently broad to include United States firms that employ[ed] American citizens overseas." Id. at 248-49. The second argument was that the alien exemption clause in Title VII states Title VII "`shall not apply to an employer with respect to the employment of aliens outside any State.'" Id. at 253 (quoting 42 U.S.C. § 2000e-1 (1982)). The EEOC argued that "from this language a negative inference should be drawn that Congress intended Title VII to cover United States citizens working abroad for United States employers." Id.

222. See id. at 257-58 ("The EEOC's interpretation of the statute here thus has been neither contemporaneous with its enactment nor consistent since the statute came into law. As discussed above, it also lacks support in the plain language of the statute.").

223. See id. at 260 (Scalia, J., concurring in part and concurring in the judgment) ("[I]t is in my view not reasonable to give effect to mere implications from the statutory language as the EEOC has done.").

224. Id. (Scalia, J., concurring in part and concurring in the judgment) ("Given the presumption against extraterritoriality that the Court accurately describes . . . it is in my view not reasonable to give effect to mere implications from the statutory language as the EEOC has done.").

225. Compare EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 125 (1988) (stating "sufficient ambiguity exists to warrant deference to the agency's construction of the word `terminated' in § 706(c)") with Arabian Am. Oil, 499 U.S. at 257 (applying a standard announced by the Court in General Electric Co. v. Gilbert, 429 U.S. 125, 140-46 (1976)).

226. See Arabian Am. Oil, 499 U.S. at 260 (Marshall, J., dissenting).

227. See id. at 276 (Marshall, J., dissenting). After announcing the reasonableness standard in Commercial Office Products, the dissent observed that "[i]n this case, moreover, the EEOC's interpretation is reinforced by the long-standing interpretation of the Department of Justice, the agency with secondary enforcement responsibility under Title VII." Id. (Marshall, J., dissenting).

228. See Commercial Office Prods., 486 U.S. at 126-27.

229. See supra note 220 and accompanying text. The majority included Chief Justice Rehnquist, Justices White, O'Connor, Kennedy, and Souter. See Arabian Am. Oil, 499 U.S. at 245.

230. See Arabian Am. Oil, 499 U.S. at 260 (Scalia, J., concurring in part and concurring in the judgment) ("Commercial Office Products has not been overruled (or even mentioned) in today's opinion, so that the state of the law regarding deference to the EEOC is left unsettled.").

231. Justice Scalia criticized the standard used by the majority as outdated and misapplied:

The case relied upon for the proposition that the EEOC's interpretations have only the force derived from their "power to persuade" was decided in an era when we were disposed to give deference . . . only to so-called "legislative regulations." The reasoning of General Electric Co. v. Gilbert, 429 U.S. 125 (1976) was not that the EEOC . . . was not entitled to deference, but that the EEOC's guidelines, like the guidelines of all agencies without explicit rulemaking power, could not be considered legislative rules and therefore could not be accorded deference.

In an era when our treatment of agency positions is governed by Chevron, the "legislative rules vs. other action" dichotomy of Gilbert is an anachronism; and it is not even a correct description of that anachronism to say that Gilbert held that the EEOC . . . is not entitled to deference.Id. at 259-60 (Scalia, J., concurring in part and concurring in the judgment).

232. See supra note 194 and accompanying text.

233. See Zimmerman v. North Am. Signal Co., 704 F.2d 347, 353 (7th Cir. 1983) ("As a general rule, a court should not construe a statute in a way that makes words or phrases meaningless, redundant, or superfluous.").

234. See id. at 353-54.

235. Wright v. Kosciusko Med. Clinic, Inc., 791 F. Supp. 1327, 1331 (N.D. Ind. 1992) (quoting Zimmerman, 704 F.2d at 353).

236. See id. at 1331-32 ("It is certainly not inconsistent with these definitional provisions to conclude that an employer `has' an employee on a working day, even if that employee is not physically present on that day . . . .").

237. See supra notes 148-50 and accompanying text.

238. See Cohen v. S.U.P.A. Inc., 814 F. Supp. 251, 255 (N.D.N.Y. 1993) ("Since . . . Title VII, and the ADEA define `employer' and `employee' in nearly identical terminology, `cases construing the definitional provisions of one are persuasive authority when interpreting the others.'" (quoting Hyland v. New Haven Radiology Assocs., 794 F.2d 793, 796 (2d Cir. 1986))).

239. See supra note 18 and accompanying text.

240. See EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 115-16 (1988).

241. See supra Part IV.

242. Justice Scalia noted in Arabian American Oil that "Commercial Office Products has not been overruled." EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 260 (Scalia, J., concurring in part and concurring in the judgment). The fact that the majority in Arabian American Oil did not follow the deference announced in Commercial Office Products leaves "the law regarding deference to the EEOC . . . unsettled." Id. (Scalia, J., concurring in part and concurring in the judgment). Arabian American Oil, however, may be distinguished from Commercial Office Products because the issue in Arabian American Oil involved the scope of Title VII outside of the United States, with a presumption against extraterritoriality. See id. at 258. The current circuit split, however, does not involve a rebuttable presumption that must be overcome by the EEOC before the payroll method can be adopted.

* I dedicate this Note to my parents, Tom and Dawn, and my sister, Brooke, for their encouragement and support.