According to the U.S. Court of Appeals for the District of Columbia Circuit, such action is in violation of the Age Discrimination in Employment Act (ADEA).
The court rejected the Department of State’s contention that section 2(c) of the Basic Authorities Act provided an exemption from the ADEA for contracted workers that provide services abroad. The court said if it were to accept the Department’s contention that the Basic Authorities Act creates an exemption from the ADEA, it would have to reach the same conclusion regarding both Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA).
That statute claims the Secretary of State may “employ individuals or organizations, by contract, for services abroad, and individuals employed by contract to perform such services shall not by virtue of such employment be considered to be employees of the United States Government for purposes of any law administered by the Office of Personnel Management (except that the Secretary may determine the applicability to such individuals of subsection (f) of this section and of any other law administered by the Secretary concerning the employment of such individuals abroad); and such contracts are authorized to be negotiated, the terms of the contracts to be prescribed, and the work to be performed, where necessary, without regard to such statutory provisions as relate to the negotiation, making, and performance of contracts and performance of work in the United States.”
The appellate court expressed confidence that Congress would not have used ambiguous language had it intended to override the ADEA, saying “when Congress had such an intention, it made that intention clear.”
The Department further insisted that, even if the statutory language is ambiguous, “the Secretary’s longstanding interpretation ... is entitled to deference.” The appellate court also rejected that argument, saying Congress did not delegate authority to the agency generally to make rules carrying the force of law in which deference was promulgated.
John R. Miller, Jr. is a U.S. citizen who was employed by the Department of State as a safety inspector at the U.S. embassy in Paris, France. His contract noted he would be terminated when he turned 65, as is custom in France; however, when he received notice of his termination, he appealed to work for one more year. That appeal was denied, and Miller exhausted all available remedies with the U.S. Equal Employment Opportunity Commission (EEOC) before filing a lawsuit.The opinion in Miller, Jr. v. Hillary Rodham Clinton, Secretary of State is here.