After years of wrangling over whether the Age Discrimination in Employment Act applied to firefighters (and whether, in particular, a mandatory retirement age could be imposed on firefighters), the U.S. Supreme Court abruptly ended the applicability of adea in state and local government in January. The court's vehicle for this decision was Kimel, et al, v. Florida Board of Regents, et al, No. 98-791, Jan. 11, 2000.

Kimel was actually three cases, each involving allegations by plaintiffs that they were victims of age discrimination by their employers. J. Daniel Kimel was a Florida State University librarian who alleged that the failure of the university's Board of Regents to authorize a salary adjustment was, among other things, discriminatory on the basis of age. Wellington Dixon sued his employer, the Florida Department of Corrections, alleging that he was denied, based solely on his age, a promotion to which he was otherwise entitled. And Roderick MacPherson and Marvin Narz sued the University of Montevallo, Alabama, on grounds that the university's faculty performance evaluation system unfairly discriminated against faculty members over 40.

The groundwork for the court's decision was laid in Alden v. Maine, a Fair Labor Standards Act decision handed down by a closely divided 5-4 court in June 1999. (See "Lex de Incendiis," December 1999, available at .) In Alden, the court held that, in any state that had retained sovereign immunity (a partial or complete prohibition by a state of a lawsuit against that state), a federal law giving state government employees the right to sue in state court for violations of federal law had to pass two tests.

First, does the federal law address a constitutionally protected civil right? Second, was Congress explicit in its intent that the federal law apply in all states? In Alden, the court held that the Fair Labor Standards Act did not pass either test as far as state employees were concerned, though the court was careful to note that local government employees could still sue. ("The immunity [from lawsuit] does not extend to suits prosecuted against a municipal corporation or other government entity which is not an arm of the state....")

In Kimel, the court applied those same tests to the Age Discrimination in Employment Act. Once again, by a 5-4 decision written by Justice Sandra Day O'Connor (also the author of Alden), the court held that adea does not apply to state or local government employees in states that have retained sovereign immunity doctrines.

In my December 1999 column, I noted that protection from discrimination on the basis of age was a "protected right." The court didn't buy that argument, noting that discrimination based on age isn't up there in the pantheon of rights included in the various Civil Rights Acts of the 19th and 20th centuries: race, national origin and gender. "Old age does not define a discrete and insular minority because all persons, if they live out their normal life spans, will experience it." So the adea failed the first Alden test.

Kimel and his co-plaintiffs also failed the second test in the eyes of the court. Although Congress was specific in including state employees within the coverage of adea in the statute's language, Congress never made any specific findings that age discrimination was a problem in state and local government. ("Congress failed to identify a widespread pattern of age discrimination by the states.")

What does this mean for the fire service? First, Congress reinstituted a mandatory-retirement-age exception for fire, police and corrections personnel a couple of years ago (see "Lex de Incendiis," December 1997, available at ), so, with regard to mandatory retirement, the end of enforceability of adea in sovereign-immunity states will have little effect on the fire service.

Second, almost every state has its own version of adea ("State employees are protected by states' age discrimination statutes, and may recover money damages from their state employers in almost every state of the union." [emphasis added]), so fire service managers in sovereign-immunity states should get acquainted with their states' versions of adea. The 23 sovereign-immunity states are Connecticut, Delaware, Georgia, Hawaii, Idaho, Kansas, Louisiana, Maine, Michigan, Mississippi, Montana, Nebraska, Nevada, New Jersey, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Utah, Vermont and Virginia.

Finally, when Congress reinstituted the police/fire/corrections mandatory retirement-age exemption in 1996, the legislation included direction to the U.S. Department of Health and Human Services and the National Institute of Occupational Safety and Health to study the issue of firefighter fitness in anticipation of future challenges to mandatory retirement age for firefighters. Congress may review this statutory direction in the wake of Kimel.

Now that the U.S. Supreme Court has limited state employees' rights to sue in sovereign-immunity states under the Fair Labor Standards Act, and effectively eliminated enforceability of adea at the state and local levels in those same states, what's next?

I suspect that many state legislatures which abolished sovereign immunity in the 1960s and '70s will revisit those decisions, as Ohio's did several years ago. And the next 11th Amendment challenge will probably be to the enforceability of the Americans with Disabilities Act in sovereign-immunity states. Disability, like age, is not among the traditional civil rights protected by the Constitution, so enforceability of ada is subject to the same challenges raised in Kimel.

Another 11th Amendment challenge may involve the Equal Pay Act. Back in January, just a week after the Kimel decision was handed down, the Supreme Court ordered lower federal courts to take a second look at cases involving the Equal Pay Act of 1963. The court's order applied particularly to two cases involving suits filed by women faculty members at state universities in Illinois and New York. In Illinois, the 7th Circuit Court of Appeals ruled against Illinois State University's contention that the 11th Amendment barred the suit of professors Iris Varner, Teresa Palmer and Paula Pomeranke, and the 2nd Circuit Court of Appeals ruled similarly against the State University of New York in a suit filed by Prof. Janice Anderson. The court instructed both circuits to review their rulings in light of Kimel.

So what happened to the U.S. Supreme Court that ordered school desegregation in Brown v. Board of Education in the '50s and that protected the rights of criminal suspects in cases like Gideon v. Wainwright and Miranda? It's gone. Legal scholars seem to agree that earlier courts emphasized establishment of individual rights, while today's court is more intent on establishing limits. Today's court is much more likely than its predecessors to avoid resolution of major social issues via court decisions by limiting its findings to the facts of a particular case, and making as little new law as possible.

Cases like Kimel reflect a court that's much more closely divided on issues of state authority versus federal authority. So far, in Alden and Kimel, the applicability of federal rights legislation has been limited in favor of states' rights.

E-mail limits must be consistent Computers - and e-mail in particular - have revolutionized workplace communications. What this means to the fire service is that, in addition to all the good things e-mail does, it enables firefighters with complaints to circulate them (and other editorial opinions about workplace conditions) much more efficiently. Can fire service employers limit such communications?

Here's a story of an e-mail communications case that emerged in the private sector, as reported in the Wall Street Journal Interactive Edition of April 26.

In Ohio, Timekeeping Systems Inc. programmer Lawrence Lineweber took company management to task for adopting a new Christmas vacation scheduling policy, closing with the statement, "'The effect of this is that you actually get more days off each year compared to our present system' is proven false." Lineweber lost his job, and filed a complaint with the National Labor Relations Board.

The board ruled in Lineweber's favor, holding that the National Labor Relations Act protects the rights of workers to "communicate freely with one another about work terms and conditions" including e-mail communications, as long as those communications don't tie up or disrupt an employer's computer system. The nlrb used the same reasoning to shoot down Pratt and Whitney's absolute prohibition of use of e-mail for non-business purposes.

The National Labor Relations Act doesn't apply to state and local government employees, but the nlrb 's reasoning in Lineweber's case and the Pratt and Whitney case is well worth noting. If your department (or city or county) involves any use of an e-mail system for non-business purposes (trading information about pet placement, setting up co-worker vacation activities, etc.), you could find yourself in a difficult position as a manager disciplining a firefighter using e-mail to gripe about vacation-selection policies or your latest budget recommendations.

Public employers (unlike Pratt and Whitney) probably do have the legal authority to prohibit use of e-mail for non-business purposes, but once non-business communications make it into the system, it becomes very difficult to distinguish between appropriate or inappropriate non-business uses.

These experiences are paralleled by those of employers disciplining employees for "inappropriate" use of e-mail (for racist/sexist cartoons and jokes, and Rodney King-type exchanges on mobile computer systems). The challenge here is that employees who become unwitting readers or viewers of this type of e-mail can allege racial or sexual harassment - and management that fails to promptly end such use of e-mail stands a very good chance of being found liable in a harassment lawsuit.

The law is no better equipped with fast and easy answers to questions raised by the Information Age than it is to most other post-1970s social developments. But no one ever said it'd be easy.

As this column was being written, the U.S. Supreme Court handed down a 6-3 decision in favor of Harris County, Texas, in an employee lawsuit challenging Harris County's right to compel employees to use compensatory time accrued in lieu of flsa overtime pay.

Said Justice Clarence Thomas in his opinion for the court, "Nothing in the flsa or its implementing regulations prohibits an employer from compelling the use of compensatory time."

The case citation is Christensen v. Harris County, No. 98-1167, May 1, 2000. See also "Conflict over comp time" in "Lex de incendiis," December 1999.