                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 04-1505
                                ________________

Ace Electrical Contractors, Inc.;         *
National Electrical Contractors           *
Association, Minneapolis Chapter,         *
                                          *      Appeal from the United States
             Appellees,                   *      District Court for the
                                          *      District of Minnesota.
      v.                                  *
                                          *            [PUBLISHED]
International Brotherhood of              *
Electrical Workers, Local Union           *
Number 292, A.F.L.-C.I.O.,                *
                                          *
             Appellant.                   *


                                ________________

                                Submitted: November 15, 2004
                                    Filed: July 14, 2005
                                ________________

Before MURPHY, HANSEN, and MELLOY, Circuit Judges.
                        ________________

HANSEN, Circuit Judge.

      The question presented is whether Minnesota’s public policy against
discrimination in employment on the basis of age, Minn. Stat. § 363A.08 Subds. 1,
2 (Supp. 2003), prohibits a negotiated employee age ratio in a collective bargaining
agreement that requires 1 out of every 5 electrical workers in a unionized shop to be
50 years of age or over. The district court1 concluded that the age ratio requirement
cannot be enforced because it violates the clearly defined public policy articulated in
the Minnesota Human Rights Act (“MHRA”), Minn. Stat. §§ 363A.01-363A.41
(Supp. 2003). We affirm the judgment of the district court.

                                          I.

       In September 2002, Ace Electrical Contractors, Inc. (“Ace”) terminated two
workers as part of a planned reduction-in-force, and both were over the age of 50.
The International Brotherhood of Electrical Workers, Local Union Number 292,
A.F.L.-C.I.O. (“Local Union”), the local chapter of the labor organization that
represents employees in the electrical trade, filed a grievance against Ace, asserting
that the terminations violated the age ratio mandated by their collective bargaining
agreement (“CBA”). The CBA provides as follows:

      As a means of caring for the older employees and to promote general
      economic progress, in all shops employing four (4) or more Employees,
      every fifth (5th) Journeyman Wireman, if available, shall be fifty (50)
      years of age or older. Referrals and layoffs for reduction-in-force shall
      conform to this age ratio, in accordance with Section 4.15(b).

(Appellant’s App. at 69, CBA Section 5.08.) Section 4.15(b) of the CBA states, “The
age ratio clause in the Agreement calls for the employment of an additional Employee
or Employees on the basis of age,” and requires the business manager to refer the first
applicant on the register that satisfies the applicable age requirements. (Id. at 64
(emphasis added).) Ace’s termination of two workers over 50 rendered it out of
compliance with the CBA’s required age ratio.




      1
      The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota.
                                          -2-
       Ace rejected the grievance on the ground that the age ratio requirement violates
the MHRA. The MHRA makes it an unfair employment practice for either a labor
organization or an employer to discriminate with regard to privileges of employment
“because of . . . age.” Minn. Stat. § 363A.08 Subds. 1, 2. Further, the MHRA states
that the prohibition against unfair employment practices based on age “prohibits
using a person’s age as a basis for a decision if the person is over the age of
majority.” Minn. Stat. § 363A.03 Subd. 2.2 A labor management committee
deadlocked over whether the CBA provision violated the MHRA. Subsequently, the
National Electrical Contractors Association, Minneapolis Chapter (“Minneapolis
NECA”) solicited an opinion from the Minnesota Department of Human Rights on
the issue. Then-Commissioner Janeen Rosas issued a detailed opinion, stating that
the CBA’s age ratio violates the MHRA by requiring employment decisions, such as
layoff, recall, or replacement, to be based upon age, contrary to the statute.

       The parties then submitted the grievance to the Council on Industrial Relations
for the Electrical Contracting Industry (“Council”) for arbitration, and Ace requested
that the age ratio language be removed from the CBA in light of the Commissioner’s
opinion that it violates the MHRA. In February 2003, the Council concluded, without
discussing the MHRA, that Ace had violated the terms of the CBA by not following
the age ratio provisions. The Council awarded lost wages and benefits to the two
employees.

       In April 2003, the parties received another letter from the Department written
by a compliance service officer. This letter reaffirmed the Department’s position that



      2
       Section 363A.03, Subd. 2, states in full: “The prohibition against unfair
employment or education practices based on age prohibits using a person’s age as a
basis for a decision if the person is over the age of majority except for section
363A.13 which shall be deemed to protect any individual over the age of 25 years.”


                                          -3-
the CBA’s age ratio requirement violates the MHRA and offered suggestions for
replacing the age ratio language.

        Ace and the Minneapolis NECA filed suit in state court to vacate the Council’s
award enforcing the CBA’s age ratio requirement. The Local Union removed the
action to federal court pursuant to the Labor Management Relations Act, 29 U.S.C.
§ 185 (2000). The plaintiffs then moved for summary judgment, including
Commissioner Rosas’ opinion that the age ratio requirement violates the MHRA as
well as a more recent affidavit from the Department’s then-Commissioner Velma J.
Korbel, again confirming that the Department’s consistent position has been and
remains that the age ratio provision is inconsistent with the MHRA’s prohibition
against discrimination on the basis of age. The Local Union responded with a 1976
letter from the United States Department of Labor and a 1980 letter from the Equal
Employment Opportunity Commission (“EEOC”), both stating that the CBA’s age
ratio requirement does not offend the federal Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621-634, which is designed to limit discriminatory practices
against older workers. The Local Union argued that the MHRA should be construed
consistently with the federal ADEA’s prohibition of age discrimination.

        The district court granted summary judgment for Ace and the Minneapolis
NECA, and vacated the Council’s award. The district court concluded that the CBA’s
age ratio requirement violates the well-defined public policy of the MHRA, which
strictly requires that an employer cannot make any employment decision based on an
employee’s age. Subsequent to the district court’s opinion in this case, the Supreme
Court of the United States confirmed the EEOC’s understanding of “age” for
purposes of the federal ADEA. The Court held that the ADEA is intended to protect
older persons and does not prohibit granting additional benefits that favor older
workers. See Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 600 (2004). The
Local Union appeals, arguing that the Supreme Court’s interpretation of “age” under
the federal ADEA should apply equally in the context of the MHRA.

                                         -4-
                                         II.

       We review de novo a district court’s grant of summary judgment, as well as its
interpretation of state law and the terms of a contract. Centric Jones Co. v. City of
Kearney, 324 F.3d 646, 648-49 (8th Cir. 2003). The district court’s decision to
vacate an arbitration award is entitled to no special deference on appeal. Homestake
Mining Co. v. United Steelworkers, 153 F.3d 678, 680 (8th Cir. 1998). Where the
parties have contemplated that an arbitrator will give meaning to the language of the
contract and determine the remedies for the violations it finds, “courts have no
authority to disagree with [the arbitrator’s] honest judgment” and a court may not
reject an arbitrator’s fact-findings or interpretation of a contract “simply because it
disagrees with them.” United Paperworkers Int’l v. Misco, Inc., 484 U.S. 29, 38
(1987). On the other hand, we recognize that “[n]otwithstanding our obligation to
show great deference to most arbitration awards, we must not enforce illegal
contracts.” Teamsters Local Union 682 v. KCI Constr. Co., 384 F.3d 532, 537 (8th
Cir. 2004) (internal quotations omitted).

       The Local Union argues on appeal that we should enforce the Council’s award
because it draws its essence from the CBA, and substantial deference is therefore
owed to the arbitrator’s decision. We cannot say that the Council’s decision does not
draw its essence from the terms of the CBA or that the Council exceeded the scope
of its authority. Nevertheless, although we are bound to give deference to the
arbitrator when its decision draws its essence from the CBA, an exception arises
when the contract “violates some explicit public policy.” W.R. Grace & Co. v. Local
Union 759, 461 U.S. 757, 766 (1983). The public policy “must be well defined and
dominant, and is to be ascertained by reference to the laws and legal precedents, and
not from general considerations of supposed public interests.” Id. (internal quotation
marks omitted); see also MidAmerican Energy Co. v. Int’l Bhd of Elec. Workers
Local 499, 345 F.3d 616, 620 (8th Cir. 2003). “As with any contract . . . a court may

                                          -5-
not enforce a collective-bargaining agreement that is contrary to public policy.” W.R.
Grace, 461 U.S. at 766.

       The Local Union next argues that the district court relied on a public policy
that was not well defined in the law, because the MHRA’s use of the word “age” is
ambiguous. The Local Union urges that this ambiguity should be construed
consistently with the Supreme Court’s recent holding in Cline, where the Court
interpreted “age” under the ADEA to permit granting more favorable benefits to
older workers. 540 U.S. at 600. Ace and the Minneapolis NECA argue, on the other
hand, that the MHRA’s use of the term “age” is not ambiguous and should not be
interpreted in the same manner as it is in the federal ADEA due to textual differences
between the statutes.

        While no federal ADEA claim is made in this case, we bear in mind that claims
brought under the MHRA are generally considered under the same analytical
framework as federal ADEA claims. See Chambers v. Metro. Prop. and Cas. Ins. Co.,
351 F.3d 848, 855 (8th Cir. 2003). In Cline, the Supreme Court articulated the
relevant analytical framework as requiring a consideration of “the text, structure,
purpose, and history of the [statute], along with its relationship to other federal
statutes.” 540 U.S. at 600. Our analysis of the MHRA will therefore proceed within
this framework, which, as always in statutory construction, begins with the text of the
statute.

       The MHRA, like the ADEA, broadly prohibits discrimination in employment
decisions on the basis of “age.” Compare Minn. Stat. § 363A.08, Subd. 2 (stating it
is an unfair employment practice, “because of . . . age” to discriminate with regard to
hiring, among other things), with 29 U.S.C. § 623(a) (stating it is unlawful to refuse
to hire, among other things, “because of such individual’s age”). Absent any
particular modifier, “age” can be understood in alternate ways, “either as pointing to
any number of years lived, or as common shorthand for the longer span and

                                          -6-
concurrent aches that make youth look good.” Cline, 540 U.S. at 596. Thus, standing
alone, “age” is somewhat ambiguous. As the Supreme Court noted in Cline, “[w]hich
alternative was probably intended is a matter of context.” Id.

        Our review convinces us that the context set forth in the MHRA differs
significantly from that of the ADEA with regard to the term “age” and does not
permit an age ratio requirement that favors older workers on the basis of their age.
First, the MHRA broadly defines the protected class to encompass any worker over
the age of majority, Minn. Stat. § 363A.03, Subd. 2, whereas in the ADEA, “age” is
not specifically defined except to restrict the protected class to people age 40 and
above, 29 U.S.C § 631(a) (entitled “Age limits”). The Court in Cline cited this
limitation of the protected class as support for its conclusion that the ADEA was
intended to protect older workers and not prohibit the granting of additional benefits
to older workers. 540 U.S. at 591 (“If Congress had been worried about protecting
the younger against the older, it would not likely have ignored everyone under 40.”).
Contrary to the ADEA, Minnesota chose not to ignore everyone under 40.

        Second, the MHRA, unlike the ADEA, provides additional clarifying language
in its definition of “age” that goes beyond a mere description of the protected class.
In the MHRA’s definition of “age,” it states that the prohibition against unfair
employment practices based on age “prohibits using a person’s age as a basis for a
decision if the person is over the age of majority.” Minn. Stat. § 363A.03, Subd. 2
(emphasis added). Like the broadened protected class, this language–prohibiting use
of a person’s age as a basis for a decision–similarly gives no support to an inference
that “age” is used in the sense of “old age,” as the Local Union asserts. Rather, the
broad language implies that any decision made with reference to a person’s age, be
it old or young, is impermissible. The CBA’s age ratio requirement is in direct
conflict with the text of this statute because it expressly calls for the employment of
employees “on the basis of age.” (Appellant’s App. at 64, CBA Section 4.15(b)
(emphasis added).) In particular, the age ratio requires the employment or layoff of

                                          -7-
employees on the basis of their older age. (See id. at 69, CBA Section 5.08 (setting
a ratio for hire or layoff regarding electricians age 50 and above).) In spite of the fact
that the ratio is intended to benefit older workers, it nevertheless calls for the use of
“a person’s age as a basis for a decision,” Minn. Stat. § 363A.03, Subd. 2, directly
contrary to the language of the MHRA, which prohibits a decision based on age
without distinguishing between older or younger workers.3

       Further textual references also support our conclusion that the prohibition of
age discrimination under the MHRA does not permit parties to contract for an age
ratio requirement that favors older workers. The MHRA renders it an unlawful
employment practice for any labor organization or employer, before a person is
employed or admitted as a member, to print or publish any notice or advertisement
that discloses a preference or limitation based upon age. Minn. Stat. § 363A.08,
Subd. 4(a)(3). If, as the Local Union asserts, the MHRA permits favoring older
employees over younger, advertising or printing such a preference could not be
considered an unfair practice. Because the statute prohibits both preferences and
limitations based upon “age,” it does not support an inference that older workers may
be given preference in employment decisions.

       The Local Union argues that the text of Minn. Stat. § 363A.08, Subd. 7,
indicates an intent to benefit older workers, but we fail to see how this subdivision
sheds any light on the meaning of “age” under the MHRA. Section 363A.08, Subd.
7, states that age discrimination includes “acts which interfere with an employee's
opportunity to acquire pension credits,” unless based on just cause unrelated to the
employee’s status with regard to pension credits. While this language indicates a

      3
        Accordingly, we respectfully disagree with the dissent's characterization of our
decision today as "holding that Minnesota has an explicit and dominant public policy
against protecting older workers." (Infra at 12.) On the contrary, we hold that the
statute itself manifests an intent to protect all workers, young and old alike, from any
employment decision based on age.
                                           -8-
recognition that pension credits may correlate with a person’s age to some extent, the
statute does not prohibit any underlying correlation between age and pension status.
The statute merely prohibits interference with the opportunity to acquire pension
benefits without specifying any particular age group. In fact, the MHRA provides a
specific exemption from age discrimination for pension and retirement plans that
establish differential privileges or benefits for persons of designated ages if the
differential treatment is provided by statute or the designated age is over 59 or less
than 21 (specially noting that these age limitations cannot be applied to hiring or
conditions of employment). Minn. Stat. § 363A.20, Subd. 9. See State by Beaulieu
v. Ind. Sch. Dist. No. 624, 533 N.W.2d 393, 394-96 (Minn. 1995) (finding a statutory
exemption where a 36-year-old school district employee alleged age discrimination
because an early retirement package benefitted only employees age 45 and above–the
age differentiation was implicitly authorized by statute so not a violation of the
MHRA). In sum, the reference to pension benefits in Section 363A.08, Subd. 7, does
not indicate an intent to benefit only older workers, and due to the exceptions built
into the MHRA, our interpretation of the MHRA in this case will not undermine the
entire public retirement system, as the Local Union suggests.

       While statutory exceptions may apply in some contexts, as noted above, absent
a specific exception, the MHRA’s plain text prevails to treat workers of all ages
within the protected class similarly with regard to age. In reaching a contrary result
in the federal ADEA context, the Supreme Court reasoned that the structure and
legislative history of the ADEA indicated a clear intent to benefit older workers. See
Cline, 540 U.S. at 586 (stating “Congress’s interpretive clues speak almost
unanimously to an understanding of discrimination as directed against workers who
are older”). The Court in Cline noted that when the ADEA was enacted, Congress
had a well-documented understanding that older workers were often unfairly denied
employment opportunities on the basis of unwarranted stereotypes and that, by all
reports, the ADEA would be a remedy for unfair preferences based on relative youth.
See id. at 590-91. Congress made specific findings and statements of purpose that are

                                         -9-
codified in the ADEA, describing a legislative intent to protect “older workers” who
find themselves disadvantaged in employment situations because of arbitrary age
limits that disregard actual job performance. 29 U.S.C. § 621(a). Congress further
stated, “It is therefore the purpose of this chapter to promote the employment of older
persons based on their ability rather than age.” 29 U.S.C. § 621(b) (emphasis added).

        The Local Union would have us infer that the Minnesota legislature had the
same intent, though it is nowhere expressed nor can it be implied from any
“interpretive clues.” The MHRA’s prohibition of age discrimination, enacted 10
years after the ADEA, neither expressly adopts the ADEA’s statements of purpose
nor does it specifically reference “older persons” in its policy statement. The
Minnesota legislature enacted a section entitled “Public Policy,” which states only
that it is the public policy of the state of Minnesota, in relevant part, “to secure for
persons in this state, freedom from discrimination in employment because of . . . age.”
Minn. Stat. § 363A.02 Subd. 1(a)(1). This broad statement of policy, considered with
the broad sweep of the prohibited conduct in Minn. Stat. §363A.08, provides no basis
on which to infer that the MHRA permits employers to make an employment decision
based on age, even when the decision benefits older workers. See Beaulieu, 533
N.W.2d at 396 (although finding a statutory exemption authorized the beneficial
treatment of older workers in that case, the court emphasized that in general, “[t]he
broad language of the MHRA manifests the legislature’s strong concern for
protection of Minnesota citizens against age discrimination”). We will not infer
limitations on the plain language of the statute absent some indication that the
legislature intended such a result. We conclude that the language of the CBA’s age
ratio provision requires the employer to make an employment decision on the basis
of age, which is directly contrary to the plain language of the public policy articulated
in the MHRA.

     We find further support for this conclusion in the opinions issued by the
Department. Commissioner Rosas concluded in December 2002, based on the plain

                                          -10-
language of the MHRA, that the CBA’s age ratio impermissibly required the
employer to make an employment decision on the basis of age and also violated the
MHRA’s prohibition of printing any notice or advertisement relating to employment
that discloses a preference based on age. A Compliance Services Officer reported
that the Department held the same position in April 2003, and Commissioner Korbel
took the same position in September 2003. As noted by the district court, while the
State Commissioners’ opinions about state law are not entitled to any controlling
weight, because in this case they are thorough, well-reasoned, and consistent, they are
entitled to our respect and they have the “power to persuade, if lacking power to
control.” Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).

       Finally, the national office of the International Brotherhood of Electrical
Workers (“IBEW”) filed an amicus curiae brief in support of the Local Union,
arguing that the federal ADEA preempts the MHRA. The Local Union took up the
torch and argued preemption for the first time in its reply brief. The IBEW and the
Local Union contend that if the MHRA prohibits the age ratio requirement, then the
MHRA stands as an obstacle to the full accomplishment of Congress’s purposes
because the Supreme Court has concluded that the ADEA permits employers to grant
more beneficial treatment to older workers. Accordingly, they argue that the MHRA
is preempted. See Hines v. Davidowitz, 312 U.S. 52, 67 (1941) (noting that
preemption applies when a state’s law “stands as an obstacle to the accomplishment
and execution of the full purposes and objectives of Congress”).

       This argument was not presented to the district court. “[I]t is well established
that, unless a manifest injustice would result, a claim not articulated to the district
court is subject to forfeit on appeal.” Roberts v. Apfel, 222 F.3d 466, 470 (8th Cir.
2000). The Local Union asserts that we may nevertheless reach this argument
because it is jurisdictional. We disagree. The preemption argument is not
jurisdictional in this case because subject matter jurisdiction here is premised upon
the Labor Management Relations Act, regardless of whether or not we conclude as

                                         -11-
a matter of law that the ADEA preempts the MHRA. See Johnson v. Armored
Transp. of Cal., Inc., 813 F.2d 1041, 1043-44 (9th Cir. 1987) (holding that
preemption questions concerning choice of forum are jurisdictional but preemption
questions concerning only choice of law are waived if not timely raised). We decline
to address this argument raised for the first time on appeal.

                                         III.

     Accordingly, we affirm the judgment of the district court vacating the
Council’s award.

Murphy, Circuit Judge, dissenting.

       Today the court vacates the decision of an experienced labor arbitration council
on the basis of its holding that Minnesota has an explicit and dominant public policy
against protecting older workers. Our court must defer to an arbitrator's decision
when it draws its essence from the collective bargaining agreement and the arbitrator
acted within the scope of its authority, see Homestake Mining Co. v. United
Steelworkers of Am. Local 7044, 153 F.3d 678, 680 (8th Cir. 1998), and it is not
disputed that these prerequisites are satisfied here. The only contested issue is
whether the public policy exception to the general rule of deference may be applied.
This exception is a very narrow one, see E. Assoc. Coal Corp. v. United Mine
Workers of Am., 531 U.S. 57, 63 (2000), and can only be invoked if the arbitrator's
decision violated a "well defined," "dominant," and "explicit" public policy. W.R.
Grace & Co. v. Local Union 759, 461 U.S. 757, 766 (1983). Since it has not been
shown that the arbitration decision in this case violated any well defined public
policy, I respectfully dissent.

      Our jurisdiction over this case is based on the Labor Management Relations
Act of 1947, and the congressional preference for private resolution of collective

                                         -12-
bargaining disputes is a cornerstone of that statute. See 29 U.S.C. § 173(d). It is also
well established that judicial review of arbitration awards is extremely limited. Lee
v. Chica, 983 F.2d 883, 885 (8th Cir. 1993). The deferential standard for reviewing
decisions of arbitrators is particularly prized in labor cases because it promotes
private settlement of labor disputes. United Paperworkers Int'l Union v. Misco, Inc.,
484 U.S. 29, 37 (1987). Collective bargaining agreements typically contain many
detailed provisions outlining each party's rights and responsibilities, yet the parties
understand that difficult problems of interpretation are bound to arise. When they
have exercised their right to select an arbitrator familiar with the industry to resolve
such disputes rather than to rely on the public court system, courts are bound to
respect their preference under federal labor law as well as arbitration law. See id. at
37-38.

       The Minneapolis chapter of the National Electrical Contractors Association,
of which Ace is a member, and Local 292 of the International Brotherhood of
Electrical Workers have included an age ratio provision in their collective bargaining
agreement for more than sixty years. As part of their bargaining they agreed long ago
that a limited number of work opportunities should be reserved for qualified older
electricians. This provision offsets other parts of the agreement which permit
employers to make unhindered employment decisions without giving any reason. For
example, employers may turn down any electrician referred by the hiring hall without
explanation and choose which employees to lay off without giving reasons. With
awareness that such purely discretionary decisions by employers could impact older
workers, the parties agreed on the age ratio provision to ensure that older electricians
would not be shut out of job opportunities.

       These parties have a longstanding agreement to submit any matter in dispute
to arbitration for a final binding decision. They have agreed to use the services of the
Council on Industrial Relations for the Electrical Contracting Industry, which is
composed of members who represent both employers and unions and who are

                                          -13-
experienced in the field. The parties have not been indifferent to the requirements of
the law against age discrimination. After enactment of the ADEA the Union checked
with the agencies charged with its enforcement, initially the United States Department
of Labor and then the Equal Employment Opportunity Commission. Both agencies
issued opinions upholding the legality of the age ratio provision in this collective
bargaining agreement.

       The strong preference for private resolution of disputes means that the public
policy exception to enforcement of arbitration awards should be strictly and narrowly
applied. See E. Assoc. Coal Corp., 531 U.S. at 63. As the Supreme Court explained
in W.R. Grace, the public policy exception requires a showing (1) that there is a well
defined public policy (2) that the policy is explicit (3) that it is dominant and (4) that
it can be ascertained by reference to laws and legal precedents, as opposed to general
considerations of supposed interest. 461 U.S. at 766. The policy asserted here to
invoke the narrow exception to the rule upholding arbitration awards is not a well
defined public policy, for it is not explicit and it cannot be clearly ascertained by
reference to the ambiguous statute on which it is based or to controlling legal
precedent.

      When Minnesota added age discrimination to the MHRA some ten years after
the ADEA was enacted, the Minnesota legislature amended its statement of Public
Policy in Minnesota Statute § 363A.02, Subdivision 1(a)(1). The declared public
policy of the enactment was simply to ensure "freedom from discrimination in
employment" because of "age." The legislature did not attempt to define age
discrimination or to describe the problem which it sought to remedy. Age
discrimination has generally been perceived as a problem for older workers as
opposed to the younger, and the legislature made no statement to indicate that its
understanding was different. I submit that no explicit Minnesota public policy
against protecting older workers can be found in the statute, and it has not received
such an interpretation by any state court or attorney general opinion.

                                           -14-
       At the time the district court ruled in this case, it did not have the benefit of the
Supreme Court's decision in General Dynamics Land Systems, Inc. v. Cline, 540 U.S.
581 (2004), which thoroughly discussed the ambiguity of the term "age
discrimination." The Court ruled against the Cline plaintiffs, who were over 40 years
of age but who sought relief against older workers, holding that the ADEA "forbids
discriminatory preference for the young over the old" but not the reverse. Id. at 584.
The word "age" is ambiguous, said the Court, but in its "commonly understood
narrow sense" the word means "relatively old age." Id. at 592 n.5. The Court
considered the extensive legislative history behind the ADEA and concluded that the
major problem it revealed was discrimination against older workers. Hearings
revealed that younger workers were in a stronger position than their older
counterparts in the job market, and there was no evidence that younger workers
perceived themselves to be discriminated against to the benefit of older workers. Id.
at 589. After a thorough review of the background that led to the landmark law
against age discrimination, the Court concluded that "social history emphatically
reveals an understanding of age discrimination as aimed against the old, and the
statutory reference to age discrimination in this idiomatic sense is confirmed by
legislative history." Id. at 596.

       Minnesota courts look to decisions of the United States Supreme Court to
interpret the MHRA. The Minnesota Supreme Court has stated that it will usually
"follow the lead of the United States Supreme Court's interpretations of federal anti-
discrimination statutes." Huisenga v. Opus Corp., 494 N.W.2d 469, 472 (Minn.
1992). Cases brought under the MHRA are considered under the same analytical
framework defined under federal law, as the majority concedes in its citation to
Chambers v. Metropolitan Property & Casualty Insurance Co., 351 F.3d 848, 855 (8th
Cir. 2003).




                                            -15-
       State cases have also relied on other federal law to interpret the wording of the
MHRA. E.g., Huisenga, 494 N.W.2d at 472-73 (using Title VII case law to interpret
the meaning of "bona fide occupational qualification" under the MHRA); Lang v.
City of Maplewood, 574 N.W.2d 451, 453-54 (Minn. Ct. App. 1998) (using
Americans with Disabilities Act case law to interpret the meaning of "qualified
individual with a disability" under the MHRA). Just as the ADEA proscribes
discrimination "because of [an] individual's age," 29 U.S.C. § 623(a)(1), the
legislature proscribed discrimination in employment "because of . . . age" in the
MHRA, Minn. Stat. § 363A.02, Subd. 1(a)(1). The fact that these prohibitions
against age discrimination are worded in almost identical terms is other evidence that
a Minnesota court would interpret age discrimination in the way the Supreme Court
interpreted the ADEA in Cline.

      There are undoubted differences between the MHRA and the ADEA. In its
"statement of findings and purpose" Congress included mention of the disadvantages
faced by older workers and the adverse affects on commerce from age discrimination.
29 U.S.C. § 621. The MHRA has a briefer statement of purpose in Minn. Stat. §
363A.02, Subd. 1(a)(1), but its provisions on age discrimination were placed within
an existing statutory framework. The MHRA is a general human rights statute, not
one devoted to a single area. Age discrimination is only one of the eleven types of
employment discrimination which are covered in Minn. Stat. § 363A.08; others
include discrimination on the basis of race, sex, and disability. The MHRA also
addresses discrimination in areas other than employment, such as housing, public
accommodations, and business opportunity.

      In such a general purpose statute, the absence of a statement defining age
discrimination in employment should not be read as evidence that the legislature did
not have the same understanding of the problem as Congress. There is nothing in the
record to show that the Minnesota legislature was not motivated by the same concerns
that motivated Congress ten years earlier, and no reason to believe that the same type

                                          -16-
of bias against older workers in employment declined during that period. In defining
age discrimination in its 2004 decision in Cline, the Supreme Court looked at both the
social context at the time the ADEA was enacted and at the "youth culture" that
subsequently developed and concluded that "where younger is better, talk about
discrimination because of age is naturally understood to refer to discrimination
against the older." 540 U.S. at 591.

       By including all persons over the age of majority in § 363A.08, the Minnesota
legislature chose to broaden the group of people protected from age discrimination,
but that does not necessarily mean that it made a policy choice to protect younger
workers to the disadvantage of the older. The statute is at the very least ambiguous
in respect to the problem it intended to address. Although Congress chose to protect
only workers aged 40 and above, hearings held before the statute's passage produced
evidence that workers under the age of 40 were also being discriminated against by
employers who wanted even younger workers. One example was women flight
attendants who were being discharged on reaching the age of 32. Id.

       Nothing in the language of the MHRA or related to its passage indicates that
Minnesota chose to protect young workers at the expense of more vulnerable older
workers. Minn. Stat. § 363A.03 "prohibits using a person's age as a basis for a
decision," but the meaning of that section depends on what was intended by "age."
As shown by the Supreme Court, the meaning of "age" must be understood by
considering how it is commonly understood in respect to discrimination. See id. at
598. In common usage, discrimination on the basis of age means favoring younger
individuals over older ones. Id. at 590-91. Ace's interpretation of the age
discrimination provisions in the MHRA, which has been adopted by the majority,
would appear to create a general cause of action for disgruntled employees. Any
employee unhappy about an employment decision could sue under it as long as
someone of a different age benefited by the employment action. That was not likely
the intent of the drafters.

                                         -17-
       The district court relied on two administrative interpretations by state
commissioners to ascertain the contours of Minnesota public policy on age
discrimination, for the MHRA is itself ambiguous. There were at the time no judicial
decisions construing it, but we now have Cline for guidance. Neither of the two
administrative statements points to any precedent – judicial or administrative – to
show that their interpretation had been adopted by others who work with the statute,
and they should not be accorded undue weight. See Medica Primary v. Central States
Health & Welfare Fund, 505 N.W.2d 589, 593 (Minn. 1993) ("Where . . . the question
is one of first impression and the administrative interpretation is not of longstanding,
we need not accord that interpretation great weight."). Commissioner Korbel's
affidavit does nothing more than echo the letter from Commissioner Rosas which
simply quoted language from the MHRA and summarily concluded that the parties'
collective bargaining agreement violated § 363A.08 by reserving a small proportion
of employment spots for electricians over the age of 50. Without analysis the letter
adopted one interpretation of age discrimination, apparently not contemplating any
alternatives. The letter was not based on any factual record and did not display the
thoroughness of consideration which can make administrative interpretations
persuasive. See Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). For these
reasons it does not demonstrate that Minnesota has an explicit, well defined, and
dominant public policy against protecting older workers. See W.R. Grace, 461 U.S.
at 766.

       Although the text of the MHRA permits the interpretation adopted by the
district court, it can also be read in the way endorsed by the arbitration council and
consistent with Cline. The circumstances here are not like those in Iowa Electric
Light & Power Co. v. Local Union 204, 834 F.2d 1424 (8th Cir. 1987), where we
applied the public policy exception on the basis of unambiguous nuclear power safety
regulations.




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       The law of Minnesota simply does not provide the clarity necessary to invoke
the public policy exception to overcome the strong policies in favor of upholding
arbitration awards, particularly when the award is grounded in a collective bargaining
agreement. Without a clear statement of a dominant, explicit public policy, we are
obligated to defer to the decision of a labor arbitration council to which the parties
submitted the dispute and which made a decision drawing its essence from the terms
of the collective bargaining agreement without exceeding the scope of its authority.

       For these reasons the judgment should be reversed and the matter remanded to
the district court with instructions to enforce the arbitration award.
                         ______________________________




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