The Supreme Court recently granted certiorari to consider the question of “[w]hether the Seventh Circuit erred in holding, in an acknowledged departure from the rule in at least four other circuits, that state and local government employees may avoid the Federal Age Discrimination in Employment Act’s comprehensive remedial regime by bringing age discrimination claims directly under the Equal Protection Clause and 42 U.S.C. § 1983.” In Madigan v. Levin, decided in August 2012, the Seventh Circuit held that state and local government employees can bring age discrimination claims under the Equal Protection Clause via 42 U.S.C. § 1983. The plaintiff, Harvey N. Levin, was terminated at age 60 after six years of employment as an Illinois Assistant Attorney General. Levin subsequently sued the state, the Illinois Attorney General, and four other employees of the office of the Attorney General in their individual capacities, alleging discrimination based on his age and gender. The employee defendants argued that the Age Discrimination in Employment Act (“ADEA”) is the exclusive means of recourse for an age discrimination claim and therefore, they were entitled to qualified immunity for the §1983 claim. The district court and the Seventh Circuit Court of Appeals disagreed with the defendants’ assertion.
On appeal, the Seventh Circuit held that the ADEA is not the sole means of redress for age discrimination claims. The court found that age discrimination in the context of employment violates the Equal Protection Clause. Consequently, the Seventh Circuit’s determination created a circuit split against the First, Fourth, Ninth, and Tenth Circuit findings that §1983 may not be used as a mechanism for bringing an age discrimination claim under the Equal Protection Clause because the ADEA implicitly barred such an avenue. Because the ADEA forecloses individual liability, the four employee defendants could be held individually liable under the Equal Protection Clause. In making its determination, the Seventh Circuit found that the ADEA did not demonstrate any congressional intent to limit constitutional protections.
The Supreme Court’s decision will impact the potential avenues by which a claimant may seek age discrimination review. Currently, the ADEA provides a comprehensive remedial structure including prompt notice requirements, informal dispute resolution, and EEOC involvement. Additionally, certain claims are foreclosed under the ADEA; including reverse age discrimination claims. Perhaps most importantly, where the ADEA permits suits against private and state employers, a §1983 claim may only be brought in certain circumstances, against state employers and individuals. The Supreme Court is expected to hear arguments next term. Check back for updates.
If you or your institution has any questions or concerns regarding any employment related issues, please email Cynthia Augello at firstname.lastname@example.org or call her at (516) 357-3753.
A special thanks to Cynthia Thomas, a law clerk at Cullen and Dykman LLP, for help with this post.