Could the Supreme Court Open The Floodgates For Age Discrimination Suits By Public Sector Employees?

by Hirschfeld Kraemer LLP

In 2007, Facebook CEO Mark Zuckerberg infamously told participants at a startup conference that younger is better.  “I want to stress the importance of being young and technical,” he stated. “Young people are just smarter. Why are most chess masters under 30? I don’t know.”  It seems that many in the technology industry took Zuckerberg’s words to heart.  According to a New York Times article published earlier this year based on a report by PayScale, only six out of thirty-two leading technology companies have workers whose median age is at 35 or higher.

Age discrimination suits are on the rise.  In one of the more notable suits in recent years, Brian Reid sued Google, Inc., his former employer, on numerous grounds, including a claim for age discrimination under the California Fair Employment and Housing Act.  Reid alleged that Google employees told him told him that his opinions and ideas were “obsolete” and “too old to matter,” that he was “slow,” “fuzzy,” “sluggish,” and “lethargic.”  The case was later settled out of court.

This Monday, October 7, 2013, the Supreme Court will hear arguments for both broadening and narrowing the procedural channels for state employees to bring age discriminations suits.  In March of this year, it granted certiorari in Madigan v. Levin.  In the lower court case, Levin v. Madigan, 692 F.3d 607 (7th Cir. 2012), the Seventh Circuit held that state and local government employees are not limited by the ADEA’s comprehensive remedial regime and instead may bring age discrimination claims under the Equal Protection Clause of the 14 Amendment via 42 U.S.C. § 1983.  The Madigan court ruled the opposite way of several other appellate courts.

In Madigan, Harvey N. Levin worked as an Illinois Assistant Attorney General from September 5, 2000 until his termination on March 12, 2006.  Levin was over 60 at the time of his termination and alleges he was replaced by an attorney in her thirties.  Levin asserted claims of age and sex discrimination under the ADEA, Title VII of the Civil Rights Act of 1964, and § 1983 against the State and various individuals.

The Supreme Court is poised to decide whether the ADEA precludes any relief available under Section 1983 for state and local government employees.  The Supreme Court has previously held that “[w]hen remedial devices provided in a particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude the remedy of suits under § 1983.”  Middlesex Cnty. Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 20 (1981).  In ruling that the ADEA’s regime is not an exclusive remedy for state employee age discrimination claims, the Seventh Circuit noted that while the ADEA’s remedial regime is comprehensive, there is no explicit language in the Act’s legislative history or in the statutory language itself that suggests Congress intended to preclude plaintiffs from exploring alternative constitutional remedies for age discrimination claims.  Next, the Court examined whether the ADEA is specifically designed to address constitutional issues.  It noted that the rights and protections afforded by the ADEA and § 1983 differ.  A plaintiff who brings a § 1983 claim may file suit against an individual or even a government organization in certain circumstances, whereas an ADEA plaintiff may only sue their employer, employment agency, or a labor organization.  The ADEA also excludes certain plaintiffs that § 1983 does not, for example, employees under forty.

The Attorney Generals of 21 states have filed an amicus brief in support of the State, arguing that the lower court’s decision would deprive them, as state employers, of the ADEA’s comprehensive process.  In contrast, AARP, Inc. and the National Senior Citizens Law Center argue in their amicus brief that denying state employees the right to bring Section 1983 claims would deny them a federal damages remedy for age discrimination (the Supreme Court previously held that the ADEA does not abrogate States’ sovereign immunity to suits by private individuals, limiting state employees’ monetary damages claims for age discrimination to those claims brought under state age discrimination statutes.  See Kimel v. Florida Bd. of Regents, 582 U.S. 62., 91 (2000).) 

The Supreme Court will soon have its final say on the rights of state employees to sue for age discrimination.  A recent case,  Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246 (2009) may provide a hint as to the potential outcome.  In Fitzgerald, the Court considered whether Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, precludes § 1983 claims.  It held it does not, relying on some of the same reasoning applied by the Seventh Circuit.  If the Seventh Circuit decision is affirmed, state employees will be able to bypass administrative remedies and head straight to the courts.  State employers should consider themselves forewarned.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Hirschfeld Kraemer LLP | Attorney Advertising

Written by:

Hirschfeld Kraemer LLP

Hirschfeld Kraemer LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.