In the first oral argument of the 2013-14 term, the U.S. Supreme Court, on Oct. 7, 2013, addressed the question of whether state and local government workers may file constitutional claims of age discrimination instead of pursuing their complaints under the Age Discrimination in Employment Act (ADEA) (Madigan v. Levin [No. 12-872]).
The ADEA sets forth requirements that employees “exhaust their administrative remedies” before filing a lawsuit. This includes filing a charge with the Equal Employment Opportunity Commission (EEOC) and allowing time for the EEOC to settle the dispute. Constitutional equal-protection claims are brought under the Civil Rights Act of 1871 (42 U.S.C. Section 1983), which allows plaintiffs to go directly to court. In addition, employees can seek punitive damages under Section 1983, while such relief is not available under the ADEA.
The ruling in the case will primarily affect state and local employers and employees but may be significant for private employers because an underlying issue is whether Congress, in enacting a law with comprehensive remedies such as the ADEA, must explicitly prohibit recourse to other statutory remedies, according to Christin Choi and Christina Michael, attorneys in the Philadelphia office of Fisher & Phillips. The court has previously held that when remedial devices provided in a particular statute are “sufficiently comprehensive,” they may demonstrate congressional intent to preclude employees from suing under Section 1983, Choi and Michael said.
Harvey Levin was hired in 2000 as assistant attorney general in Illinois’ Consumer Fraud Bureau. Levin, who was 55 at the time, was promoted to senior assistant attorney general in December 2002, but supervisors advised him that they had concerns about alleged low productivity, excessive socializing at work, inferior litigation skills and poor judgment.
Levin was fired in May 2006, along with 11 other lawyers. He alleged he was replaced by a female attorney in her 30s.
The attorney general, Lisa Madigan, denied that any of the terminated lawyers were “replaced,” noting that their cases were not reassigned to younger attorneys.
Levin filed a lawsuit in federal district court in Illinois, claiming sex discrimination under Title VII of the 1964 Civil Rights Act and age bias under the ADEA. He also brought claims under Section 1983, asserting that the alleged sex and age discrimination violated his 14th Amendment equal-protection rights. In addition to suing the state of Illinois, Levin sued Madigan and four employees of the attorney general’s office in their individual capacities under Section 1983.
All of the defendants filed motions to dismiss Levin’s Section 1983 claims on the ground that the ADEA was his exclusive remedy, but the trial court allowed the constitutional claims to go forward.
The defendants appealed the ruling, but the 7th U.S. Circuit Court of Appeals affirmed the trial court’s decision.
Are ADEA Remedies Exclusive?
Illinois Solicitor General Michael A. Scodro, representing Madigan, argued that, in enacting the ADEA, Congress intended to create a comprehensive body of procedures and remedies designed to combat age discrimination in the workplace.
“In extending these procedures and remedies to government employees, Congress did not intend to permit state and municipal workers alone to frustrate this regime or bypass it entirely using the more general remedies of Section 1983,” Scodro said.
Justice Ruth Bader Ginsburg asked Scodro: If the ADEA is expanding the civil rights protection against age discrimination, making it much more generous to the employee, “isn't it strange to think that Congress at the same time wanted employees to have these expanded rights and to do away with the pre-existing remedies?”
Edward R. Theobald III of Chicago, Levin’s attorney, argued that Congress did not intend in passing the ADEA to preclude a pre-existing Section 1983 equal-protection claim for age bias.
The differences in the rights and protections between the ADEA and the Equal Protection Clause by way of Section 1983 are “vast,” Theobald said.
In an ADEA suit, the claim is brought against the employing government agency, while in an equal-protection case under Section 1983, an individual government official is the defendant, he said.
Further, the ADEA exempts certain categories of workers, while Section 1983 does not carve out any individual exclusions.
Is Case Properly Before High Court?
Rather than addressing the ADEA issue, the justices spent much of the hour-long argument questioning whether the case should be before the court at all. A friend-of-the-court brief filed by a group of law professors who specialize in court procedure had argued that the 7th Circuit had no authority to decide the ADEA issue in the first place. The case reached the appellate court before it had been fully tried by the lower court, solely to review the lower court's decision about whether Madigan had qualified immunity from suit.
In addition, the justices noted, there was a question as to whether Levin was even covered by the ADEA. If he was considered a political appointee as opposed to an employee, the ADEA would not come into play, they said.
“I think that the court was expressing serious concerns that the appeal had been improvidently granted,” Katharine Parker, an attorney in Proskauer’s New York office told SHRM Online. “There were procedural questions as to whether or not the 7th Circuit could even take up the question of whether the ADEA precluded Section 1983 claims” on appeal of the qualified immunity issue, she said.
Joanne Deschenaux, J.D., is SHRM’s senior legal editor.