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Supreme Court begins new term with arguments on the exclusivity of the ADEA for state and local government employees

October 4th, 2013  |  Deborah Hammonds

Despite the government shutdown, the Supreme Court is expected to officially start its new term on Monday, October 7.  There are several provocative employment law issues awaiting the High Court during the 2013-2014 term, including the first case scheduled for oral arguments, Madigan v Levin (Dkt No 12-872), in which the Court will determine whether state and local government employees may avoid the ADEA and bring age discrimination claims directly under the Equal Protection Clause and Section 1983.

Background. After he was terminated, an Assistant Attorney General filed a lawsuit alleging, among other claims, a Section 1983 equal protection claim against the Illinois Attorney General and several of her staff individually, asserting that he had been fired due to age discrimination. One judge concluded, on a motion to dismiss, that the employee’s Section 1983 claim was precluded because the ADEA is the exclusive remedy for age discrimination in employment. A subsequent judge reached the opposite conclusion while ruling on a motion to dismiss. The individual defendants appealed.

The Seventh Circuit, resolving a question of first impression, held that the ADEA is not the exclusive remedy for age discrimination in employment claims, and affirmed a district court’s conclusion that a discharged assistant attorney general could proceed with his Sec. 1983 equal protection claims against individual defendants. Further, because it was clearly established at the time of his discharge that age discrimination in employment violates the Equal Protection Clause, the Illinois Attorney General and other individual defendants were not entitled to qualified immunity.

Split among the circuits. Other circuits faced with the question of whether the ADEA precludes a Section 1983 equal protection claim have relied on the Fourth Circuit’s reasoning in Zombro v Baltimore City Police Dept and some have concluded that the ADEA precludes a Sec. 1983 equal protection claim. District courts are split on the issue, and two Northern District of Illinois judges have held the ADEA does not preclude a Sec. 1983 equal protection claim.

In reaching its determination, the Seventh Circuit reviewed existing Supreme Court and other precedent, the statutory language and legislative history of the ADEA, and conducted a comparison of the rights and protections afforded by the ADEA and a Sec. 1983 claim. Although the ADEA enacts a comprehensive statutory scheme for enforcement of its own statutory rights, the Seventh Circuit found that it does not preclude a Sec. 1983 claim for constitutional rights. Calling it “admittedly a close call, especially in light of the conflicting decisions from our sister circuits,” the Seventh Circuit based its holding on “the ADEA’s lack of legislative history or statutory language precluding constitutional claims, and the divergent rights and protections afforded by the ADEA as compared to a [Sec.] 1983 equal protection claim.”

The petition for certiorari was filed on January 14 and the High Court granted cert on March 18. The question the Court agreed to address is: Whether 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.

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