Does the Age Discrimination in Employment Act provide the sole vehicle for age discrimination claims under federal law or are the claims covered under the Equal Protection Clause via 42 U.S.C. § 1983?
Respondent Harvey N. Levin was an Assistant Attorney General (“AAG”) for the state of Illinois until his employment was terminated in May 2006. Levin sued Illinois Attorney General Lisa Madigan and other state Petitioners under the Age Discrimination in Employment Act (“ADEA”) and the Equal Protection Clause via 42 U.S.C. § 1983. Madigan argues the ADEA precludes Levin’s § 1983 claim. Levin contends the ADEA does not preclude a § 1983 claim for age discrimination and even if the ADEA does preclude such a claim, the ADEA does not apply to him because he is not an “employee” for ADEA purposes. In contrast with four other circuit decisions, the Seventh Circuit held that the ADEA does not preempt § 1983 claims. If the lower court’s ruling stands, Levin will be able to pursue his age discrimination claim in court. The Supreme Court can decide what avenues government workers have to pursue age discrimination claims. The decision will also impact the volume of cases that states, and other levels of government, will need to defend.
Questions as Framed for the Court by the Parties
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.
In 2000, at the age of 55, Levin began working as an AAG for the state of Illinois. After six years and a promotion to Senior AAG, Madigan’s office terminated Levin’s employment. During that employment, Levin received performance reviews stating he met or exceeded expectations. Madigan also fired eleven other attorneys at the same time as Levin. According to the office, Levin was terminated for “excessive socializing, inferior litigation skills, and poor judgment,” which issues were brought to Levin’s attention. Levin points to the subsequent hiring of younger attorneys as showing he was really fired because of his age, a contention that the parties still dispute.
Levin responded to his termination with a lawsuit in the District Court for the Northern District of Illinois alleging age and sex discrimination under the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, and the Equal Protection Clause through 42 U.S.C. § 1983. He filed his complaint against Madigan in her official capacity, the office of the Illinois Attorney General, and the State of Illinois. Additionally, he sued individual defendants, Madigan and four other employees of the Illinois Attorney General.
After the defendants filed motions to dismiss, the court held that Levin was an “employee” for ADEA purposes. It also granted the individual defendants’ motion to dismiss the § 1983 age discrimination claim, finding that the ADEA did not preclude a § 1983 claim, but that the individual defendants were entitled to qualified immunity.
Upon the assigned judge’s retirement, the case was reassigned to a new judge, who granted in part and denied in part the two motions for summary judgment. The court did not reconsider the decision that the ADEA did not preclude a § 1983 claim. However, it determined that Levin was not an employee for ADEA purposes and held that the individual defendants were not entitled to qualified immunity because the Fourteenth Amendment clearly prohibits arbitrary age discrimination.
Madigan and the other defendants appealed this holding to the Seventh Circuit, on the grounds that they were entitled to qualified immunity and that the ADEA is the sole remedy for age discrimination claims. The Seventh Circuit affirmed the lower court’s decision. Contrary to other circuits that have addressed the ADEA’s preclusive effect, the Seventh Circuit ruled that it does not preclude a § 1983 claim. The court based this determination on the lack of clear congressional intent in the legislative history and the lack of clear statutory language precluding constitutional claims in the ADEA itself.
This case presents the Supreme Court with the opportunity to consider whether a state employee can bring an age discrimination claim under both the ADEA and 42 U.S.C. § 1983. Madigan argues that the ADEA is the sole vehicle for age-discrimination claims. However, Levin’s position is that the ADEA does not apply to him and further, that it was not meant to be the sole remedy for age discrimination in the workplace.
EXPOSURE OF STATE AND MUNICIPAL EMPLOYERS
The International Municipal Lawyers Association (“IMLA”), in support of Madigan and the other petitioners, argues that affirming the Seventh Circuit’s ruling would expose municipal and state governments to increased litigation costs due to the lack of safeguards against illegitimate age discrimination claims. If employee age discrimination claims are allowed under § 1983, the IMLA argues that federal courts may functionally replace the Equal Opportunity Employment Commission (“EEOC”). Under the ADEA, potential plaintiffs must first have the EEOC evaluate their claims and try to resolve them without court action. However, the IMLA contends, if plaintiffs can bring claims under § 1983, they would be able to bypass the EEOC. Additionally the IMLA contends that § 1983 lawsuits could expose state governments to damages claims that are generally unavailable under the ADEA’s scheme.
In support of Levin, the American Federation of Labor and Congress of Industrial Organizations (“AFL-CIO”) counters this argument by noting that the ADEA and § 1983 “differ in terms of the categories of age-related discrimination claims covered, who may bring suit, and who may held legally responsible for violations.” Further, the AFL-CIO contends that litigation in federal courts would not increase because of a heavier burden on proving unconstitutional age discrimination rather than age discrimination under the ADEA.
Echoing the IMLA, the State of Michigan and twenty other states urge the Court to reverse the Seventh Circuit’s decision. Michigan claims that allowing plaintiffs to bypass the ADEA’s remedial scheme will deprive the states of protection from illegitimate age discrimination claims. Moreover, Michigan asserts that the Seventh Circuit’s analysis will treat state and local governments less favorably than private and federal employers. Michigan argues that the Seventh Circuit’s analysis “require[s] private employees to exhaust their administrative remedies under state law before filing suit, but not state-government employees.”
EMPLOYEES’ RIGHT TO REDRESS
Levin contends that viewing the ADEA as the sole remedy for age discrimination claims is patently unconstitutional because it leaves certain individuals without remedy. In support of Levin, AARP argues that the ADEA leaves “elected officials and certain members of their staff, appointees, law enforcement officers, and firefighters,” without rights to claim age discrimination in the employment context. Further, AARP claims that § 1983 is a necessary vehicle because it allows plaintiffs to bring employment age discrimination lawsuits against individuals other than employers, and it allows claims for damages, which the ADEA does not. Accordingly, AARP asserts that because § 1983 and the ADEA seek to enforce rights by the Constitution and by statute, respectively, both avenues should be open to plaintiffs.
In contrast, Michigan suggests that, at a minimum, where the ADEA protects a state or municipal government employee, § 1983 actions should be displaced. In Michigan’s view, this would allow those who do not fall under the ADEA’s protection to bring § 1983 claims, rather than leaving them without remedy if the ADEA is the sole vehicle for redress.
DOES THE ADEA PRECLUDE A CAUSE OF ACTION UNDER THE EQUAL PROTECTION CLAUSE?
Section 1983 allows a person to bring a civil action against a state official who has violated the person's statutory or constitutional rights. If a right is secured under a statute containing a sufficient alternative remedy, a claimant may be precluded from pursuing a § 1983 action, but will instead have to use that alternative remedy. The primary determinant is whether Congress intended the statutory remedy to be exclusive.
Levin argues that the Supreme Court has established two different legal questions that a lower court can ask to determine a new statute’s effect on a preexisting right. The first question is whether Congress intends for a new statutory right to be enforced through both the statute and § 1983. The second question is: “when Congress creates a new legal right, [does] it intend to reduce remedies and protections under some other, pre-existing independent right.” Levin asserts that the second question should be applied in this case. In Levin’s view, this second question creates a more demanding standard based on a “presumption against [implied repeal] of pre-existing rights or remedies.”
Accordingly, Levin argues that the comprehensiveness of a remedial scheme only matters because it indicates Congress’s intent to make that scheme the exclusive method to enforce a pre-existing right. He contends that the ADEA would not preclude a § 1983 claim unless Congress intended the ADEA’s remedial scheme to be the exclusive method of enforcing a claim of age discrimination in employment. He asserts that Congress had no such intent with respect to age discrimination in violation of the Equal Protection Clause. Levin notes that the scope of the ADEA’s protection is much narrower than the scope of the constitutional protection against age discrimination because individuals under the age of 40 are excluded from ADEA protections. Levin also notes that the ADEA prohibits many otherwise constitutional employment practices.
Madigan, on the other hand, argues that the standard is the same for statutes creating a new legal right and statutes enforcing a pre-existing legal right. She reads the previous case law as establishing one standard, not two questions: that the only consideration in determining congressional intent to preclude § 1983 action is whether a statute contains a comprehensive remedial scheme and if that remedial scheme is incompatible with § 1983. Madigan argues that implied repeal does not apply to § 1983 because it does not create a substantive right; it merely provides a remedial scheme for the violation of pre-existing rights.
Madigan asserts that the ADEA contains a comprehensive remedial scheme that prevents Levin from bringing a claim for age discrimination in employment under § 1983. She argues that the ADEA’s remedial scheme contains requirements inconsistent with § 1983, including those mandating that an employee first attempt to resolve disputes informally through the EEOC and submit a claim to the EEOC within 180 days of an alleged age discrimination, and prohibiting the employee from filing a lawsuit within 60 days of filing a complaint with the EEOC. Madigan argues that allowing Levin to pursue a claim under § 1983 would allow him to circumvent the ADEA's procedural requirements, making § 1983 incompatible with the ADEA.
WHAT DOES THE ADEA MEAN FOR THE EMPLOYMENT DISCRIMINATION CLAIM OF SOMEONE WHO IS NOT AN EMPLOYEE UNDER THE ADEA’S DEFINITION?
Levin notes that he is not considered an “employee” within the ADEA, which excludes from its definition of protected employees elected officials and their “appointee[s] on the policymaking level." Thus, he asserts, even if the ADEA precludes state and local government employees from bringing age discrimination claims under § 1983, he is not so precluded because he does not fall within the ADEA’s protections. Because there is no dispute that he is not an “employee” under the ADEA, Levin suggests that “the Court may wish to dismiss the petition as improvidently granted.”
Madigan argues, however, that the Government Employee Rights Act of 1991 (“GERA”), which entitles previously exempt high-ranking state and local government employees to ADEA remedies, 42 U.S.C. § 2000e-16(b)(2), includes appointees such as Levin. She asserts that allowing appointees to proceed under § 1983 would enable them to circumvent the GERA, which was enacted specifically to provide ADEA coverage to individuals such as Levin.
In response, Levin asserts that the GERA only covers individuals not covered by the ADEA, and therefore, the ADEA and the GERA are mutually exclusive. Further, Levin argues that there is a “longstanding national policy to prevent and correct age discrimination in employment . . . [which] involves a range of overlapping prohibitions and remedies.” Levin argues that the Court’s decisions regarding Title VII cases should control the Court’s decision in the instant case. He notes that the Court has ruled that Title VII does not preclude a person from pursuing a § 1983 equal protection claim for discrimination based on race, gender, or national origin.
On the other hand, Madigan argues that the GERA should be construed as an extension of the ADEA for several reasons. First, she notes that the GERA does not include its own remedial scheme; it merely extends the rights and protections of the ADEA and other civil rights laws to previously-exempted classes of government employees. Second, Madigan asserts that it is immaterial that Congress passed the GERA as a separate provision rather than amending the ADEA, Title VII, and other civil rights laws. She claims that substantively, the GERA is an amendment to those statutes, not a separate provision. Third, Madigan argues that it is impracticable to treat the ADEA and the GERA differently because determining whether a claimant is a worker under the ADEA or the GERA is often a difficult and time-consuming inquiry. In her view, if one statute displaces § 1983 but the other does not, then every § 1983 claim for age discrimination in public employment would require extensive litigation of whether the claimant falls under the ADEA or not.
Further, Madigan argues that Title VII is distinguishable from the ADEA on several grounds. First, she notes that the legislative history of Title VII clearly shows that Congress did not intend that Act’s remedial scheme to displace § 1983’s remedial scheme. Second, Madigan argues that Title VII and the ADEA offer substantially different remedies; the ADEA prohibits punitive and compensatory damages, but Title VII allows them.
In this case, the United States Supreme Court will consider whether state and municipal employees may bring an age discrimination claim under § 1983, where the ADEA provides an alternative remedy for age discrimination claims. The Court’s ruling will not only impact state and municipal employees’ right to redress for age discrimination under the Constitution, but it will also impact the government’s ability to defend age discrimination claims. Additionally, the Court’s ruling should resolve the current 4-1 circuit split.
- Sheldon H. Nahmod, Certiorari Granted in Madigan v. Levin: An Important Section 1983/ADEA Preclusion Case, Nahmod Law, Apr. 17, 2013.
- Donald Scarinci, Supreme Court to Take on Age Discrimination: Madigan v. Levin, Constitutional Law Reporter, Mar. 28, 2013.