U.S. Supreme Court Considers Age Discrimination Claims Under the Equal Protection Clause of the Constitution

Tuesday, October 15, 2013

Last week the United States Supreme Court opened its 2013-2014 session with oral argument in a case involving whether state and local government employees may avoid the Federal Age Discrimination and Employment Act remedial scheme by instead bringing age discrimination claims directly under the Equal Protection Clause of the Constitution and 42 U.S.C. § 1983.  ADEA claims are brought against an employer, while § 1983 claims are brought against individual government actors.  The damages that can be recovered differ as well.  The Seventh Circuit in Levin v. Madigan grabbed the Supreme Court’s attention when it ruled that a former Senior Assistant Attorney General in Illinois was not bound by the ADEA and was allowed to pursue an action against various Illinois state officials for age discrimination under § 1983.  This ruling is contrary to the holdings of several other circuit courts, including the First Circuit, which covers, among other states, all of Northern New England.

Complicating the case is that the issue seems to have been framed in terms of whether or not an individual with an ADEA claim is precluded from bringing a § 1983 claim (the Seventh Circuit said no).  In the case before the Supreme Court, the individual plaintiff himself was not even eligible to bring a claim under the ADEA because he fell under an exemption from coverage for certain government officials in policy-making positions.

Though a decision could be months away, the Court’s ruling may significantly impact state and local governments’ ability to defend age discrimination claims.  If the Supreme Court adopts the rationale of the Seventh Circuit, then municipal and state governments in Northern New England can expect to see a likely increase in the complexity and scope of age discrimination claims.