Employment Law - Age Discrimination - Seventh Circuit Holds That the ADEA Does Not Preclude (Section) 1983 Equal Protection Claims

Harvard Law Review, March 2013 | Go to article overview

Employment Law - Age Discrimination - Seventh Circuit Holds That the ADEA Does Not Preclude (Section) 1983 Equal Protection Claims


Section 1983, (1) which "authorizes suits to enforce individual rights under federal statutes as well as the Constitution," (2) has long "provide[d] an impartial federal forum for a state's violation of constitutional rights." (3) Workers are protected from age discrimination by statute -- the Age Discrimination in Employment Act of 1967 (4) (ADEA) -- as well as by the Constitution through the Equal Protection Clause. (5) However, in 1989, the Fourth Circuit held in Zombro v. Baltimore City Police Department (6) that the ADEA was the exclusive remedy in federal courts for age discrimination claims against state employers, precluding the plaintiff's equal protection claim via [section] 1983. (7) Other circuits followed the Fourth, including the D.C., (8) Fifth, (9) Tenth, (10) First, (11) and Ninth. (12) Recently, in Levin v. Madigan, (13) the Seventh Circuit broke with its sister circuits and held "that the ADEA is not the exclusive remedy for age discrimination in employment claims." (14) Levin was the only case in this series to be decided after the Supreme Court's decision in Fitzgerald v. Barnstable School Committee. (15) Its recognition of Fitzgerald's impact on [section] 1983 doctrine not only justifies the creation of a 6-1 circuit split, but also should persuade the other circuits to reexamine ADEA preclusion.

Harvey Levin served in the Office of the Illinois Attorney General (OIAG) from 2000 to 2006; he was over sixty years old when he was fired. (16) Levin protested that his dismissal constituted age and sex crimination, given that the successor to his role was a "female attorney in her thirties," but the OIAG disputed that it "replaced" Levin and asserted instead that he was terminated for poor performance. (17)

In 2007, Levin sued numerous defendants in the U.S. District Court for the Northern District of Illinois for "age and sex discrimination under the ADEA, Title VII, and the Equal Protection Clause via 42 U.S.C. [section] 1983." (18) The ADEA and Title VII claims became mired in litigation over those statutes' definitions of "employee" and "employer"; the defendants eventually won summary judgment on those claims by showing that Levin was not a qualified employee. (19) With regard to the [section] 1983 equal protection claims, the parties wrangled over a number of legal issues, including whether any of the defendants sued in their individual capacities were entitled to qualified immunity and whether the ADEA precluded age discrimination claims under [section] 1983. (20) The district court answered both questions in the negative, (21) and the individual defendants filed an interlocutory appeal of the qualified immunity ruling.

The Seventh Circuit affirmed. Writing for the panel, Judge Kanne (22) rejected the defendants' argument that "they [were] entitled to qualified immunity because the ADEA is the exclusive remedy for Levin's age discrimination claims." (23) An exhaustive review of existing Supreme Court doctrine on implied preclusion of [section] 1983 remedies by statutory schemes (24) yielded two main conclusions. First, to ascertain congressional intent -- the "most important consideration" in determining whether a statutory scheme precludes a [section] 1983 equal protection claim (25) -- the court derived a multifactor test, weighing "[1] [the] language of the statute ..., [2] legislative history, [3] the statute's context, [4] the nature and extent of the remedial scheme, and [5] a comparison of the rights and protections afforded by the statutory scheme versus a [section] 1983 claim." (26) Second, the court's analysis carefully distinguished between cases involving "federal statutory rights under [section] 1983" and those involving "constitutional rights under [section] 1983." (27) This analysis closed with an in-depth review of Fitzgerald, the Court's most recent decision on this issue, which held that Title IX did not preclude [section] 1983 equal protection claims. (28)

Turning to Levin's claims, the court noted that "[w]hether the ADEA precludes a [section] 1983 equal protection claim is a matter of first impression in the Seventh Circuit. …

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