No Country for Old Men?: The Non-Preclusive Effect of the Age Discrimination in Employment Act on § 1983 Age Discrimination Claims

By Tauro, Lauren | St. John's Law Review, Spring 2014 | Go to article overview

No Country for Old Men?: The Non-Preclusive Effect of the Age Discrimination in Employment Act on § 1983 Age Discrimination Claims


Tauro, Lauren, St. John's Law Review


Introduction

The nation's population is aging.1 Between 2000 and 2010, the population of Americans aged forty-five to sixty-four years grew at a rate of 31.5%, and the population of Americans aged sixty-five years and older grew at a rate of 15.1%.2 Government projections say there will be about 97.8 million Americans who are fifty-five and older by 2020.3 As the baby boom population continues to age, employed Americans continue to age. Between 2000 and 2010, the number of employed Americans aged fifty-five and older increased from 18.7 million to 30.0 million.4 Given this increase in older Americans, it is not surprising that claims of age discrimination in employment have been on the rise. In 2011, the U.S. Equal Employment Opportunity Commission ("EEOC") reported 23,465 charges of age discrimination, a significant increase from the 16,008 charges the EEOC reported in 2000.5 6 Due to the rising number of Americans aged fixty-five and older in the work force, it is pertinent now, more than ever, to understand the structure and limits of age discrimination litigation.

Age discrimination by government actors is regulated by the U.S. Constitution's Equal Protection Clause contained in the Fourteenth Amendment.6 The U.S. Supreme Court has interpreted the Equal Protection Clause to prohibit government actors from engaging in discrimination based on age.7 Section 1983 of the Civil Rights Act of 1871 ("§ 1983") is one vehicle for vindicating constitutional rights.8 In 1967, Congress enacted the Age Discrimination in Employment Act ("ADEA") to prohibit arbitrary age discrimination in employment.9 Potentially, an aggrieved plaintiff could bring claims alleging age discrimination in employment under both § 1983 and the ADEA.10 Until recently, every U.S. Court of Appeals faced with a § 1983 equal protection age discrimination in employment claim had held that the ADEA is the exclusive remedy for age discrimination in employment, preventing plaintiffs from bringing § 1983 suits.* 11 District courts located in circuits where this issue has not been decided by a Court of Appeals, however, have not reached the same definitive conclusion.12

On August 17, 2012, the U.S. Court of Appeals for the Seventh Circuit created a split among the Courts of Appeals with its decision in Levin v. Madigan.13 In Levin, plaintiff Harvey Levin was fired at the age of sixty-two from his position as an Illinois Senior Assistant Attorney General and was replaced by a female attorney in her thirties.14 Levin asserted claims of age discrimination under both the ADEA and § 1983 in the U.S. District Court for the Northern District of Illinois.15 On appeal, the Seventh Circuit held that Levin's § 1983 age discrimination claim was not precluded by the ADEA.16 The court reasoned that the ADEA's lack of legislative history was insufficient to conclude that Congress intended for the ADEA to preclude § 1983 constitutional claims.17 The court also determined that the divergent rights and protections afforded by the ADEA as compared to a § 1983 equal protection claim were an indication that Congress did not intend for the ADEA to be the exclusive remedy for age discrimination in employment.18

Defendant Lisa Madigan filed a petition for a writ of certiorari to the U.S. Supreme Court on January 14, 2013.19 The Court granted the petition on March 18, 2013.20 The Supreme Court heard oral arguments on the case on October 7, 2013, which was the opening day of the Supreme Court's 2013-2014 term.21 After what was said to be "[a] bad way to open a [t]erm,"22 the Supreme Court issued a per curiam opinion on October 15, 2013 dismissing the writ of certiorari as improvidently granted.23 Therefore, the Supreme Court has yet to address the issues presented in this Note.

This Note argues that the ADEA should not be interpreted to preclude § 1983 constitutional claims for age discrimination in employment. Part I of this Note discusses the history and development of the statutory schemes that provide protection for employees against age discrimination in the workplace: § 1983 of the Civil Rights Act and the ADEA. …

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