The Preclusion of § 1983 Claims by the Age Discrimination in Employment Act Following Hildebrand V. Allegheny County

By Donnelly, Erin L. | St. John's Law Review, Spring 2016 | Go to article overview

The Preclusion of § 1983 Claims by the Age Discrimination in Employment Act Following Hildebrand V. Allegheny County


Donnelly, Erin L., St. John's Law Review


INTRODUCTION

The aging of the Baby Boomer generation, which completed its entry into the workforce in the late 1970s and early 1980s, combined with the economic recession has resulted in older workers trying to remain in the American workforce. Baby Boomers are both retiring later and reentering the workforce after retiring.1 Due to the aging workplace, the problem of age discrimination has become increasingly prevalent. One of the pitfalls of the aging workforce is the lack of judicial resources to accommodate for the numerous age discrimination claims. Because of this growing problem, the United States Circuit Courts of Appeals have explored the issue of which remedies are available to these aggrieved workers.

In 1967, Congress enacted the Age Discrimination in Employment Act ("ADEA") to combat the growing problem of age discrimination in the workplace.2 The ADEA is designed "to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; to help employers and workers find ways of meeting problems arising from the impact of age on employment."3 Workers are also protected from discrimination in the workplace by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.4 Specifically, 42 U.S.C. § 1983 creates a private right of action through which citizens can bring claims for equal protection violations. Thus, workers have been asserting their age-based discrimination claims under either both the ADEA and § 1983 or simply under § 1983.5 Recently, there has been a split of authority among the circuit courts as to whether federal age discrimination claims by state or local government workers may be brought only under the ADEA as opposed to both the ADEA and § 1983.

Prior to 2012, all of the Circuit Courts of Appeals that had considered whether the ADEA is the exclusive remedy for agebased discrimination concluded that the ADEA precludes plaintiffs from bringing concurrent claims of equal protection violations under § 1983.6 The First, Ninth, Tenth, and District of Columbia Circuits followed the analysis presented by the Fourth Circuit in the then-leading case, Zombro v. Baltimore City Police Department.7 There, the court analyzed the comprehensive remedial scheme of the ADEA and concluded that age-based discrimination claims can not concurrently be brought under § 1983 because the remedial scheme implied preclusion of § 1983.8 The only circuit to have concluded otherwise based its holding on the United States Supreme Court's decision in Fitzgerald v. Barnstable School Committee.9

In 2009, the Supreme Court examined whether plaintiffs claiming sexual harassment, in violation of Title IX of the Education Amendments of 1972,10 could bring concurrent claims under § 1983 for violations of the Equal Protection Clause.11 The Court examined the nature and extent of the remedial scheme of Title IX and found that a plaintiffwould not be circumventing procedural requirements by bringing a concurrent § 1983 claim.12 In assessing the legislative intent of Title IX, the Court noted there was essentially no remedial scheme that would have implied preclusion of § 1983 claims by Title IX.13 The Court also reasoned that Congress did not intend for Title IX to be the exclusive means of remedying gender discrimination in schools.14

Following Fitzgerald, two circuit courts addressed the exclusivity of the ADEA as a remedy for age discrimination in the workplace-the Seventh Circuit in Levin v. Madigan15 and the Third Circuit in Hildebrand v. Allegheny County.16 The Seventh Circuit was the first circuit court to explore the issue of whether plaintiffs could bring age-based discrimination claims under both the ADEA and § 1983 as opposed to under only the ADEA in light of the Supreme Court's landmark decision in Fitzgerald. In Levin, the Seventh Circuit equated the ADEA to Title IX to find that plaintiffs can bring age-based discrimination claims under both the ADEA and § 1983. …

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