Author: Beth P. Zoller, XpertHR Legal Editor
The Supreme Court may soon resolve a split among the appeals courts as to whether filing a charge under the Age Discrimination in Employment Act (ADEA) with the Equal Employment Opportunity Commission (EEOC) is the sole remedy for state and local government employees claiming age discrimination. See Madigan v. Levin, Docket No. 12-872, +2013 U.S. LEXIS 2238 (March 19, 2013). In doing so, it will decide whether the 7th Circuit Court of Appeals was wrong when it held that state and local employees can proceed directly to court on an age discrimination claim based on the equal protection claims under the Fourteenth Amendment via +42 U.S.C. § 1983, (Section 1983) instead of filing an ADEA charge. See Levin v. Madigan, +692 F.3d 607 (7th Cir. 2012). The 7th Circuit decision was contrary to decisions in other courts (1st, 4th, 5th, 9th, 10th and D.C. Circuits) which have held that the ADEA charge is the sole remedy and it therefore prevents employees from filing age discrimination claims directly under the equal protection clause using Section 1983. If the Supreme Court agrees with the 7th Circuit, this could lead to an increased number of age discrimination claims filed in court by public employees.
In the 7th Circuit case, the employee, Harvey Levin, was terminated from his position with the Illinois Attorney General's office when he was 61 years old and replaced by an employee in her 30s. When Levin sued his employer under the ADEA, Title VII of the Civil Rights Act of 1964 (Title VII) and the Equal Protection Clause of the Fourteenth Amendment via +42 U.S.C. § 1983, the lower court dismissed Levin's claims under the ADEA and Title VII because he did not qualify as an "employee" under those statutes, but held that Levin could pursue his constitutional claim. The 7th Circuit agreed with the lower court, finding that the ADEA provides different rights and protections than Section 1983 and did not prohibit an employee from bringing a constitutional claim for age discrimination.
The Supreme Court is expected to hear arguments and issue a decision in the fall.