Age discrimination is heading back to the Supreme Court in the 2013 Term, and the challenge in question matriculated from the Seventh Circuit Court of Appeals.
Monday, the Supreme Court agreed to consider “whether state and local government employees may avoid the Federal Age Discrimination in Employment Act’s comprehensive remedial regime by bringing age discrimination claims directly under the Equal Protection Clause and 42 U.S.C. § 1983.”
The case, which the Seventh Circuit decided in August 2012, is Madigan v. Levin.
Harvey N. Levin worked as an Illinois Assistant Attorney General for almost six years. He was over 60 at the time of his termination.
Levin believes he was fired because of his age and gender, so he sued the State of Illinois, the Office of the Illinois Attorney General, Illinois Attorney General Lisa Madigan (in her individual and official capacities), and four additional Attorney General employees in their individual capacities.
The individual-capacity defendants argued at the district court level that they were entitled to qualified immunity for the §1983 age discrimination claim because the ADEA is the exclusive remedy for age discrimination claims. The district court disagreed. The Seventh Circuit Court of Appeals affirmed that decision on interlocutory appeal.
The appellate court noted that the ADEA is not the exclusive remedy for age discrimination in employment claims, and does not preclude a §1983 equal protection claim. Although age is not a suspect classification, the Supreme Court has held that states may not discriminate on that basis if such discrimination is not "rationally related to a legitimate state interest." Since, at the time of the alleged wrongdoing, it was clearly established that age discrimination in employment violates the Equal Protection Clause, the Seventh Circuit concluded that the individual defendants were not entitled to qualified immunity.
The decision created a 4-1 circuit split.