WASHINGTON, D.C. - The U.S. Supreme Court this morning
agreed to hear the appeal of a Seventh Circuit U.S. Court of Appeals ruling
that state and local government employees may bring age discrimination claims
directly under the Equal Protection Clause of the 14th Amendment to the U.S.
Constitution and 42 U.S. Code Section 1983 (Lisa Madigan, et al. v. Harvey
Levin, No. 12-872, U.S. Sup.; See September 2012, Page 63) (lexis.com
subscribers may access Supreme Court briefs for this case).
Age Bias Claims
Harvey Levin worked as an Illinois assistant attorney general from
Sept. 5, 2000, until May 12, 2006. Levin, who was over age 60 at the time
he was fired, believed that he was fired because of his age and gender.
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) in the U.S.
District Court for the Northern District of Illinois. He brought claims
under the Age Discrimination in Employment Act (ADEA), 29 U.S. Code Section
621, et seq., Title VII of the Civil Rights Act of 1964, 42 U.S. Code
Section 2000e, et seq., and the equal protection clause via 42 U.S. Code
The individual-capacity defendants argued that they were
entitled to qualified immunity with respect to Levin's Section 1983 age
discrimination claim. On March 10, 2010, Judge David H. Coar agreed that
they were entitled to qualified immunity because the availability of such a
claim was not clearly established at the time Levin was terminated.
However, Judge Coar disagreed with the defendants that the ADEA forecloses
Levin's Section 1983 equal protection claim.
On Jan. 7, 2011, Levin's case was reassigned to Judge
Edmond E. Chang. Judge Chang issued an opinion on July 12, 2011, granting
in part and denying in part two pending motions for summary judgment.
Judge Chang did not disturb Judge Coar's ruling that the ADEA is not the
exclusive remedy for age discrimination claims. However, he ruled that
Levin is not an "employee" for purposes of Title VII and the ADEA. Judge
Chang also held that the individuals were not entitled to qualified immunity on
Levin's Section 1983 claim for age discrimination.
The individual defendants filed an interlocutory appeal,
asking the Seventh Circuit to find that they are entitled to qualified immunity
because the ADEA is the exclusive remedy for Levin's age discrimination claims.
The Seventh Circuit panel affirmed. "At the time of
the alleged wrongdoing, it was clearly established that age discrimination in
employment violates the Equal Protection Clause. . . . Although age
is not a suspect classification, states may not discriminate on that basis if
such discrimination is not 'rationally related to a legitimate state
interest.' Whether or not the ADEA is the exclusive remedy for plaintiffs
suffering age discrimination in employment is irrelevant, and as Judge Chang
noted, it is 'odd to apply qualified immunity in the context where the
procedural uncertainty arises from the fact that Congress created a statutory
remedy for age discrimination that is substantively broader than the equal
protection clause.' . . . Because Levin's constitutional right was
clearly established, the Individual Defendants are not entitled to qualified
immunity," Judge Michael S. Kanne wrote for the panel.
High Court Appeal
The defendants filed a petition for writ of certiorari
on Jan. 14. They argued that the question of how such employment
disputes should be resolved must be decided by the high court because the
federal courts are split.
"There are approximately 20 million state and local
employees nationwide, and whether § 1983 is available to circumvent the ADEA's
comprehensive remedial regime-including its requirements of prompt notice,
informal dispute resolution, and EEOC participation-is an important and
frequently recurring question requiring this Court's immediate review.
The answer should not vary (as it does now) from State to State and, in places,
among federal judges or between federal and state judges within a State," the
Solicitor General Michael A. Scodro in Chicago represents the petitioners.
Edward R. Theobald of Chicago
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