Federal appellate courts have agreed that an allegation of age discrimination cannot be brought as a Section 1983 claim. In Levin v. Madigan, the Seventh Circuit held that an age claim under Section 1983 is viable. In March 2013, the Supreme Court agreed to address this issue. Eight days after hearing oral argument on the first day of its 2013-14 term, however, the Court decided that the writ was improvidently granted and dismissed the case.
For over two decades federal appellate courts have agreed that an allegation of age discrimination cannot be brought as a Section 1983 claim. The rationale? The Age Discrimination in Employment Act (ADEA) provides a remedy for discrimination based on age, and permitting an employee to seek recovery for age discrimination through a Section 1983 equal protection claim would undermine the comprehensive remedial scheme set forth in the ADEA. Breaking ranks, the Seventh Circuit -- which had not previously addressed the issue -- found that an age claim under Section 1983 is viable. Affirming a district court's decision, the court held in Levin v. Madigan, 692 F.3d 607 (7th Cir. 2012) [an enhanced version of this opinion is available to lexis.com subscribers]that the ADEA does not eliminate the ability to raise a Constitutional equal protection claim through Section 1983. Madigan petitioned the Supreme Court for a writ of certiorari, and on March 18, 2013 the Court granted that petition. Eight days after hearing oral argument on the first day of its 2013-14 term, however, the Court decided that the Writ of Certiorari was improvidently granted and dismissed the case. The Issue Presented on Certiorari The views of the opposing parties were summed up in the "question presented" in Madigan's petition and Levin's opposition: Madigan: "Whether the Seventh Circuit erred in holding, in an acknowledged departure from the rule in at least four other circuits, that 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 [an annotated version of this statute is available to lexis.com subscribers] ." Levin: "When Congress applied the Age Discrimination in Employment Act, 29 U.S.C. §§ 621, et seq. (ADEA) [annotated version] to public employers in 1974, did Congress intend to preclude Constitutional Equal Protection age discrimination claims?"
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