On August 5, 2016, the U.S Court of Appeals for the Ninth Circuit held that the Age Discrimination in Employment Act (ADEA) does not preclude a First Amendment retaliation claim under section 1983 of the federal Civil Rights Act. Stilwell v. City of Williams, No. 14-15540, __ F.3d __ (9th Cir. Aug. 5, 2016). The decision is significant because section 1983 may now provide a remedy to a public-sector employee alleging retaliation, based on age discrimination, against a state or local government entity or official. In contrast, no such remedies are available under the ADEA because the U.S. Supreme Court has held that the Eleventh Amendment provides immunity from ADEA claims against state actors. Section 1983 is thus an alternative avenue for a public employee to challenge a public employer’s alleged retaliatory conduct for exercising free speech in the age discrimination context.
In addition, despite Congress’s intent “to impose on the states a liability more limited than that available under § 1983,” the Ninth Circuit retreated from its broad prior ruling in Ahlmeyer v. Nevada System of Higher Education1 declaring the ADEA the “exclusive enforcement mechanism” for section 1983 equal protection claims based on age discrimination because of its comprehensive remedial scheme.
The Stilwell case arose when the City of Williams, Arizona, allegedly terminated a city employee after he signed a sworn statement and planned to testify in another lawsuit relating to age discrimination. The district court granted summary judgment for the City on the section 1983 claim, finding that the ADEA foreclosed that claim under Ahlmeyer. Distinguishing its holding in Ahlmeyer, as explained in more detail below, the Ninth Circuit reversed and remanded to the district court.2
The ADEA forbids discrimination based on age when making employment decisions. The retaliation provision provides:
It shall be unlawful for an employer to discriminate against any of his employees or applicants for employment . . . because such individual, member or applicant for membership has opposed any practice made unlawful by this section, or because such individual, member or applicant for membership has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter. 29 U.S.C. § 623(d).
Under section 1983, an individual may challenge an action committed under “color of [State] law” that deprived the individual of federal constitutional or statutory rights, but only if Congress has not indicated an intent in another statute to preclude such suits.
The Stilwell court relied on four leading U.S. Supreme Court cases to determine whether Congress intended to preclude a remedy under section 1983: Middlesex County Sewerage Authority v. National Sea Clammers Association; Smith v. Robinson; City of Rancho Palos Verdes, California v. Abrams; and Fitzgerald v. Barnstable School Committee.
Based on those cases, the Ninth Circuit in Stilwell explained:
[W]hen Congress creates a right by enacting a statute but at the same time limits enforcement of that right through a specific remedial scheme that is narrower than § 1983, a § 1983 remedy is precluded . . . When a right is created by the Constitution, however, and a statute merely recognizes it or adds enforcement options, the analysis differs. [I]n that situation, if the statute’s rights and protections diverge in “significant ways” from those provided by the Constitution, a § 1983 remedy is not precluded.
The Stilwell court thus focused on disparities in “the substantive rights and protections” between section 1983 equal protection age discrimination suits and First Amendment retaliation suits, identifying, for example, differences in who may sue and be sued, the burden of proof for causation, and remedies. Reasoning that the ADEA retaliation provision provides less protection than does the First Amendment, the court concluded that, absent an express statement to the contrary, Congress did not intend to preclude section 1983 First Amendment retaliation suits. Having ruled based on its interpretation of Congress’s intent, the court underscored its holding by briefly examining the importance of speech in democracy and the heightened level of protection the Constitution affords First Amendment rights (as compared to disability or age discrimination under the Equal Protection Clause).
The court rejected the defendants’ argument that the Ahlmeyer decision compelled a different result. In that case, the ADEA’s comprehensive remedial scheme—and its narrower protection—underpinned the court’s holding that the Act “should be read as precluding § 1983 actions” asserting age discrimination, “even those seeking to vindicate constitutional rights.” This was so even though it left plaintiff without a federal forum for such claims because the Eleventh Amendment barred her ADEA claim. The court in Stilwell also relied on the ADEA’s more restrictive scheme for its holding, but distinguished Ahlmeyer because the ADEA in the age discrimination context provides broader protection than the Constitution. As the dissent aptly noted, however, “[w]hile the majority’s opinion is quite persuasively written, I am not quite persuaded because I do not believe that in creating this relatively simple piece of legislation Congress held two very different intentions regarding the ADEA.”
In sum, Stilwell establishes this legal contradiction: Those who allege retaliation, not necessarily because of their age but because they have identified and alleged age discrimination, may vindicate their rights under section 1983 (subject to other requirements). But for those who have allegedly been discriminated against because of age—and for whom the ADEA was primarily designed—the ADEA is the exclusive remedy.