Every federal appellate circuit to have considered the issue has held the Age Discrimination in Employment Act (“ADEA”) to be the sole remedy for federal age discrimination claims. That is, until the August 2012 decision of the Seventh Circuit Court of Appeals in Levin v. Madigan, 2012 U.S. App. LEXIS 17291 (7th Cir. 2012). The Court found the ADEA is not the exclusive remedy for age discrimination claims. The Court determined the plaintiff could bring an equal protection claim for age discrimination under 42 U.S.C. § 1983. The Seventh Circuit has jurisdiction over Illinois, Indiana, and Wisconsin.
In Levin, Senior Assistant Attorney General Harvey Levin had worked for the Illinois Attorney General’s Office for six years when he was terminated at age 61. Levin filed suit against the State of Illinois, the Office of the Illinois Attorney General, the Illinois Attorney General (in her professional and individual capacities) and four additional Attorney General employees in their individual capacities. Levin’s claims included age and sex discrimination under the ADEA, Title VII of the Civil Rights Act of 1964, and the Equal Protection Clause of the Fourteenth Amendment via § 1983 (a claim available only against state and local governments).
Because states are immune from money damages under the statute, the only cognizable relief under the ADEA for public employees age 40 and older is equitable relief. However, § 1983 permits suits to enforce individual rights under federal statutes and the Constitution against state and local government officials. Although § 1983 does not create substantive rights, it is a vehicle to vindicate federal rights granted elsewhere and to access those available remedies.
At the district court, the defendants sued in their individual capacity argued that they were entitled to qualified immunity for Levin’s §1983 age discrimination claim because the ADEA is the exclusive remedy for age discrimination claims. The district court disagreed and the Seventh Circuit Court of Appeals affirmed that decision.
The Seventh Circuit found the text and legislative history of the ADEA show the statute provides different rights and protections than does § 1983, and thus it does not preclude an equal protection constitutional claim:
[T]he ADEA does not purport to provide a remedy for violation of federal constitutional rights and no express language indicates that Congress intended to foreclose relief under § 1983 for constitutional violations. [Citation omitted.] Beyond that, we have a hard time concluding that Congress’s mere creation of a statutory scheme for age discrimination claims was intended to foreclose preexisting constitutional claims. Congress frequently enacts new legal remedies that are not intended to repeal their predecessors.
In addition to holding that an employee can sue a state directly for equal protection violations related to age, the Seventh Circuit held that the defendants sued in their state-official capacity were not entitled to qualified immunity from damages. 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. At the time of the alleged wrongdoing, it was clearly established that age discrimination in employment violated the Equal Protection Clause. Thus, the Court concluded the individual defendants were not entitled to qualified immunity.
Employers have long operated under the assumption that the ADEA is the only vehicle for a federal age discrimination claim is under. Now, at least for state and local government employers, that assumption may no longer be valid.