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Supreme Court Dismisses Review of Age-Bias Case 
 

10/16/2013  By Joanne Deschenaux 
 
 

In a one-sentence order, the U.S. Supreme Court dismissed as “improvidently granted” its review in a case that addressed the question of whether state and local government workers may file constitutional claims of age discrimination, instead of pursuing their complaints under the Age Discrimination in Employment Act (ADEA) (Madigan v. Levin, No. 12-872). The high court, which issued the dismissal on Oct. 15, 2013, heard arguments in the case on Oct. 7, the opening day of the 2013-14 term.

ADEA sets forth requirements that employees “exhaust their administrative remedies” before filing a lawsuit. These include filing a charge with the Equal Employment Opportunity Commission and allowing time for the EEOC to settle the dispute. Constitutional equal-protection claims are brought under the Civil Rights Act of 1871 (42 U.S.C., Section 1983), which allows plaintiffs to go directly to court. In addition, unlike under ADEA, employees can seek punitive damages under Section 1983.

The order ended the court’s review of a 7th U.S. Circuit Court of Appeals decision that permitted Harvey Levin, a former Illinois state assistant attorney general fired at age 61, to bring Section 1983 claims against Illinois Attorney General Lisa Madigan and other state officials.

In his Supreme Court brief, Levin noted that the trial court had ruled he was not an ADEA-covered “employee” because he fell within a statutory exception for policymaking officials. Therefore, the question Madigan presented—whether ADEA is the exclusive remedy for public employees covered by the act—was not raised by his case, Levin said.

In addition, during the oral argument the justices debated whether the case should be before them because the 7th Circuit was ruling only on the trial court’s denial of qualified immunity to the state defendants and never needed to address the ADEA issue.

Because of the justices' dismissal, the 7th Circuit decision in favor of Levin remains in force.

Joanne Deschenaux, J.D., is SHRM’s senior legal editor.


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