Tuesday, August 21, 2012

Seventh Circuit: No Qualified Immunity Against Age Discrimination Claim Under Equal Protection

A three-judge panel of the Seventh Circuit ruled last week in Levin v. Madigan that individual defendants were not entitled to qualified immunity against a plaintiff's equal protection claim.

As part of the ruling, the panel also held that the Age Discrimination in Employment Act, or ADEA, did not preclude the plaintiff's Section 1983 claim based on the Equal Protection Clause.  This holding puts the Seventh Circuit at odds with every other circuit that's ruled on the question, creating a split.  (District courts outside those circuits are themselves split.)  Because of this, the panel circulated the opinion to all the judges on the Circuit; none voted for a rehearing en banc.  This case looks like a good candidate for Supreme Court review.

Unless and until the case goes up, the Seventh Circuit's ruling means that the plaintiff's Section 1983 case against the individual defendants can move forward.  The ruling says nothing about the merits.

The case arose out of a former assistant attorney general's suit against the Illinois attorney general, in both her official and individual capacities, and the state for firing him and replacing him with a younger attorney.  The plaintiff sued for age discrimination under the ADEA and Section 1983 (under the Equal Protection Clause).  The AG appealed the district court's denial of qualified immunity in her individual capacity.

The Seventh Circuit ruled that the ADEA did not displace the plaintiff's Section 1983 claim for violation of the Equal Protection Clause because (1) the ADEA's text and legislative history didn't expressly preclude a Section 1983 claim based on a constitutional violation and (2) the ADEA's rights and protections didn't line up with the rights and protections under Section 1983.

This portion of the opinion is at odds with every other circuit court to rule on the question.

The court went on to deny qualified immunity, because it was clearly established that age discrimination in employment violated the Equal Protection Clause, so long as the discrimination wasn't rationally related to a legitimate government interest.



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