Monday, March 18, 2013
The Supreme Court today granted cert in Madigan v. Levin, an ADEA case from the 7th Circuit. Here is the issue:
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.
The other circuits to have considered the issue, the 1st, 4th, 9th, and 10th, had held that the ADEA implicitly foreclosed bringing an age discrimination claim directly under the equal protection clause using § 1983 as a vehicle. District courts, though, are split on the issue, and the 7th Circuit's decision brought that split to the circuit level. The cert petition is here for those interested.
This case is particularly interesting because individuals are not liable under the ADEA, but would be under the Equal Protection clause and § 1983. And with states immune from damages under the ADEA, this would allow an avenue of relief for discrimination that would also violate the Equal Protection clause--something Congress could make states liable for damages for.