Blog: The California Workplace Advisor

In 2007, Facebook CEO Mark Zuckerberg infamously told participants at a startup conference that younger is better.  “I want to stress the importance of being young and technical,” he stated. “Young people are just smarter.  Why are most chess masters under 30? I don’t know.”  It seems that many in the technology industry took Zuckerberg’s words to heart.  According to a New York Times article published earlier this year based on a report by PayScale, only six out of thirty-two leading technology companies have workers whose median age is at 35 or higher.

Age discrimination suits are on the rise.  In one of the more notable suits in recent years, Brian Reid sued Google, Inc., his former employer, on numerous grounds, including a claim for age discrimination under the California Fair Employment and Housing Act.  Reid alleged that Google employees told him told him that his opinions and ideas were “obsolete” and “too old to matter,” that he was “slow,” “fuzzy,” “sluggish,” and “lethargic.”  The case was later settled out of court.

This Monday, October 7, 2013, the Supreme Court will hear arguments for both broadening and narrowing the procedural channels for state employees to bring age discriminations suits.  In March of this year, it granted certiorari in Madigan v. Levin.  In the lower court case, Levin v. Madigan, 692 F.3d 607 (7th Cir. 2012), the Seventh Circuit held that state and local government employees are not limited by the ADEA’s comprehensive remedial regime and instead may bring age discrimination claims under the Equal Protection Clause of the 14 Amendment via 42 U.S.C. § 1983.  The Madigan court ruled the opposite way of several other appellate courts.

In Madigan, Harvey N. Levin worked as an Illinois Assistant Attorney General from September 5, 2000 until his termination on March 12, 2006.  Levin was over 60 at the time of his termination and alleges he was replaced by an attorney in her thirties.  Levin asserted claims of age and sex discrimination under the ADEA, Title VII of the Civil Rights Act of 1964, and § 1983 against the State and various individuals.

The Supreme Court is poised to decide whether the ADEA precludes any relief available under Section 1983 for state and local government employees.  The Supreme Court has previously held that “[w]hen remedial devices provided in a particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude the remedy of suits under § 1983.”  Middlesex Cnty. Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 20 (1981).  In ruling that the ADEA’s regime is not an exclusive remedy for state employee age discrimination claims, the Seventh Circuit noted that while the ADEA’s remedial regime is comprehensive, there is no explicit language in the Act’s legislative history or in the statutory language itself that suggests Congress intended to preclude plaintiffs from exploring alternative constitutional remedies for age discrimination claims.  Next, the Court examined whether the ADEA is specifically designed to address constitutional issues.  It noted that the rights and protections afforded by the ADEA and § 1983 differ.  A plaintiff who brings a § 1983 claim may file suit against an individual or even a government organization in certain circumstances, whereas an ADEA plaintiff may only sue their employer, employment agency, or a labor organization.  The ADEA also excludes certain plaintiffs that § 1983 does not, for example, employees under forty.

The Attorney Generals of 21 states have filed an amicus brief in support of the State, arguing that the lower court’s decision would deprive them, as state employers, of the ADEA’s comprehensive process.  In contrast, AARP, Inc. and the National Senior Citizens Law Center argue in their amicus brief that denying state employees the right to bring Section 1983 claims would deny them a federal damages remedy for age discrimination (the Supreme Court previously held that the ADEA does not abrogate States’ sovereign immunity to suits by private individuals, limiting state employees’ monetary damages claims for age discrimination to those claims brought under state age discrimination statutes.  See Kimel v. Florida Bd. of Regents, 582 U.S. 62., 91 (2000).) 

The Supreme Court will soon have its final say on the rights of state employees to sue for age discrimination.  A recent case,  Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246 (2009) may provide a hint as to the potential outcome.  In Fitzgerald, the Court considered whether Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, precludes § 1983 claims.  It held it does not, relying on some of the same reasoning applied by the Seventh Circuit.  If the Seventh Circuit decision is affirmed, state employees will be able to bypass administrative remedies and head straight to the courts.  State employers should consider themselves forewarned.