The U. S. Supreme Court has granted certiorari in an important public sector employment case. Specifically, the Supreme Court will decide whether an employee of a state or local government can bring suit for age discrimination under 42 U.S.C. §1983 (Section 1983) to enforce the Equal Protection Clause of the Fourteenth Amendment or whether such suits are precluded by the Age Discrimination in Employment Act (ADEA).
The decision will be significant to public sector employers for at least five reasons:
(1) State employees cannot recover damages against their employer under the ADEA because such claims are barred by sovereign immunity, but there is no such bar under Section 1983.
(2) The ADEA does not allow for suit against individual defendants, but Section 1983 does.
(3) The ADEA expressly limits or exempts claims by certain individuals, including elected officials and certain members of their staff, appointees, law enforcement officers, and firefighters, but Section 1983 contains no such limitation.
(4) The ADEA requires employees to file an administrative charge of discrimination with the EEOC and holds aggrieved employees to strict statutes of limitation, but Section 1983 allows employees direct access to courts without those hurdles; and
(5) Section 1983 allows for potentially unlimited damages whereas suits under the ADEA are subject to a damages cap.
Simply, Section 1983 opens a huge can of worms for public sector employers.
For you history buffs out there, Section 1983 was enacted during Reconstruction by providing a remedy to individuals denied constitutional rights by states or “under color of state law.” The purpose of Section 1983 was to provide a remedy for individuals aggrieved by a state where none previously existed.
Before last August, every federal appellate court to address the issue, including the Ninth Circuit, had found that the ADEA precluded a claim for age discrimination under Section 1983. Generally speaking, when a statute allows for a “comprehensive remedial device,” claims under Section 1983 are precluded. All of the appellate courts to have considered this issue had found that the ADEA offered a comprehensive remedy to aggrieved state employees and thus refused to allow claims under Section 1983.
Last August, however, in Levin v. Madigan, the U.S. Court of Appeals for the Seventh Circuit became the first appellate court in the country to find that the ADEA did not preclude a claim for age discrimination under Section 1983. Although it acknowledged that it was a “close call,” the Seventh Circuit found that the ADEA did not preclude a claim to enforce a constitutional provision, but rather only precluded a claim arising out of a statute.
The Supreme Court does not tip its hand as to why it took up a case or how it is leaning, but to be sure, it took this case to resolve the split between the circuit courts. The Supreme Court has a mixed record on Section 1983 preclusion cases, but recently it has found claims to be precluded in a variety of contexts,. But, it recently found that Title IX of the Education Amendments of 1972, which prohibits discrimination by educational institutions, did not preclude a claim for damages under Section 1983 claim despite Title IX’s broad remedial scheme. The case should be decided in the Fall Term of 2013 and we will keep you posted with any updates.