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Argument preview: What’s the remedy for age bias?

At 10 a.m. Monday, the Supreme Court opens a new Term with a one-hour oral argument testing what Congress must do to displace a right to sue directly under the Constitution with remedies under a specific civil rights law.  Arguing for the state of Illinois in Madigan v. Levin (12-872) will be Michael A. Scodro, the state’s solicitor general.  Representing Harvey Levin, a fired state employee claiming age bias, will be Chicago attorney Edward R. Theobald III.

An individual who believes that the government has violated his rights sometimes has a choice about how to pursue a legal protest: the right may be protected by a specific law, and it might also find some shelter in the Constitution itself.   Such an individual’s lawyer can usually be relied upon to pick the option with the best chance of winning — if the choice is really an open one to make.

But, from time to time, the Supreme Court has said that, if Congress has passed a law that provides a full-scale mechanism for protecting an individual right, then the option of a constitutional claim is off the table.  Whether Congress has done that, when the individual’s claim is one of age discrimination in the workplace, is the issue that the Court will confront in Madigan v. Levin — a case the Justices took on because lower courts are divided on the question.

Besides settling that specific issue, this case may also lead the Court to spell out more fully how the lower courts are to decide when the constitutional option is, or is not, available: in other words, what is the formula for finding that option to be open, or closing it off?


In May 2006, Harvey N. Levin was a sixty-one-year-old Illinois lawyer, working in Chicago as a senior assistant state attorney general handling consumer fraud cases.  He had received what he considered to be positive evaluations of his work during the nearly six years he was on the staff.

But he was fired on May 12, 2006.  His superiors said that he had problems with “low productivity, excessive socializing, inferior litigation skills, and poor judgment,” and they insisted that he had been told of these complaints before he was fired.

After he was let go, he was replaced by a female attorney in her thirties.   Two other male lawyers on the consumer fraud staff also were fired and were replaced with younger attorneys — one male and one female.  The superiors in the office argued that these hires were not direct replacements, because the new counsel were not assigned to the same cases.

Levin took his protest over alleged discrimination in firing to the U.S. Equal Employment Opportunity Commission and to an Illinois human rights agency.  He gained the right to sue in federal court.

In August 2007, Levin sued his former bosses, including Attorney General Lisa Madigan, in federal court in Chicago, claiming that his firing violated his rights against age bias and gender discrimination.  His age bias claim was based on the federal Age Discrimination in Employment Act of 1967, and his gender bias claim was based on Title VII of the 1964 federal civil rights law.  (Although the ADEA was first enacted in 1967, it was not applied to public employees until 1974.)  Levin’s lawsuit also made constitutional claims, under the general civil rights law, so-called Section 1983, arguing that both forms of intentional discrimination were outlawed by the Fourteenth Amendment’s equal protection guarantee.

After considerable legal maneuvering, before two different district court judges, Levin’s claims under the two specific civil rights laws were thrown out, but his constitutional claims under Section 1983 of an 1871 civil rights law were declared fit for a jury trial.  Ultimately, the case reached the Seventh Circuit Court, with the state contending that the age bias law barred his constitutional claim on that point.

The Seventh Circuit, breaking ranks with all other federal appeals courts that had ruled on the issue, decided that the ADEA did not displace Levin’s age discrimination claim under the Fourteenth Amendment, thus clearing the way for trial on that point.   The case has not gone to trial, since the state took the case on to the Supreme Court.

Two approaches to age bias

If an individual files a lawsuit based on Section 1983 of the 1871 law, the rights are not directly protected by that provision, but it provides the basis for suing to claim a violation of a right protected directly by the Constitution.  Age, however, is not a category that the Supreme Court has  recognized as one entitled to strong protection under the Constitution — including the Fourteenth Amendment, which protects against discrimination by state and local government.  Race, by contrast, gets the strongest constitutional protection against bias.

Still, an individual who claims age discrimination can make such a claim under the Constitution, and the government official or agency sued can counter by arguing that the action was justified by the lowest legal standard — that is, the official action had a rational basis, and it was related to a legitimate purpose.  The individual suing must prove that the discrimination was done intentionally.

If an individual opts to pursue an age bias claim under the ADEA, the protection available is greater than would be true under the Constitution, but the individual has to go through a complex procedural path to assert the claim.   The challenged action must satisfy a tougher legal test, and the ADEA outlaws not only intentional age bias, but also actions that have the effect of discrimination based on age.  No constitutional claim can be made under the ADEA, however; it is limited to only those rights established by that law.

Before an individual may go to court with an ADEA claim, though, he must first take a complaint to the EEOC, where an attempt to resolve the dispute goes forward.  Later, he can sue, unless the EEOC itself does so.

Thus, the two approaches differ in some significant respects, and that difference may be a factor — and, indeed, was a key factor in Harvey Levin’s case in the Seventh Circuit Court — in determining whether the ADEA displaces constitutional age bias claims.

Petition for certiorari

Illinois Attorney General Lisa Madigan and members of her staff leadership filed their petition in the Supreme Court last January, raising a single question:  whether state and local government employees may bypass the “comprehensive remedial scheme” under the ADEA by filing an age discrimination claim under the Equal Protection Clause, through a Section 1983 lawsuit.

The two main thrusts of the state’s argument were that the courts of appeals are split, with the Seventh Circuit in this case deviating from the others in allowing an age bias claim to go forward directly under the Constitution, and that the Supreme Court had already made clear in prior rulings that Congress does displace a constitutional claim when it enacts a “comprehensive remedial scheme” like the ADEA.

“The question,” the petition contended, “is of exceptional importance to state and local government employers, and the Seventh Circuit’s decision not only adds to the conflict among lower federal courts, but it reaches the wrong result by misreading this Court’s case law.”  The Supreme Court, though, has not yet addressed the specific issue at stake.

It added: “Allowing state and municipal employees to sue separately under Section 1983 invites them to evade the ADEA’s carefully constructed remedial regime in obvious ways.”  Among the ways it cited was that the complaint can go directly into court, pushing aside the ADEA’s goals of trying to resolve workplace disputes without litigation, and that an individual could bypass the EEOC despite the critical role Congress has assigned to that agency in monitoring workplace bias.  Moreover, those suing under the Constitution can seek punitive damages, while those are barred under the ADEA.

There are about twenty million state and local government workers across the country, the petition said, and the nature of their legal rights on age discrimination should not depend upon where they live.

Illinois’ petition had the support of twelve other states and by the International Municipal Lawyers Association.

Harvey Levin’s lawyers urged the Supreme Court to refuse review of the case, arguing that the Supreme Court had issued two decisions that already answer the question.  In a 2009 decision, in Fitzgerald v. Barnstable School Committee, the petition said, the Court had ruled that it is not likely that Congress intended to bar constitutional claims when it passes laws with significantly different protection.  And in a 2000 decision, in Kimel v. Florida Board of Regents, the petition added, the Court ruled that the ADEA is not designed to prevent constitutional violations based on age bias.

Although the courts of appeals are split on the issue of the ADEA’s impact on constitutional age bias claims, the Levin petition contended that the courts that have ruled in favor of ADEA displacement are based on “decades-old decisions” and on decisions that did not examine Congress’s intent in 1974 in adding public employees to the ADEA’s protection.

Moreover, the brief in opposition contended, the split upon which Illinois relies is neither wide, deep, nor persistent.

The Supreme Court granted the state’s petition for review on March 18, and later scheduled the case for oral argument on the opening day of October Term 2013, next Monday.

Briefs on the merits

The Illinois merits brief generally relies most heavily upon the Supreme Court’s 1981 decision in Middlesex County Sewerage Authority v. National Sea Clammers Association, and later decisions that play off of that precedent.

The Sea Clammers decision, it argued, established a rule that “presumes that Congress meant to bar competing [constitutional] claims under Section 1983 when these claims would upend a comprehensive federal regime targeting the same harm.”

Congress, the brief said, “has created an exhaustive regime for redressing age discrimination claims, including special rules for certain government employees.  This easily demonstrates Congress’ intent to displace competing remedies under Section 1983.”

The Seventh Circuit got around this clear implication of congressional intent, the state contended, by announcing “a more rigorous test for displacing Section 1983 claims,” and that is a test which is not supported by the Supreme Court precedents on which the Seventh Circuit relied.

Under the Seventh Circuit’s new test, the brief said, courts are required to look for explicit statements in the legislative history of a federal rights law of an intent to put aside constitutional claims, and must make a close examination of how the two legal regimes might differ.  Moreover, the brief added, the Circuit Court relied improperly upon the notion that displacing a Section 1983 claim is a form of implied repeal of a pre-existing constitutional claim.

The brief conceded that it is difficult to win a case based on a constitutional claim, but it asserted that such claims readily survive motions to dismiss and “they carry high discovery costs and the threat of punitive damages.”

The brief dwelled at considerable length upon the details of the ADEA remedial regime, and stressed the considerable values that it serves, especially in giving state and local governments an opportunity to seek conciliation or their workers’ claims and the opportunity to avoid the risks of significant litigation.

Harvey Levin’s brief on the merits sought to make much of the fact that, in the district court, he was found not to be an employee who is entitled to protection under the ADEA.  Thus, the brief said, he “has no interest in whether workers who are covered by the ADEA can bring such Section 1983 actions, and the resolution of that issue would not affect Levin’s own claim.”

What this case is about, Levin contended, is whether ADEA can bar a constitutional age bias claim by a worker who is not covered by ADEA.  If that is so, the brief said, workers like him would be left without any remedy when they are victims of age discrimination.

Much of the argument in this brief relied upon the fact that, under Supreme Court precedent, a constitutional claim cannot be made under the ADEA.  Thus, the ADEA is, at most, a supplement by Congress to already existing remedies — that is, a remedy for public employees under the Fourteenth Amendment.

The precedents upon which Illinois has relied, including especially the Sea Clammers decision, deal with the very different issue of whether a newly enacted set of remedies are incompatible with existing remedies, the brief said.  Levin should be free to go to trial on his constitutional claim, his brief contended, because he is no longer seeking to enforce any protections that the ADEA affords to workers.

At the merits stage, the state has picked up the support as amici of nine additional state governments, along with additional associations linked to state and local government operations.

Levin’s side drew the support primarily of labor unions and a senior citizens’ advocacy group.  Perhaps the most significant amicus brief on that side of the case was filed by a group of law professors, making an argument that neither of the parties raised: that is, whether the Seventh Circuit lacked the authority, in the pre-trial stage of Levin’s case, because its review violated the rule that such appeals should come only after a final decision in the trial court.  The state of Illinois used only two pages of its reply brief in an attempt to show that the court of appeals did, indeed, have jurisdiction to decide the ADEA displacement question.


The oral argument in this case will be important on both a procedural level, and on a substantive legal level.  If the Justices have any interest in the claim by the amici law professors’ argument that the court of appeals took on the case prematurely, that should emerge in questioning from the bench.  The state clearly is not much worried about that, since it took little effort to refute the idea that the case should go back to the trial court.   The jurisdictional issue might turn out to be only an escape hatch, should the Court have difficulty on the legal issue on which it granted review.

On that question, it is fair to say that each side in this case can marshal prior Supreme Court rulings that should dictate a victory for their side.  On Illinois’ side, the Court has said often that full-dress administrative schemes for resolving federal legal claims should be allowed to work, without the diversion of those issues into constitutional litigation.  On Harvey Levin’s side, however, the Court also has demonstrated that it has some reluctance to bar legitimate constitutional claims.  At oral argument, it will be worth noting which side’s precedents show support from the bench.

Perhaps the most challenging issue for the Justices will be reacting to the Seventh Circuit’s new analytical approach, its suggestion that courts must make penetrating analyses of the legislative history to determine just what Congress’s intent was when it crafted a new remedial regime.  With some of the Justices, notably Antonin Scalia, quite allergic to using legislative history to determine anything about Congress’s supposed legislative intent, the Seventh Circuit test may be a red flag.

But, as an alternative mode of analysis, it may not be very productive — or satisfying — to focus only on the final textual language of the ADEA to determine what Congress had in mind about the displacement issue.  The Seventh Circuit went behind the wording of ADEA, it said, because “we do not believe Congress’s intent is as apparent as other circuit courts have found.”

Recommended Citation: Lyle Denniston, Argument preview: What’s the remedy for age bias?, SCOTUSblog (Oct. 3, 2013, 12:03 AM),